This review signaled that the Biden administration might eventually reverse (or at least narrow) this unjustified and unconstitutional policy. But now the administration is doing the exact opposite, seeking to expand it to another 15 million people per year — visitors to the United States who do not need visas (including many from European countries).
The existing State Department policy casts a wide net. It requires nearly all visa applicants to disclose all social media handles they’ve used during the previous five years on any of 20 different platforms — including Facebook, Twitter and YouTube. The State Department and the Department of Homeland Security can retain this information indefinitely, share it with other federal agencies and disclose it, in some circumstances, to foreign governments.
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The dragnet approach and the indefinite retention of social media information have far-reaching effects, even if they are hard to measure. Many people — scholars, artists and activists — will change the way they use social media if they know that the U.S. government is systemically surveilling their speech and associations. Some will steer clear of controversial topics for fear that their speech might be misunderstood, opting for self-censorship over visa delays or denials. (There may be good reason for self-muting: The nuances of different languages, cultures and contexts make interpreting social media posts extremely difficult, potentially leading U.S. officials to bar foreigners from entry through misunderstandings.) Would-be travelers may also hesitate to engage with others online, concerned that U.S. officials may someday impute an acquaintance’s speech to them. This concern is well-founded: In 2019, a border agent at Boston Logan International Airport reportedly turned away an incoming Harvard freshman from Lebanon because of his friends’ social media posts.
Human rights activists, political dissidents and others who use pseudonymous handles have additional reasons to fear the repercussions of revealing their social media handles to the U.S. government. These travelers face the danger that U.S. officials will intentionally share their handles with foreign governments or inadvertently share them with other third parties (through hacks, for instance). Rather than risk exposure to retaliation by repressive regimes, many of these travelers will simply stop using social media, while others will decide not to travel to the United States — decreasing opportunities for personal connection, professional collaboration and cultural exchange.
As a result, the State Department policy not only burdens the speech and association of millions of people from around the world, but also deprives Americans of opportunities to hear from and interact with those people — whether online or in person — in violation of our own First Amendment rights. For these reasons, more than 50 civil-society groups have condemned the State Department policy, and two documentary film organizations have sued to challenge it. (Our organization, the Knight First Amendment Institute, represents the plaintiffs in that case.)
The government has never adequately explained, let alone provided evidence of, the need for this policy. Obama-era pilot programs did not show that social media screening is a useful visa vetting tool. And during the early days of the Biden administration, the Office of Information and Regulatory Affairs, which analyzes the cost and benefits of regulations, rejected a previous DHS proposal to expand the State Department policy; it concluded that DHS had failed to demonstrate the policy’s “practical utility” or to justify its “monetary and social” costs.
And yet the Biden administration now wants to double down on the Trump-era policy by expanding it. Under the administration’s proposal, U.S. Customs and Border Protection (CBP) would require foreign travelers who apply to enter the United States under the Visa Waiver Program to turn their social media handles over to the government. (At present, this group, travelers from approved countries who wish to come to the United States for short tourism or business stays, can choose not to disclose that information.)
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The question is: Why? More than a year after the Biden administration began to review the usefulness of social media screening for visa vetting purposes, officials have offered no evidence or explanation to justify the policy they inherited from the Trump administration. Yet through the CBP proposal, the Biden administration now seeks to adopt that policy as its own. That’s why the Knight Institute in April filed a Freedom of Information Act lawsuit seeking to bring the findings of the administration’s review to light.
Whatever information that suit turns up, it’s clear that the Biden administration’s proposed policy would have terrible consequences for freedoms of speech and association. This is the kind of policy we ordinarily associate with authoritarian states, not open societies. It does a disservice to our democratic values, and from all available evidence, it’s not even effective. Biden should be ditching this dragnet, not expanding it.