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.

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 cjr.org from 9am Eastern on Tuesday.

Other notable stories:

• For the magazine, Bob Moser writes that in 2020, “the most malicious and effective disinformation will be homegrown—planted and artificially amplified by for-profit troll farms, freelance cyberwarriors swapping notes in chat rooms, political parties and PACs, and campaigns up and down the ballot.” Michael Rosenwald looks at the history of US information warfare targeting other countries’ politics. And Colin Dickey reports on the rise and fall of facts. “The history of fact-checking,” he writes, “suggests that too often, the accumulation of verifiable minutiae can become an end unto itself.”
• Yesterday, Speaker Nancy Pelosi announced that the House of Representatives will begin drafting articles of impeachment against Trump; a vote to charge the president could take place before Christmas. Later, James Rosen, of Sinclair, shouted at Pelosi as she was leaving a news conference, “Do you hate the president, Madam Speaker?” Pelosi returned to the podium. “As a Catholic, I resent you using the word ‘hate’ in a sentence that addresses me,” she said. “I don’t hate anyone.” Kevin McCarthy, the House minority leader, also had a tense exchange with a reporter yesterday. Andrew Feinberg, of Breakfast Media, asked McCarthy about his past remark that Trump is “paid by Vladimir Putin”; McCarthy said it was a joke and called the question “embarrassing.”
• In other impeachment news, Rudy Giuliani, the president’s personal lawyer, is working on a documentary series for One America News Network, an aggressively pro-Trump outlet. This week, Giuliani showed up in (you guessed it) Ukraine, to interview figures who have helped him spread false rumors about Joe Biden and his son. Per BuzzFeed’s Christopher Miller, Ukraine wasn’t happy to see him. President Volodymyr Zelensky, who is prepping for peace talks with Russia, learned of Giuliani’s visit from the press.
• A new trade deal between the US, Mexico, and Canada could be finalized before Christmas, though time is tight. The Wall Street Journal reports that Pelosi wants to strip the deal of a provision, demanded by tech companies, that would absolve platforms of liability for users’ posts across North America, and not just in the US. Pelosi has previously suggested that these protections—known as Section 230—should be scrapped altogether. (Jared Schroeder wrote for CJR that that might not be a bad idea.)
• For the Times Magazine, Josh Owens bares all about his past work for Infowars and its erratic boss, Alex Jones. “You had to determine where he was emotionally and match his tone quickly,” Owens writes. “If he was angry, then you had better get angry.” Owens depicts Jones drinking vodka while driving, accidentally firing an AR-15 in his direction, and repeatedly shooting a bison in gruesome footage that Owens was asked to edit.
• Karen McDougal—the former Playboy model whose claims of an affair with Trump were caught and killed by the National Enquirer in 2016—is suing Fox News. McDougal says Tucker Carlson defamed her when he accused her, last year, of trying to extort Trump; Fox said it would “vigorously defend” Carlson. (ICYMI, Simon van Zuylen-Wood reported on what’s going on at the Enquirer, including the McDougal episode, for the magazine.)
• Ojo Público, an investigative journalism site in Peru, developed an algorithm to identify possible patterns of corruption in public contracts; it flagged 40 percent of contracts between 2015 and 2018 as being possibly nefarious. Paola Nalvarte, of the Knight Center for Journalism in the Americas at the University of Texas, has more details.
• Four months after India’s government cut off Kashmir, the internet is still down. BuzzFeed’s Pranav Dixit reports that Kashmiris have disappeared en masse from WhatsApp, apparently due to the app’s policy of kicking out users who have been inactive for 120 days. (In August, Rozina Ali explored “the Kashmiri narrative” for CJR.)
• And the Pulitzer Prizes are adding an “Audio Recording” category to next year’s awards.

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