DHS Sued Over First Amendment-Trampling Social Media Vetting Program

Legal Issues

from the chilling-effect-IS-the-point dept

The DHS continues with its social media vetting program targeting foreign visitors despite questions about its Constitutionality and its effectiveness. Once a government agency decides to do something, it’s difficult to talk it out of it, even if it appears to be throwing money down an unconstitutional hole.

That’s not to say a government agency can’t be deterred from doing something awful. It’s just that deterrence seems to be more effective prior to deployment than after a program is already in place.

Speaking out against social media vetting hasn’t really gotten us anywhere, so it’s time to start suing. The Knight First Amendment Institute and the Brennan Center for Justice are suing the DHS on behalf of two US-based documentary film organizations, the International Documentary Association and the Doc Society. (via Just Security)

It’s not just the privacy side of the Fourth Amendment that’s affected by the DHS’s social media deep dives and demands for account passwords. It’s also the First Amendment. There’s a definite chilling effect being felt now that the DHS can demand access to accounts during the visa application process or at the border when incoming foreign visitors arrive. From the lawsuit [PDF]:

Plaintiffs Doc Society and the International Documentary Association (“IDA”) bring this challenge because the Registration Requirement and related retention and dissemination policies violate their rights as well as the rights of their members and partners inside and outside the United States. Doc Society and IDA are U.S.-based documentary film organizations that regularly collaborate with non-U.S. filmmakers and other partners, including by inviting them to screen and discuss their work in the United States. For example, Doc Society hosts “Good Pitch” events throughout the year to facilitate filmmaking partnerships and launch social justice impact campaigns while raising funds to support these efforts. Similarly, IDA’s “Getting Real” conference brings hundreds of filmmakers from around the world together in Los Angeles to share their skills and their stories with each other.

The sort of things documentary filmmakers explore are the sorts of things US government agents might decide are “suspicious” when vetting social media accounts. On top of being mistaken for criminals or terrorists because they document criminal and terrorist activity, these organizations risk exposing confidential sources. And those confidential sources may risk blowing their own cover by acquiescing to demands for account info and passwords.

Many of Plaintiffs’ members and partners use social media to show their work; draw attention to human rights abuses; connect with other filmmakers, artists, and advocates; and engage with the same social and political issues that they address in their films. The Registration Requirement has a significant chilling effect on their use of social media, especially for political speech. Plaintiffs’ members and partners who anticipate applying for U.S. visas must consider the risk that a U.S. official will misinterpret their speech on social media, impute others’ speech to them, or subject them to additional scrutiny or delayed processing because of the views they or their contacts have expressed. Those who use pseudonymous identifiers must take into account that they will have to relinquish their online anonymity to U.S. officials when they submit their visa applications, and they must also consider the risk that U.S. officials will disclose their social media identifiers to foreign governments, reveal the identifiers inadvertently, or fail to protect the identifiers from third parties who might access them unlawfully. In recent months, authoritarian and other rights-abusing regimes, including some U.S. allies, have used information gleaned from social media to identify, locate, and detain human rights advocates, journalists, and political dissidents—and even, in some instances, to have them killed.

The chilling effect isn’t theoretical. The lawsuit provides several examples of IDA or Doc Society members who have drastically altered their online activities in response to the DHS’s social media vetting policy.

[O]ne IDA member currently residing in the U.S. Midwest reviewed three years of social media activity and deleted posts criticizing the current U.S. administration in order to avoid any delays on future visa applications.

[…]

A Doc Society partner who has shot two films and attended multiple film festivals in the United States applied for an I visa one week after the Registration Requirement took effect in the hope of continuing his work in the United States. Because of the Registration Requirement, he has all but stopped expressing his views and interacting with others on social media, though he previously used social media to promote his projects and to share his political views.

[…]

Because of the Registration Requirement, one IDA member has decided not to accept future work in the United States despite significant past work experience as a journalist here.

The lawsuit also points out the DHS’s attempt to moderate immigration via social media vetting is bound to generate false positives and overlook genuine dangers. Vetting software strips posts of context and nuance. Translation software introduces errors. What’s harmless in context may look harmful to the person vetting social media posts, due to language or cultural barriers. Emojis and other non-verbal cues may be misinterpreted. Content the government doesn’t like might be shared, not because the person approves of what’s happening, but because the person wants to inform others about criminal/terrorist activities. Combining automated processes with a non-adversarial process is the worst possible solution, but it’s the one we’re stuck with thanks to the endless ratcheting up of security efforts and the lack of manpower and/or interest to do the job properly.

The lawsuit asks for the court to find the vetting process unconstitutional and to block the DHS from enforcing it. It’s a long shot but you can’t get anything if you don’t ask. If anything, it will hopefully result in some modifications of the program — ones that allow those affected to challenge determinations made the DHS and that limit (or forbid) the sharing of information held by the DHS (for up to 100 years!) with other agencies. Just about anything would be an improvement over the program currently in place, which infringes on rights while not really doing much to make the nation more secure.

Filed Under: chilling effects, dhs, social media, social media vetting
Companies: doc society, international documentary association