The list of questions asked of applicantas for U.S. visas goes on for page after page, including:
- Do you belong to a clan or tribe?
- Are you or have you ever been a drug abuser or addict?
- Are you coming to the United States to engage in prostitution or unlawful commercialized vice?
- Do you seek to engage in espionage, sabotage, export control violations or any other illegal activity in the United States?
- Are you a member of a terrorist organization?
- Have you ever participated in genocide?
- Have you ever been directly involved in the coercive transplantation of human organs or bodily tissue?
- Have you ever committed torture?
- Have you ever engaged in the recruitment or the use of child soldiers?
- Are you coming to the U.S. to practice polygamy?
- Are you a member of the Communist party?
Some of these questions are pointless. How many people have been denied admission to the U.S. because they volunteered that they were terrorists, torturers, or genocidists?
Others of these questions are vague, irrelevant, and/or intrusive.
Unfortunately, the list of questions asked of would-be travelers to the U.S. has grown ever longer, under both Democratic and Republican administrations.
In 2016, questions about social media identifiers were added to the online application for the Electronic System for Travel Authorization (ESTA), a sort of short-form electronic visa used by tourists and some short-stay business visitors from most-favored countries.
Today the Identity Project and five other national civil liberties and human rights organizations — Government Information Watch, Cyber Privacy Project (CPP), American-Arab Anti-Discrimination Committee (ADC), Restore the Fourth, Inc., and National Immigration Law Center (NILC) — filed comments with the Department of State objecting to this questioning as unconstitutional and contrary to international human rights treaties and Federal laws.
Our objections to questions about social media identifiers on visa forms are similar to the objections we filed, together with numerous other organizations, to this sort of questioning on the ESTA application.
With respect to the additional questions on the visa forms, we had this to say in our latest submission to the State Department:
Many of the items on this form would never be relevant to, much less dispositive of, any lawfully defined criterion of admissibility. For example, an individual cannot lawfully be discriminated against by the Department of State in adjudicating their application for admission to the U.S. on the basis of membership in, or identification or association with, a “clan” or “tribe”. “Tribe” and “clan” are not defined on the form and are not mentioned or defined in any Federal statute or regulation, except in relation to Native American tribes. But the context and the inclusion of “clan” along with “tribe” suggests that “tribe” is not being used in that sense on these forms. Depending on the community and the context, these words refer to ethnicity, race, religion, and/or national origin. Some people regard all humanity as one “tribe”.
A statute or regulation making clan or tribe a criterion for government decision-making would be void for vagueness. But it would also, by almost any definition of “clan” or “tribe”, be unconstitutionally discriminatory on its face….
The notice is silent as to how information regarding clan or tribe or social media associations will be used. But any use of this associational data as the basis for decision-making would be an impermissible exercise in discrimination and/or guilt by association: placing people under suspicion and further surveillance, making adverse determinations with respect to applications for visas or admission to the U.S., blacklisting (euphemistically called “watchlisting”), or assignment of other sanctions or adverse consequences solely on the basis of familial, friendship, business, social media, clan, or tribal “associations” with other blacklisted or disfavored individuals or groups, including racial or ethnic groups….
If an individual identifies (or is identified by others) as Jewish, are they required to state that they are a member of a clan or tribe? What if they are descended from a member or members of an Irish or Scottish clan? What percentage of “blood” is considered determinative of membership in an ancestry-based tribe or clan? And how can the Department of State possibly think that it is permissible for a U.S. government agency to make decisions on the basis of such distinctions of race, ethnicity, creed, or national origin?
The State Department could abandon, withdraw, or modify its proposed visa application forms. But thousands of people filed objections to the social media questions on the ESTA forms, and the State Department put them into use anyway. The revised forms currently have only temporary “emergency” approval. If the State Department doesn’t back down, the next step will be for the State Department to submit the revised forms to the Office of Management for approval for continued long-term use.