In an effort to continue “extreme vetting” of foreign nationals, the Department of Homeland Security (DHS) released a notice modifying the Privacy Act system of records in the Federal Registrar.1 The notice details the federal government’s plans to expand its airport security measures to include the collection of social media data from all foreign nationals entering the United States. As the new policy is implemented, foreign nationals traveling to the United States will begin to experience the delays and excessive scrutiny.
The Federal Register notice proposes expanding the categories of information that DHS can collect from foreign nationals to include “social media handles, aliases, associated identifiable information and search results.”2 The proposal also includes “publicly available information from the internet, public records, public institutions, interviewees, commercial data providers, and information obtained and disclosed pursuant to information sharing agreements.”3 This notice is the latest in what appears to be heightened levels of investigations under the Trump administration. In May, the Administration approved a new questionnaire for visa applicants that asks for social media handles for the last five years and biographical information going back 15 years.
Although Trump has reassured the country that these vetting procedures will advance our national security interests, the President has failed to mention how this new policy will perform better than the intense and invasive procedures already in place. For example, when a foreign national wishes to enter the United States as a refugee, he or she is subjected to a comprehensive multi-layered process. The process begins with the foreign national applying for refugee status and resettlement with the U.N. High Commission on Refugees, which collects the applicant’s initial documents and biographic information. The U.N. Commission then transfers the application to a State Department-funded Resettlement Support Center and the Center reviews the applicant’s information. Afterwards, the Center conducts an in-depth interview with the applicant, enters the information into a State Department system, and then verifies the information needed for a background check to other U.S. agencies. From there, the National Counterterrorism Center, FBI, DHS, Defense Department and State Department all screen the applicant using databases from their respective centers. The screening process includes checks for security threats such as connections to bad actors and any past criminal or immigration violations. DHS then conducts in-person interviews in the applicant’s home country or country of temporary residence and collects his or her biometric data. Applicants must also complete a class about American culture and undergo medical screening once approved by DHS. Further, before the refugee is admitted into the U.S., Customs and Border Protection and the Transportation Security Administration conduct additional screening. In total, this process can take up to two years.4
With the already intense level of scrutiny that foreign nationals face, one has to wonder what Trump hopes to accomplish with this new, overly invasive system. In mid-November, corporate and political opponents sent two letters to DHS, one on the technical futility of trying to implement “extreme vetting” software and another on the disturbing social fallout of any such attempt. The first letter, signed by computer and engineering experts from institutions such as Google and Microsoft, explains that the proposed system would be “inaccurate and biased.”5 As the letter states, “No computational methods can provide reliable or objective assessments of the traits that ICE seeks to measure.” The second letter, signed by members of 56 civil rights and privacy organizations, emphasizes the free speech concerns that are sure to accompany this system. People will likely begin to censor themselves online due to the fear of the government twisting their words and creating meaning behind seemingly innocent social media posts.6
It is unlikely that these two letters will dissuade the president from creating this discriminatory system. Foreign nationals across the country will have their social media accounts checked and DHS will soon be sharing the data, as noted in the Federal Registrar, across multiple federal agencies including Immigration and Customs Enforcement, Customs and Border Patrol and the Transportation Security Administration. It is our hope that more experts emerge to fight this program and that DHS recognizes the harm they will surely cause to U.S. business and humanitarian interests.
By Michael Wildes
Michael J. Wildes, is the Managing Partner of Wildes and Weinberg, P.C. Mr. Wildes is a former Federal Prosecutor with the United States Attorney’s Office in Brooklyn (1989-1993). Mr. Wildes has testified on Capitol Hill in connection with anti-terrorism legislation. He is an Adjunct Professor at the Benjamin N. Cardozo School of Law in New York and teaches Business Immigration Law. From 2004 through 2010, Mr. Wildes was also the Mayor of Englewood, New Jersey–where he resides. Wildes and Weinberg, P.C. has offices in New York, New Jersey and Florida and Los Angeles by appointment only. If you would like to contact Michael Wildes please email him at [email protected] and visit the firm’s website at www.wildeslaw.com.
4 https://www.nytimes.com/interactive/2017/01/29/us/refugee-vetting-process.html
5 https://www.documentcloud.org/documents/4243211-Technology-Experts-Letter-to-DHS-Opposing-the.html
6 https://www.documentcloud.org/documents/4243212-Coalition-Letter-to-DHS-Opposing-the-Extreme.html
By Michael Wildes
