WASHINGTON – In a case challenging a State Department rule that requires nearly all visa applicants to register their social media handles with the U.S. government, today the Biden administration advised the court that it did not anticipate rescinding the rule despite its ongoing review. In March 2021, the court stayed the case pending the government’s review of the rule. Two documentary film organizations—Doc Society and the International Documentary Association—represented by the Knight First Amendment Institute at Columbia University, the Brennan Center for Justice at NYU Law, and Simpson Thacher & Bartlett LLP—brought the legal challenge in December 2019 arguing that the social media registration requirement chills prospective visa applicants from engaging in constitutionally protected speech and association, deters them from applying for visas to travel to the United States, and burdens the ability of U.S. organizations and audiences to engage with filmmakers from around the world.

“We’re disappointed that the Biden administration has decided to double down on this Trump-era policy of mass surveillance of visa applicants’ social media,” said Carrie DeCell, senior staff attorney with the Knight First Amendment Institute. “The requirement is the linchpin of a far-reaching and unconstitutional regime that permits the government to monitor the online activities of millions of visa applicants and to continue monitoring them even after they’ve entered the United States. The government has no legitimate interest in collecting this kind of sensitive information on this immense scale, and the First Amendment doesn’t permit it to do so.”

The State Department rules, which took effect in May 2019, apply to millions of visa applicants each year and require them to register all social media handles—including pseudonyms—that they’ve used on any of 20 platforms in the preceding five years. The State Department and the Department of Homeland Security can retain the collected information indefinitely, share it broadly among federal agencies, and disclose it, in some circumstances, to foreign governments.

The plaintiffs in the lawsuit are Doc Society, a non-profit organization committed to supporting documentary filmmakers and connecting them with global audiences, and the International Documentary Association, a non-profit, membership-based association of documentary filmmakers. Their members and partners include internationally acclaimed documentary filmmakers who come from a variety of countries and represent a range of social and political perspectives. Some use pseudonyms as their social media handles to protect themselves and their families from reprisal by repressive governments or private actors.

The lawsuit challenges both the registration requirement and related retention and dissemination policies. The suit contends that the registration requirement violates the First Amendment because the requirement is not narrowly tailored to the government’s immigration enforcement and national security interests, and that it violates the Administrative Procedure Act because the collection is not “necessary” to establishing visa applicants’ identity or visa eligibility, and because the requirement is arbitrary and capricious.

“Just last year, the White House regulatory office rejected a practically identical proposal from the Department of Homeland Security to collect social media handles on its travel and immigration forms, noting that its usefulness had not been demonstrated and that the Muslim ban—the basis for it—had been repealed,” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “The same is true of the State Department policy, which establishes a digital screening infrastructure that makes it easier to systematically profile. It needs to go.”

Read today’s notice here. 

Read more about the case here. 

Lawyers on the case include Jameel Jaffer, Katie Fallow, Carrie DeCell, Anna Diakun, and Evan Welber Falcón (Knight Institute); Faiza Patel, Rachel Levinson-Waldman, and Harsha Panduranga (Brennan Center); and Joshua Polster and Evan Gilbert (Simpson Thacher).