For privacy wonks and casual observers alike, border screening and surveillance has become an increasing area of critical concern over the last year. Around the world, invasive governments have particularly threatened people’s digital privacy. That extends to the US, where Customs and Border Protection has expanded its demands and searches as well. And a fraught situation for travelers is even more so for US immigrants who are having more and more of their digital and social media footprint monitored by the Department of Homeland Security.
The agency’s recent initiatives came into focus last week, when DHS posted updated language in the Federal Register about collecting “social media handles, aliases, associated identifiable information, and search results” on immigrants, including naturalized citizens and permanent residents. DHS also issued a notice about changes to its Intelligence Records System database that will store “public-source data (including information from social media)” and will gather information from a host of sources, including “commercial data providers and public sources such as social media, news media outlets, and the Internet.”
These initiatives, which began during the Obama administration, claim to be part of standard domestic security screening and background checking. But immigration experts and digital privacy advocates alike are deeply skeptical about how effective social media checks really are. Particularly, they cite the open-ended scope of the surveillance, and potential chilling effects of the dragnet, as critical drawbacks that should give the federal government pause.
“Admissions decisions should be based on specific criteria defined in laws or regulations,” says Edward Hasbrouck, a travel expert and consultant to the freedom of movement group The Identity Project. “What can you and can’t you say on Facebook if you want to be admitted to the country? We’re hearing over and over that everybody who’s not a citizen is afraid to say anything on social media because they don’t know how it might be held against them.”
Ambiguity over what DHS will collect and why has immediate free speech implications for immigrants and potential immigrants. And language about collecting “social media handles, aliases, [and] associated identifiable information” hints at a more expansive agenda than simply scoping out people’s public personas online. DHS seems to be asking people to list the pseudonyms and anonymizers they have used online, potentially exposing past speech they intended to disassociate from their real name.
“Yes, our rights at the border including for citizens are more limited than in other parts of life, but this is a gross invasion of your privacy and is far beyond the boundaries of a reasonable search,” says Nuala O’Connor, the president of the digital rights group Center for Democracy & Technology and a former chief privacy officer at DHS. “With these widespread fishing expeditions, who knows when or where that data about you will pop up again, particularly when you’re asked to divulge spaces online where you thought you might have been anonymous or pseudonymous.”
Casting such a wide net also inevitably impacts bystanders whom subjects interact with online, creating implications for freedom of association as well.
At this point it’s hard to know the bounds of these programs. Most of the new DHS language references “public” data, presumably meaning, for example, public tweets or Facebook posts. But it’s not clear what the requirements might be to grant DHS access to more private or limited posts, particularly as US Customs and Border Protection has ramped up demands at the border for access to individuals’ digital devices and passwords.
DHS emphasized that it is collecting public data in a statement to WIRED. “The amendment does not represent a new policy,” the agency says. “DHS, in its law-enforcement and immigration-process capacity, has and continues to monitor publicly available social media to protect the homeland. In an effort to be transparent, to comply with existing regulations, and due to updates in the electronic immigration system, DHS decided to update its corresponding Privacy Act system of records.”
Though the official language in the Federal Register is less clear, limiting the scope to public search results, posts, and social media entries would be a positive restriction. But it wouldn’t resolve general concerns about chilling free speech and incidentally involving any number of third parties, including native-born US citizens.
“People may censor themselves because they’re worried about coming up for a status upgrade—from being a student visa to being a worker visa or from a work visa to a lawful permanent resident or an LPR to a naturalized citizen,” says Adam Schwartz, a senior staff attorney at the Electronic Frontier Foundation. “DHS could open up their file and see that in 2017 they said ‘Donald Trump makes me so angry, sometimes I wish he wasn’t the president.’ So it’s a real disservice to freedom of expression on the internet and it’s an impoverishment of the national conversation when millions of people with a unique perspective are deterred from participating in social media discourse.”
The efficacy of mass social media monitoring is also still very much in question when it comes to large-scale domestic security and anti-terrorism. In one evaluation from February, which examined DHS use of social media to evaluate immigration applicants, the federal Office of the Inspector General raised serious concerns about how DHS measured the performance of such programs. “These pilots, on which DHS plans to base future department-wide use of social media screening, lack criteria for measuring performance to ensure they meet their objectives,” OIG wrote.
‘It’s a real disservice to freedom of expression on the internet and it’s an impoverishment of the national conversation when millions of people with a unique perspective are deterred from participating in social media discourse.’
Adam Schwartz, EFF
Other agencies like the FBI have conceded at various times that bulk communication collection is an unreliable method for identifying terrorism suspects. “It’s Homeland Security’s mission to protect national security and they will run up to the letter of the law to do that,” CDT’s O’Connor says. “Having worked there, I completely respect that, but there’s simply no evidence that monitoring and analyzing social media data is effective in general or for counter-terrorism.”
Observers emphasize that without describing specific social media criteria the agency examines, it can engage in open-ended, unrestricted bulk digital data collection and surveillance on millions of people.
“Tens of thousands of people a day get off planes—imagine that you’re trying to read through all of their Facebook histories in all different foreign languages,” The Identity Project’s Hasbrouck says. “Forget it. Most of this stuff will never be read by a human, can’t possibly be read by a human and will just become grist for the mill for robotic profiling. It will be more effective as a guilt-by-association and suspicion-generating machine.”
It is still unclear how the data will be used in practice, and the true impact of DHS’s social media scrutiny may not be fully understood until analysts can assess experiences and reports from current and prospective immigrants. But given the overreaching nature of the requests, and the unproven usefulness, it’s concerning enough that DHS is collecting that type of information in the first place.