The New DHS Rule on Social Media Tracking for All Immigrants, Including U.S. Citizens

Last month, the U.S. Department of Homeland Security (“DHS”) proposed a new rule to track the internet activity for all visa applicants, visa holders, legal permanent residents, and naturalized U.S. Citizens. The new rule would track and store social media account information and other highly sensitive data as part of individuals’ immigration files.

The new policy will allow DHS to collect and track individual’s social media accounts handles – including Twitter, Instagram, and Facebook – along with aliases, associated identifiable information, and search results. DHS search result will include not just public search engines, such as Google or Bing, but also commercial databases.

Where Will DHS Get This Information?

Under the proposed rule, DHS would include “information obtained from the internet, public records, public institutions, interviewees, commercial data providers, and information obtained and disclosed pursuant to information sharing agreements.”  It’s unclear if this includes Twitter direct messages or private Facebook messages.  Also, it’s unclear who DHS would share this information with, though it is possible that it could include other federal agencies, state/local law enforcement, or even foreign governments or private companies.

DHS’s information sharing probably includes commercial data providers such as credit reporting agencies – like Transunion, Equifax and Experian – and “people search” vendors like Intelius and Axicom. As countless identity theft victims have learned, these largely-unaccountable vendors can be highly inaccurate and unreliable. Few Americans learn about the inaccuracies in their records, and ever fewer are able to correct these mistakes. It’s unlikely that DHS will give individuals the opportunity to challenge or correct inaccurate information collected from the commercial data providers, even if those errors stand in the way of an immigration benefit or even admission to the U.S.

Who Will the New Rule Apply to?

The proposed rule would not only extend to visa applicants, visa holders and LPRs, but it would even apply to naturalized U.S. citizens. Only those U.S. citizens born in a U.S. territory or to one or more U.S. parent would be exempt.  By surveilling U.S. citizens for nothing more than the fact that they were born outside this country, DHS is violating the fundamental guarantee that all citizens will be granted equal protection of the law.  At the same time, social media monitoring of immigrant Americans’ will indirectly impact the privacy of all of us.  Such surveillance will inevitably reveal the targets’ private interactions with friends, colleagues, and loved-ones, regardless of their immigration status.

Why Does This Matter?

DHS’s proposed rule will chill the free speech and religious liberty rights of millions of immigrants. While it is quite clear that the rule would collect information on millions of law-abiding immigrants, including U.S. citizens and permanent residents, it’s unclear how DHS will use and protect that information.  Countless individuals use social media to exercise their constitutional right to engage in political discussions. This rule threatens to muzzle that discourse, as countless Americans silence themselves rather risk retaliation from DHS.

What Can I Do?

We are calling on each and every CAIR supporter to tell DHS that you oppose this misguided and unconstitutional rule.  Please submit a comment by October 18, 2017, using one the following methods:

Suggested Text:

I write to oppose the U.S Department of Homeland Security’s (“DHS’s”) Notice of Modified Privacy Act System of Record, published as docket number DHS-2017-0038 (the “Rule”).  The Rule is flagrantly unconstitutional, violating the First and Fifth Amendments to the U.S. Constitution.  The Rule would violate both the free speech and free association rights afforded to all Americans, including visa-holders and lawful permanent residents.  A system that records immigrant Americans’ social media accounts is repugnant, violating the right of immigrant Americans to communicate and associate with others. 

DHS’s attempt to treat naturalized U.S. citizens as less-American than native-born citizens is appalling, it violates our constitution’s bedrock guarantee that we will never have two tiers of citizenship.  The Rule is based on bigotry and is justified without any evidence of a national security benefit.  This misguided and discriminatory effort overreaches its stated purpose and chills free speech and the free exercise of religion.  As such, DHS must refuse to implement the Rule or any other measures that would have such an unlawful impact on immigrant Americans.