A Trump-era government policy providing for the mass collection and indefinite retention of visa applicants’ social media identifiers is at the heart of a First Amendment lawsuit, Doc Society v. Blinken, filed in 2019 by the Knight Institute, the Brennan Center for Justice, and Simpson Thacher & Bartlett. The Knight Institute’s lead litigator in the case is Senior Staff Attorney Carrie DeCell, who spoke recently about the lawsuit and the policy, which is currently under review by the Biden administration. For DeCell, the surveillance policy creates what is, in effect, a social media dragnet that chills the speech and association of millions of people around the world, yet does little to address national security. An edited transcript of that conversation follows.
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President Biden revoked the Trump administration's Muslim ban shortly after he took office. Yet some of the policies established in connection with the ban remain in place, including a requirement that U.S. visa applicants register their social media handles with the government. The Biden administration has said it's reviewing those policies; what's at stake in that review?
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That's right. One of those policies is the State Department requirement that visa applicants register all the social media handles that they’ve used on any of 20 specified platforms in the five years preceding their applications. This requirement is the linchpin of a surveillance system that allows the government to scrutinize visa applicants' expressive and associational activities online even after they enter the United States. That information is then indefinitely stored in government databases, including at the Department of Homeland Security, and shared widely among other federal agencies. It can be disseminated in some circumstances, even to foreign governments. This is a social media dragnet that has a dramatic chilling effect on the speech and associations of millions of people around the world.
In 2019, you brought a lawsuit over the program on behalf of two U.S.-based documentary film organizations. Why sue on behalf of documentary filmmakers?
We sued on behalf of Doc Society and the International Documentary Association, two leading U.S.-based documentary film organizations. They routinely collaborate with filmmakers and other partners from around the world and, in doing so, rely on social media to communicate with their members and promote their work, as well as to research topics for new programs that the organizations run. As a result of the registration requirement, many of the organizations’ members and partners are no longer willing to speak freely on social media or to apply for visas to come to the United States, whether to work here, see their family members here, or—importantly for IDA and Doc Society—attend conferences, film screenings, workshops, and other events that these organizations host here. That has a dramatic impact on the organizations’ ability to carry out their missions.
What are the lawsuit's concerns specifically around issues like the loss of user anonymity and self-censorship?
This requirement is especially burdensome for visa applicants who use pseudonyms on social media, many who do so to protect themselves from retaliation or reprisal by government or private actors. These include dissidents from around the world, as well as reporters or investigators who are going up against big companies or are working on big stories that might involve dangerous actors. The registration requirement effectively requires all of these people to surrender their anonymity and risk that their identities will be shared with the government or the private actors that they fear, just in order to apply for entry into the United States.
At the end of the day, if people are forced to disclose their pseudonymous social media handles and give up their right to online anonymity, they may just decide not to come to the United States because they're too concerned about this information ending up in the wrong hands. Alternatively, they may still need to come to the United States and, as a result, will just stop using social media in order to protect themselves from whatever reprisals they might otherwise suffer. That really gets to the self-censorship concern.
Beyond that, there's a real question as to whether or not the government can even effectively interpret the communications that it’s surveilling on social media. The government has a history of misinterpreting speech posted on social media. The Brennan Center (our co-counsel on this case) has done a really good job of documenting these examples.
How do you weigh those privacy and free speech rights against national security concerns?
The government hasn’t explained with any specificity why it needs to conduct this kind of social media surveillance—it’s just gestured abstractly at national security and the need to adjudicate visa applications. When we’re talking about the rights of individuals to speak freely online—and the rights of U.S. citizens and residents to hear that speech—we need a much closer examination of the government’s interests and much more serious consideration of the First Amendment implications.
It’s worth noting that no one has challenged the government's authority to conduct suspicion-based social media surveillance—as opposed to the dragnet surveillance at issue in our case. If the State Department has good cause to look into a particular applicant further, it can do that. What it shouldn’t be doing is collecting social media handles even when there’s no individualized need for it.
What we’re taking issue with is this dragnet program where 14.7 million people—in the State Department’s own estimate—are being subject to effectively limitless social media surveillance. The surveillance can track back many, many years, and it can drag forward indefinitely. It’s the expansive nature of this particular requirement and the data that the government is collecting that strikes us as inherently out of balance with the First Amendment rights at stake.
The lawsuit also argues that the policy violates the Administrative Procedure Act. Could you explain that, and also explain why the Institute believes collection of social media handles isn't necessary to establish visa applicants' identity or visa eligibility.
