ESTA Proposed Social Media Collection

The U.S. Customs and Border Protection (CBP) is seeking to collect social media identifiers from visa waiver program (VWP) travelers. This proposal is part of ongoing security-related changes to the VWP. Individuals who use the VWP, or may wish to do so in the future, should be mindful of these potential changes.

Background

The VWP facilitates short-term travel to the United States for citizens of 38 designated countries. In December 2015, the U.S. enacted the Visa Waiver Improvement and Terrorist Travel Prevention Act of 2015. Based on this law, VWP travel is no longer an option for individuals who have traveled to specified countries since March 1, 2011. Additionally, VWP is not available to citizens of VWP countries who are also nationals of travel-restricted countries. This is explained in the MurthyDotCom NewsBrief, Visa Waiver Program Restrictions Incorporated in ESTA (28.Jun.2016).

Proposal: ESTA Social Media Question

In furtherance of the efforts to restrict VWP usage by terrorists, the CBP has proposed the addition of an inquiry about social media on the Electronic System for Travel Authorization (ESTA) form, which is submitted by qualifying foreign nationals to apply for permission to use the VWP. The proposed question states, “Please enter information associated with your online presence – Provider / Platform – Social Media Identifier.” Per the proposal, this “…will enhance the existing investigative process and provide [the U.S. Department of Homeland Security (DHS)] greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.”

Comments and Concerns

While the proposal lists the social media question as an optional data field, the suggestion of the collection of this information has raised a multitude of concerns. These concerns are voiced in many of the more than 700 comments, at the time of this writing, to the proposed regulation.

The vast majority of comments briefly state their opposition due to privacy concerns. Some of the more detailed comments augment the privacy concerns with additional objections. These comments criticize the vague nature of the question itself, as well as its inability to gain disclosure of private posts.

Conclusion

As evidenced in the MurthyDotCom NewsBrief, USCIS Reviewing Social Media Accounts of Applicants (02.May.2016), there is a growing trend towards the use of social media to review the backgrounds of foreign nationals who are either seeking admission to the United States, or who are already in this country and requesting additional immigration benefits. Regardless of whether this proposal is implemented, stakeholders should be mindful of their online activities and how posted information may be viewed by immigration officials and law enforcement.

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