On May 28, Twitter and Reddit, joined by Internet Association, filed a friend-of-the-court brief in support of a lawsuit challenging year-old rules that require nearly all who apply for U.S. visas to register their social media handles with the U.S. government. The social media companies emphasized the burdens this registration requirement imposes on people who use pseudonymous social media handles to speak anonymously on their platforms. The Electronic Frontier Foundation (EFF) and Muslim Advocates also filed briefs in support of the lawsuit, detailing how much private information can be revealed through review of even public-facing social media activity, and how the registration requirement disproportionately affects members of religious minorities, respectively. Collectively, the briefs underscore the civil liberties implications of an intrusive surveillance program that applies to millions of people each year.
Since May 31, 2019, the State Department has required the nearly 15 million people who apply for U.S. visas each year to register every social media handle they’ve used over the past five years on any of 20 platforms—including Twitter and Reddit. The State Department and Department of Homeland Security retain applicants’ social media information indefinitely and can share it with other federal agencies, with state and local governments, and, in some contexts, even with foreign governments. The Knight Institute, Brennan Center for Justice, and Simpson Thacher & Bartlett filed a lawsuit challenging the registration requirement and related policies in December 2019 on behalf of Doc Society and the International Documentary Association, two U.S.-based documentary film organizations that seek to bring filmmakers and other partners together across borders. As Plaintiffs have argued, the registration requirement and related policies chill the free speech of foreign filmmakers and millions of other prospective visitors and immigrants to the United States, depriving us of their valuable voices.
In their brief, Twitter, Reddit, and Internet Association address the registration requirement’s burden on anonymous online speech in particular, noting the importance of anonymous speech to public discourse from our nation’s founding to the modern era. “[G]iven the vast number and types of communications” allowed on social media platforms, “the ability to remain anonymous on those platforms is critically important,” they write. “Some employ anonymous Twitter accounts to convey disfavored political views or other information that could expose them to social stigma or loss of employment,” and others “use anonymity to protect their privacy when discussing sensitive personal issues” like grief and depression. By compelling visa applicants to surrender their online anonymity in order to enter or remain in the United States, and by subjecting their online activities “to potentially indefinite scrutiny once they are in the country,” the registration requirement and related policies “chill a vast quantity of speech and associational activity” in violation of the First Amendment.
EFF marshals its expertise in digital privacy, as well as recent Supreme Court precedent, in explaining that even public-facing social media communications can reveal significant amounts of private information about people and their online contacts. As Justice Sotomayor has noted, a person’s public movements—tracked over time—can reveal “familial, political, professional, religious, and sexual associations,” in which that person maintains a reasonable expectation of privacy. Likewise, a person does not give up her expectation of privacy or obscurity just because she has posted publicly on social media. Yet the registration requirement enables the government to “glean from social media profiles personal information that it may not otherwise have access to via the visa application,” EFF writes. Visa applicants’ knowledge that the government is collecting their social media communications chills their exercise of First Amendment freedoms online. And this chilling effect extends beyond those who are applying for U.S. visas. By the very networked nature of platforms like Twitter and Reddit, the surveillance of one person’s social media account implies the surveillance of that person’s online associates, who may “tag” each other or “like” or “comment” on each other’s social media posts.
Finally, writing on behalf of a number of faith-based organizations, Muslim Advocates argues that the registration requirement and related policies disproportionately burden religious minorities. Many recent immigrants are members of religious minorities from around the world, making up an estimated 25 percent of recent long-term permanent residents. These recent immigrants rely on social media to communicate with their families and religious communities abroad. The registration requirement chills these communications, as visa applicants fear exposure of their online identities to their home governments as well as religious discrimination by the U.S. government. In particular, “overseas spiritual leaders are now faced with the difficult choice of either choosing not to post anything on social media that could cause problems with the U.S. government or choosing not to travel” to the United States to minister to and educate members of their faith in person. Moreover, the possibility that the U.S. government will share visa applicants’ social media information with foreign governments may force many dissidents combatting religious oppression abroad off of social media platforms entirely.
Together, the briefs underscore the broad civil liberties implications of this sweeping program of social media surveillance. As we wrote in our complaint, this surveillance is neither effective nor necessary, and it exceeds the government’s authority under the Immigration and Nationality Act. It also violates the First Amendment.
Leena Charlton was a 2019-2020 Legal Fellow at the Knight First Amendment Institute.
Jacob Apkon is a student at New York University School of Law.