FOIA Request Reveals USCIS Monitoring Social Networking Sites

Anyone who’s seen a TV police drama knows the drill: a minute before the credits roll and cut to a commercial, the good guys arrest the bad guys, and recite the now-familiar Miranda warnings about the right to remain silent, that anything you say may be used against you in a court of law. A memo recently released by the United States Citizenship and Immigration Services (USCIS) suggests that just such a warning may be in order for millions of unsuspecting users of Facebook and other social networking sites. USCIS released the May 2008 memo, entitled “Social Networking Sites and Their Importance to FNDS,” to the Electronic Frontier Foundation (EFF) as part of EFF‘s Freedom of Information Act (FOIA) lawsuit on government surveillance of social network sites. (See Applying for Citizenship? U.S. Citizenship and Immigration Wants to Be Your ‘Friend,’ by Jennifer Lynch, Electronic Frontier Foundation, 12.Oct.2010.)

Most people who use social networking sites have probably made their peace with sharing all kinds of personal information with the whole wide world – or the whole world wide web – but there still is something creepily Orwellian about this memo. It starts with some general observations about the nature of social networking sites, that these “are designed to allow people to share their creativity, pictures, and information with others.” Obvious, but so far, so good. It gets a bit spooky in its discussion of human motivation and how this can be used to the advantage of investigators:

“Sometimes people do this to find romance, sometimes they do it to find friends with similar interests, and sometimes they do it to keep in touch with family. Narcissistic tendencies in many people fuels a need to have a large group of ‘friends’ link to their pages and many of these people accept cyber-friends that they don’t even know. This provides an excellent vantage point for FNDS [USCIS Office of Fraud Detection and National Security] to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities. Generally, people on these sites speak honestly in their network because all of their friends and family are interacting with them via IM’s (Instant Messages), Blogs (Weblog journals), etc. This social networking gives FNDS an opportunity to reveal fraud by browsing these sites to see if petitioners and beneficiaries are in a valid relationship or are attempting to deceive [US]CIS about their relationship.  Once a user posts online, they create a public record and timeline of their activities. In essence, using MySpace and other like sites is akin to doing an unannounced cyber ‘site visit’ on a petitioners [sic] and beneficiaries.”

One problem with the memo, as EFF points out, is that a person’s online profile is not necessarily an accurate representation of his or her real life. A fraudster who was so inclined might post all kinds of material that might help his sham marriage to at least look real: love poems, montages of romantic walks on the beach, photos of the happy couple rowing on the lake in Central Park, and so on. (One could imagine a whole cottage industry of social network PR consultants, helping bi-national couples to “craft their message” to help “prove” the validity of their relationship – at least to their Facebook friends, and anyone else who may be monitoring their postings).

A more serious problem is that this memo essentially instructs USCIS agents to “friend” citizenship petitioners so they can monitor their social networking posts in the attempt to determine whether a marriage is fraudulent – entered into only for immigration benefits – or genuine.

EFF is careful to note that, in some cases, it may be appropriate for the government to use “all the tools at their disposal, including social networks, to ferret out fraud and other illegal conduct.”  But EFF nonetheless raises important concerns: is it ethical for government agents to infiltrate these social networks using false pretences and identities? Should casual, even trivial comments on a social networking site be enough to start an immigration investigation? That’s a discussion for another day, but this certainly should serve as a cautionary tale to anyone who is either a petitioning U.S. citizen or a non-citizen spouse who hopes to prove the validity of their marriage to the USCIS: be careful what you post on Facebook – or anywhere else on the web.  It may be used against you in a court of law, or it may be used against you without your ever even knowing it.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.