EFF to Department Homeland Security: No Social Media Surveillance of Immigrants

EFF submitted comments to the Department of Homeland Security (DHS) and its subcomponent U.S. Citizenship and Immigration Services (USCIS), urging them to abandon a proposal to collect social media identifiers on forms for immigration benefits. This collection would mark yet a further expansion of the government’s efforts to subject immigrants to social media surveillance, invading their privacy and chilling their free speech and associational rights for fear of being denied key immigration benefits.

Specifically, the proposed rule would require applicants to disclose their social media identifiers on nine immigration forms, including applications for permanent residency and naturalization, impacting more than 3.5 million people annually. USCIS’s purported reason for this collection is to assist with identity verification, as well as vetting and national security screening, to comply with Executive Order 14161. USCIS separately announced that it would look for “antisemitic activity” on social media as grounds for denying immigration benefits, which appears to be related to the proposed rule, although not expressly included it.

Additionally, a day after the proposed rule was published, Axios reported that the State Department, the Department of Justice, and DHS confirmed a joint collaboration called “Catch and Revoke,” using AI tools to review student visa holders’ social media accounts for speech related to “pro-Hamas” sentiment or “antisemitic activity.”

If the proposed rule sounds familiar, it’s because this is not the first time the government has proposed the collection of social media identifiers to monitor noncitizens. In 2019, for example, the State Department implemented a policy requiring visa and visa waiver applicants to the United States to disclose the identifiers they used on some 20 social media platforms over the last five years—affecting over 14.7 million people annually. EFF joined a large contingent of civil and human rights organizations in objecting to that collection. That policy is now the subject of ongoing litigation in Doc Society v. Blinken, a case brought by two documentary film organizations, who argue that the rule affects the expressive and associational rights of their members by impeding their ability to collaborate and engage with filmmakers around the world. EFF filed two amicus briefs in that case.

What distinguishes this proposed rule from the State Department’s existing program is that most, if not all, of the noncitizens who would be affected currently legally reside in the United States, allowing them to benefit from constitutional protections.

In our comments, we explained that surveillance of even public-facing social media can implicate privacy interests by aggregating a wealth of information about both an applicant for immigration benefits, and also people in their networks, including U.S. citizens. This is because of the quantity and quality of information available on social media, and because of its inherent interconnected nature.

We also argued that the proposed rule appears to allow for the collection and consideration of First Amendment-protected speech, including core political speech, and anonymous and pseudonymous speech. This inevitably leads to a chilling effect because immigration benefits applicants will have to choose between potentially forgoing key benefits or self-censoring to avoid government scrutiny. That is, to help ensure that a naturalized citizenship application is not rejected, for example, an applicant may avoid speaking out on social media about American foreign policy or expressing views about other political topics that may be considered controversial by the federal government—even when other Americans are free to do so.

We urge DHS and USCIS to abandon this dangerous proposal.