Aug 22 2016

Wanna be Facebook friends with U.S. Customs & Border Protection?

Today we submitted formal comments to U.S. Customs and Border Protection objecting to its proposal to start asking visitors to the USA to list all their “social media identifiers”. USCBP (a division of the Department of Homeland Security) proposes to add this question to the I-94W form for international visitors arriving in the U.S., and to the online ESTA (Electronic System for Travel Authorization) application form for vistors form countries in the U.S. Visa Waiver Program:

Please enter information associated with your online presence—Provider/Platform—Social media identifier.” It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide 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.

We’ve previously argued that the entire ESTA scheme is an illegal de facto visa requirement that violates the rights of foreign visitors to the U.S. But this proposal would make it even worse.  Hundreds of individuals and more than two dozen organizations have already denounced this proposal. You can submit your own comments here until midnight tonight, Eastern time. If you agree with us that this is a terrible idea, feel free to endorse our comments or use them as a template:

We oppose this absurd and un-American questioning of foreign visitors to the U.S., and urge USCBP to withdraw this proposal.

Both freedom of speech and freedom of movement (“the right of the people… peaceably to assemble”) are recognized by the First Amendment to the U.S. Constitution. These rights are also recognized in Article 12 (freedom of movement) and Article 19 (freedom of expression) of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by, and binding on, the U.S. In addition, Article 17 of the ICCPR recognizes a right to protection against “arbitrary or unlawful interference with … privacy … or correspondence.”…

The essence of human rights law is that these rights are recognized as universal rights to which all people are entitled regardless of their citizenship or nationality (if any). This proposal … treats foreign visitors to the U.S. as lacking these human rights, and thus implicitly as less than human… This would reinforce the impression around the world that the U.S. does not believe in or respect human rights, but regards these universal human rights as “privileges” granted by the government and enjoyed only by U.S. citizens. We do not want to live under such a government or in such a world…

Given that providing social media identifiers would supposedly be “optional”, we are completely at a loss to understand what the government thinks this questioning will accomplish, other than discouraging foreign citizens from visiting the U.S.

Obviously, would-be visitors who have posted evidence on social media of illegal activity or of facts which would make them ineligible for admission to the U.S. would not voluntarily provide their social media identifiers as pointers to these incriminating admissions.

The only way to make any sense out of this proposal is to understand it as either (1) a “trial balloon” and step toward making the provision of social media identifiers mandatory, (2) an effort to trick visitors into thinking that they are required to answer the question, or (3) intended to form the basis in at least some cases for denial of admission or imposition of other adverse consequences on the basis of whether or not an individual “chooses” to respond.

None of these are acceptable uses or justifications for the proposed questioning….

USCBP says that social media identifiers will be “used for vetting purpses”. Although “vetting” is not defined in the notice or anywhere else in the law governing USCBP’s activities, we understand this to mean that the social media identifiers themselves, as well as information obtained by using them, will be added to the (secret) data set that serves as the input to the (secret) algorithmic rule set of the “black box” that decides whether to grant foreign citizens “permission” to travel to the U.S., and decides how to treat them when they arrive. Adding social media identifiers and information obtained through their use to this witches brew of pre-crime profiling and travel “permission” decision-making would only make a bad system worse, and compound the ongoing violations of travelers’ rights….

As U.S. citizens, we want our human rights – including our right to freedom of expression and our right to freedom of movement – to be respected by foreign governments when we travel. We do not want to be associated with the unjust, discriminatory, and legally incorrect position of the U.S. government, expressed in this proposal, that foreign citizens lack human rights. We do not wish to be the target of reciprocal denial of our human rights, including freedom of movement and freedom of speech, in other countries that we visit. We urge USCBP to set a good example to the world, not a bad example, by withdrawing this proposal.

7 thoughts on “Wanna be Facebook friends with U.S. Customs & Border Protection?

  1. I would think my concern is primarily the “slippery slope” argument and variations thereof.

    If they begin denying entry on the basis of refusing to list online identities… well, that would be a horse of a different color! I’d also be curious as to how this information is being used. I don’t see the issue with scanning public, online activity related to a user, but then the government shouldn’t need to ask for that information in order to tie it to a user. How very curious…

  2. An important point raised by the National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center is that “geotagging” of social media posts makes access to social media profiles equivalent to access to detailed movement logs:


    … [S]ocial media — through geotagged photos and videos — has the potential to disclose an enormous amount of geographical and locational information to CBP, including a detailed map of the places, locations, and people that an individual visited.

    Geotags are metadata that provide information regarding the physical location where a photo or video was taken, including latitude, longitude, altitude, distance, and name of a location. Most GPS-enabled smartphones and cameras automatically incorporate geotags into photos and videos, raising significant privacy and safety concerns. Disabling geotagging is often a cumbersome, unclear practice that most individuals do not engage in. Consequently, geotagged photos and videos from social media sites, such as ‘Twitter, YouTube, Flickr, and Craigslist’ can be ‘used to identify a person’s home and haunts.’ Thus, an individual that uploads a geotagged photo or video to a social media account disclosed to CBP risks sharing a tremendous amount of information that an individual may not have intended to share or disclose. This disclosure can include sensitive information, such as places where an individual worships, locations catering to individuals with certain sexual orientations, or visits to specialized medical facilities that would disclose private health issues. The fear of providing social media with links to photos with sensitive geo-tagged information is not speculative. Nearly half of young adults (18-29) who use the internet also use Instagram — a social media network that exclusively depends on the uploading and sharing of photos.”

  3. From a logistical viewpoint, the U.S. government has consistently failed to provide a method for information to be reviewed and corrected in their many databases. In the case of social media, accounts can be deleted and later reused by other individuals. A person’s accounts may have been created for their business. Social media accounts are now typically transferred along with the business when it is sold. A divorce may leave one spouse without access to formerly joint accounts.

    Under each of these and other scenarios, use of these accounts for “vetting purposes” may have negative consequences for the applicant. How would the applicant be able to access, view and update such information? How would the information be protected to insure the applicant and only the applicant can access, view and update the information. (The IRS continues to suffer from an inability to allow only tax payers to access their tax payer information through an on-line web portal.)

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