DHS Continuing to Expand Social Media Scrutiny of Foreign Travelers

The U.S. Department of Homeland Security (DHS) is continuing to expand its scrutiny of the social media presence of foreign travelers and foreign nationals applying for U.S. immigration benefits. DHS Secretary John Kelly has stated that the Trump Administration’s “extreme vetting” policies may include asking foreign visitors to divulge their use of social media and other websites. The DHS already requests voluntary disclosure of this information from some visitors to the United States, and the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) routinely use publicly available social media information during adjudications and fraud investigations. Travelers should be aware that information posted online may be reviewed and scrutinized by immigration officials in adjudicating requests for immigration benefits, including admission to the United States.

CBP Requests Social Media Information from Some Visitors

The U.S. Customs and Border Control (CBP) already requests social media information from some foreign visitors. Under a new policy implemented in December 2016, visitors from visa waiver program (VWP) countries are asked about social media use, including platforms and usernames, in an optional question on the Electronic System for Travel Authorization (ESTA) form. On February 21, 2017, the DHS proposed to include a similar question on the Electronic Visa Update System (EVUS) form. EVUS requires certain visa holders to update their biographical information and is currently limited to Chinese nationals who have unrestricted, full-validity B-1/B-2 visas. These two recent programs are illustrative of the trend toward increased collection of data regarding foreign nationals’ social media use.

“Extreme Vetting” and Social Media Not Fully Explained

The Trump Administration has yet to provide any concrete details regarding the “extreme vetting” proposed by the President for foreign visitors to the United States. In comments to Congress and the media, however, Secretary Kelly has stated that the Administration is considering proposals that include asking foreign visitors for social media usernames and passwords to facilitate examination of those accounts. According to Secretary Kelly, those who refuse could be denied entry into the country.

The CBP can search electronic devices like laptops or cell phones of any visitor to the U.S. While the parameters of “extreme vetting” have yet to be finalized, it seems likely that it could include enhanced screening of foreign nationals’ electronic devices and online activities.

Social Media Already Scrutinized

Scrutiny of foreign nationals’ social media use in the immigration context is, of course, not entirely new. As reported in the MurthyDotCom NewsBrief, USCIS Memo on Use of Social Networking Websites (29.Oct.2010), the USCIS has monitored social media as part of fraud investigations for many years.

More recently, as discussed in the MurthyDotCom NewsBrief, USCIS Reviewing Social Media Accounts of Applicants (02.May.2016), the USCIS started testing the use of social media in routine adjudications and it is developing policies and procedures to govern the practice.

The U.S. Department of State (DOS) and consular officers also regularly examine visa applicants’ social media accounts for information relevant to their respective visa applications. These current practices limit government scrutiny to information that is publicly available depending on the user’s privacy settings. As noted above, however, new policies could be more invasive.

Conclusion

Increasing government review of foreign nationals’ social media and online activities is a trend that is likely to continue, and perhaps accelerate, under the Trump Administration. People should be mindful of their online activities and how posted information may be viewed by immigration officials and law enforcement.

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