The Administrative Procedure Act [APA] requires that agency regulations conform with statutory law. The statute that gives the State Department authority to collect this kind of information from visa applicants is the Immigration and Nationality Act. And that statute tells the State Department that it can collect information as “necessary” to determine visa eligibility, or to identify any threats to national security, et cetera. The APA also requires agencies to adopt evidence-based regulations and have good reasons for imposing regulatory burdens.
Here, there’s no evidence that social media surveillance, especially this kind of dragnet social media surveillance, is an effective tool in identifying national security threats or determining visa eligibility. Different government agencies have run pilot programs in the past to try to establish that this is a useful tool, and those pilot programs have failed to establish that it is. So it’s not even clear that this surveillance is useful; it’s certainly not clear that it’s necessary.
Could you also talk about how listeners' rights figure into all of this since that's one of the First Amendment claims in the lawsuit?
The two documentary film organizations that we represent want to invite filmmakers from around the world to come speak to U.S. audiences, and also want to engage with those filmmakers and other partners over social media—to hear the stories that they have to share both online and in-person. The Supreme Court has recognized for a long time that people in the United States have a right to hear from people from outside the United States, and that that’s a core component of the freedom of speech under the First Amendment, the freedom to receive ideas from folks from outside the United States.
Here, the chilling effect of the registration requirement impacts speakers as well as listeners. The registration requirement deters people who decide to apply for U.S. visas from freely sharing their views and engaging with others on social media, for fear that their speech will be misinterpreted or used against them in some way or circulated to their home governments or other actors who could use it against them. At the same time, it also deters other people from even applying for a U.S. visa to come to the United States in the first place, because they don't want to have to subject their online speech to this U.S. government surveillance. In either case, we in the United States are deprived of opportunities to hear from these people either online or in person.
Could this border-based security measure extend to U.S. citizens themselves, especially journalists who might be questioned or detained in the name of national security based on the social media information the government obtains during re-entry? And wasn't there, in fact, a complaint filed by a number of U.S. citizens challenging searches of their cell phones and other electronic devices by border agents?
Yes, that’s right. The government has claimed the authority to conduct suspicionless searches of U.S. citizens and other travelers’ electronic devices under what’s called the border search exception to the Fourth Amendment’s warrant requirement. Through these searches, they have collected individual social media handles, so the upshot is the same. We haven’t seen any effort by the government to have all U.S. citizens register their social media handles with the government, and I think courts would view that requirement as clearly unconstitutional right off the bat. However, any single person who’s crossing an international border could be pulled aside and subjected to one of these suspicionless searches. The Supreme Court recently declined to hear the case that you referenced, Merchant v. Mayorkas, on appeal from a First Circuit decision. As it currently stands, the government can still conduct these searches of any of us crossing the border or coming through an international airport, or driving across from Canada or Mexico. They can pull us aside and say, “Turn over your cell phone or your laptop, and unlock it for me. I’m going to scroll through and see what I can find there.”
Oftentimes, the government, as part of the searches, does collect social media handles. We know this because the Knight Institute has been, for a long time, in litigation over a FOIA [Freedom of Information Act] request for documents relating to the government’s authority to search devices at the border. We’ve collected thousands of pages of search reports where we can quite clearly see that border agents list out individuals’ Facebook handles, Instagram handles, Twitter handles, YouTube, whatever. Then those search reports are maintained in government databases that the government can come back to and use to see what you’ve been saying on social media lately.
Where do the government's visa vetting program and our legal challenge stand now?
The Biden administration is still reviewing the social media registration requirement. The case that we’re currently litigating on behalf of Doc Society and IDA is now stayed pending the completion of that review. The court has asked the government for updates on the status of that review, with the expectation that it will impact whether or not the social media registration requirement remains in place going forward. But for now the requirement is still in effect, and the data that the State Department is collecting is presumably still being kept in State Department’s and Department of Homeland Security’s databases.
This kind of surveillance is really troubling. In the Civil Rights era, the Supreme Court recognized that requiring people to register their beliefs, their associations, their speech with the government violated their First Amendment rights. In those days, the government would have had to wiretap millions of homes and offices, meeting houses, and other locations to collect the kind of information that it can now Hoover up all at once from the comfort of an office cubicle. It’s just the ease with which the government can collect and review massive amounts of expressive data from online sources. It’s giving the government an ever-increasing appetite for that data, despite the ever-present impacts of that kind of surveillance on First Amendment rights.
Visit our case page for the latest updates and more on Doc Society v. Blinken. Knight Institute Research Intern Bilal Choudhry contributed to this article.
A. Adam Glenn was a writer/editor at the Knight First Amendment Institute.