Documentary groups challenge Trump’s social media vetting in court

In 2015, the Obama administration assembled an immigration task force to assess the effectiveness, as a national security measure, of screening visa applicants’ social media accounts. In February 2017, shortly after Donald Trump took office, the Department of Homeland Security’s inspector general declared that there was no evidence the policy worked. Yet a month later, Trump directed his immigration agencies to implement the “extreme vetting” of visa applicants that he had promised on the campaign trail. Following the president’s order, the State Department proposed an aggressive expansion of the social media vetting policy. It took effect in May of this year. Previously, only about 65,000 visa applicants per year—those who had spent time in areas controlled by terrorist groups, for example—were asked to provide information about their social accounts. Now 14.7 million people per year—almost everyone who applies for a visa—must submit any handle they’ve used in the past five years.

Yesterday, Doc Society and the International Documentary Association, two nonprofit documentary film organizations, challenged the vetting policy in federal court. The Knight First Amendment Institute at Columbia University and the Brennan Center for Justice at New York University are representing them. The lawsuit argues that social media vetting has already had a chilling effect on the groups’ foreign collaborators. In particular, filmmakers and activists from countries with limited freedom of expression are censoring themselves on social media and declining to apply for US visas they otherwise would have sought—fearing that their applications may be declined and that details of pseudonymous accounts might be shared with their home governments.

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The suit challenges social media vetting on two grounds. The first argues that the State Department lacks the authority to impose such requirements. The second claims that they are unconstitutional because they “deter expressive and associational activity and are not sufficiently tailored to any legitimate government interest.” Foreigners living abroad typically lack constitutional rights, but the lawsuit notes that the vetting policy applies to individuals who already have close ties to the US—family members, educational experience, existing jobs. Plus, the documentary groups say, the policy violates their rights of speech and association. They rely on social media to communicate with associates overseas.

The suit offers several examples of people already affected by social media vetting, including those who rely on pseudonymous accounts to conduct research. “We regularly work with filmmakers for whom the ability to maintain anonymity online can be a matter of life and death,” Jess Search, Doc Society’s chief executive, said in a press release. “We believe the registration requirement is a deeply troubling and oppressive development, forcing filmmakers to choose between free online expression and their own security.” Twitter also made a statement in support of the lawsuit, saying that social media vetting “has a chilling effect.”

This isn’t the first time reporters have been caught in the Trump administration’s immigration dragnet. Last year, CJR’s Amanda Darrach reported that the approval process for journalists seeking US visas has gotten tougher—they have faced absurdly fine-grain questions about their work and open hostility at consulates, including, in at least one case, ridicule for not having a Pulitzer or Nobel prize. This year, journalists working at the border between the US and Mexico said immigration officials harassed them using tactics that included detention, the confiscation of their reporting materials, and the flagging of their passports. In March, an NBC affiliate in San Diego obtained evidence that the US government maintained a secret database to monitor journalists, most of whom were US citizens, at work reporting on migrants in Mexico. These practices are also now subject to a lawsuit, filed last month by five journalists and the American Civil Liberties Union.

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The impact of such policies will outlast the Trump administration: the vetting lawsuit, for instance, notes that the government will be able to keep the social media details it collects in perpetuity. Jameel Jaffer, executive director of the Knight Institute, argued yesterday that asking people for their handles is “the linchpin of a far-reaching and unconstitutional surveillance regime.”

Below, more on immigration, social media, and free expression:

  • The bigger picture: The risks of repressive governments getting their hands on the secret accounts of dissidents are obvious. In yesterday’s newsletter, CJR’s Mathew Ingram recapped a report from Article 19, a UK-based human rights charity; it found that freedom of expression globally has reached a ten-year low, in part due to “digital authoritarianism.”
  • Facial recognition: Recently, the Department of Homeland Security proposed making facial-recognition scans mandatory for everyone entering and leaving the US, including US citizens. Yesterday, following criticism from groups including the ACLU, DHS did a U-turn, meaning citizens will continue to be able to opt out of facial recognition.
  • Another social media lawsuit: Last year, I reported on another Knight Institute lawsuit; this one sought to forbid Trump from blocking other users on Twitter, which Knight claimed violated those users’ First Amendment rights. A district court sided with Knight; in July, a federal appeals court affirmed its ruling. The administration is appealing again.

Some news from the home front:
On Tuesday, December 10, CJR and the Tow Center for Digital Journalism are hosting a daylong conference at Columbia Journalism School to launch our new issue of the magazine, on disinformation, and to explore the challenges the press will face heading into 2020. Speakers will include Whitney Phillips, Masha Gessen, Emily Bell, Hayes Brown, and Jelani Cobb; for the keynote, Kyle Pope, our editor and publisher, will speak with Carole Cadwalladr, who helped break open the Cambridge Analytica scandal. Details on how to attend are here. The event will also be livestreamed via from 9am Eastern on Tuesday.

Other notable stories:

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Jon Allsop is a freelance journalist. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.