State Department Must Abandon Discriminatory Visa Policy

Yesterday, the Brennan Center and the Electronic Privacy Information Center (EPIC), along with 55 other civil society organizations, submitted comments to the U.S. Department of State raising a host of fundamental objections to a proposed State Department policy that would undermine rights guaranteed by the First Amendment and result in discrimination on the basis of national origin, religion, and ideology.

On March 30, 2018, the U.S. State Department published two 60-day notices regarding a policy to collect additional information, notably social media identifiers, from nearly all visa applicants except certain diplomats – about 15 million people. This expands upon a 2017 policy requiring similar information from a subset of about 70,000 people who had been determined to warrant additional scrutiny. Proposals by the federal government to use social media to make adverse visa determinations have been consistently opposed by privacy, civil liberties, civil rights, and other civil society groups, including the Brennan Center and EPIC.

Our letter to the State Department makes four principal objections:

• The Proposed Collection Excessively Burdens Visa Applicants for Speculative National Security Benefits: Communications on social media are difficult, if not impossible, to interpret accurately, even more so in the context of unfamiliar cultures and languages, and applicants and their American contacts may proactively censor themselves;

• The Proposed Collection Will Primarily Burden Applicants on the Basis of National Origin, Religion, or Ideology: The history of the vetting procedures suggests an intent to make national origin and religious-based distinctions among applicants, with a focus on Muslims. Indeed, documents supporting the collection justify it in part based on mandates from Executive Order 13780, second in a sequence of “Muslim ban” executive orders that tie national origin to a terror threat, and which were enjoined by federal courts for reflecting religious animus;

• Information Collection May Facilitate Bulk Data Mining and Algorithmic Analysis Efforts that Amplify Privacy and Discrimination Concerns: The notices do not say in concrete enough terms how the State Department will use, store, or share the data it obtains. Exploiting this data for bulk mining or algorithmic analysis – for which there may be conduits –  would further amplify many of the privacy and discrimination-oriented concerns, especially given that about 15 million people yearly will have to disclose their data to enter or obtain residency in the United States;

• There is No Evidence that Foreigners Pose a Significant Threat to the U.S.: Empirical evidence shows that the risk of an attack on U.S. soil perpetrated by a foreign person who has been improperly vetted is infinitesimal. Indeed, the U.S. has one of the world’s most thorough visa vetting systems, built to identify national security threats; over the past ten years, Americans have been more than ten times as likely to drown in a bathtub or die in a lightning strike than to die in a terrorist attack perpetrated by a foreign-born terrorist on U.S. soil.

Policies should be based on proof. And while no proof has been offered that this proposal will enhance national security, its drawbacks and risks are evident. The Brennan Center, EPIC, and our allies urge the State Department to abandon this effort and others like it.