Internet & Social Media Law Blog
At the end of 2016, the U.S. Customs Border Protection (CBP) implemented a rule to include questions concerning social media accounts of travelers to the United States during the Visa Waiver Program screening process (VWP). The VWP permits citizens of 38 countries to visit the United States for up to 90 days without having to obtain a visa. ESTA is the automated system that determines the eligibility of travelers entering through the VWP. Now, in addition to collecting biographical information from a traveler, CBP will request social media identifiers of travelers during the ESTA application process for vetting purposes.
According to CBP, collection of social media data will enhance existing investigative processes and provide Department of Homeland Security (DHS) greater clarity and visibility to possible terrorist activity and connections by providing an additional tool set which analysts and investigators may use. Terrorist organizations are increasingly using social media platforms for purposes of recruitment and communication—the Orlando nightclub shooter made a Facebook post in support of ISIS before the mass shooting and one of the attackers in the Paris attacks posted a 12-minute video to Facebook claiming he was responding to a call from a senior ISIS leader to follow the group’s attacks in Europe and the United States.
Critics of the new rule claim this collection of social media information is ineffective and an invasion of privacy. The American Civil Liberties Union commented that the inquiry goes far beyond customary visa-waiver application questions (such as criminal background, health status and duration of stay) and gives the government a gateway into an enormous amount of online expression and associations, which can reflect highly sensitive information about one’s personal opinions and beliefs. They also argue that as a practical matter it would be prohibitively expensive for DHS to analyze all the social media accounts of travelers coming in through VWP. Additionally, details of coordinated terrorist attacks would very likely be done through private messages, which are not visible to public accounts. Under the rule, CBP will collect social media identifiers, not passwords to accounts.
There are also concerns that the information gathered will disproportionately impact Arab and Muslim communities and that cultural and linguistic barriers increase the risk that social media activity may be misinterpreted or used to improperly deny a visa waiver application. Further concerns include the risk that this discrimination could also negatively impact those travelers’ friends, colleagues and family members who are in their social networks and will fall under the scrutiny and surveillance of U.S. intelligence agencies.
For now, travelers are not required to provide their social media identifiers; the question on the ESTA application is marked as optional. However, it is possible that many travelers may not realize the question is optional as the process to enter the United States can be confusing and intimidating and most travelers are likely to fill a form out completely rather than risk additional questions from law enforcement. Whether the request for social media information will stay optional is yet to be seen; however, with President Trump’s campaign promises for “extreme vetting” of foreign visitors entering the United States, it is likely that we will see further measures implemented allowing the government to use social media data in its security and intelligence efforts.