Doc Society v. Blinken

Case Background

On December 5, 2019, the Brennan Center, along with the Knight First Amendment Institute at Columbia University and Simpson Thacher & Bartlett LLP, filed a lawsuit on behalf of two U.S. based organizations that collaborate with filmmakers around the world, Doc Society and the International Documentary Association (IDA), challenging the State Department’s dragnet requirement that nearly all applicants for U.S. visas register on their application forms the social media identifiers they have used over the past five years on a list of twenty platforms, including those like Facebook, Instagram, YouTube and Twitter. This registration requirement, which took effect in May 2019 and affects about 15 million people a year, reflected a major expansion of the government’s probing into the social media activity of travelers and immigrants to the U.S. The lawsuit also challenges the Department of Homeland Security’s (DHS) subsequent retention and dissemination of those identifiers.

The registration requirement and related retention policies lead people to self-censor. Partners and members of the organizations we represent use pseudonymous handles to speak online about sensitive or important topics to protect themselves from retaliation, but they must now register them with the U.S. government, which claims the authority to disseminate them abroad. Even people who do not choose to remain anonymous reasonably fear that government officials will misinterpret or misattribute posts made in online environments where people interact differently than they do in real life. DHS policies that contemplate the retention of applicants’ social media data for 100 years after their birth – and permit using it for broadly defined purposes – only magnify these chilling effects. As a result of these burdens on speech, Doc Society and IDA are forced to expend additional resources to maintain relationships with non-U.S. filmmakers, to learn about their work and issues confronting their communities, and to encourage them to travel to the United States to participate in their programs and engage with their U.S. audiences.

Dragnet social media surveillance harms free expression, but there’s no evidence that it helps protect national security or enforce the immigration laws. In 2017, the DHS Inspector General concluded that the social media screening pilot programs it reviewed failed to measure effectiveness and could not justify scaling the practice. Other internal DHS reviews pointed out that officials found it difficult to make use of social media data to identify national security threats. These findings are consistent with what expert and civil society organizations have pointed out in opposing proposals to expand social media screening.

For these reasons, the lawsuit alleges that the State Department’s registration requirement and related retention and dissemination policies violate the First Amendment because they deprive visa applicants of the rights to anonymous speech and private association, and because they chill constitutionally protected speech and association, while being poorly tailored to the government’s stated interests. The registration requirement also violates the Administrative Procedure Act (APA) because it exceeds the State Department’s authority under the Immigration and Nationality Act (INA) and is arbitrary and capricious.

On August 11, 2023, the U.S. District Court for the District of Columbia granted the government’s motion to dismiss the case with prejudice. Emphasizing its deference to the executive branch on issues related to immigration enforcement, foreign policy, and national security, the court concluded that it could not evaluate the APA claim without intruding on policy decisions entrusted to another branch of government. More specifically, the court held that it could not second guess the executive branch’s policy decision regarding what type of information is necessary to aid the enforcement of immigration and nationality laws.

The court also rejected Doc Society and IDA’s claims that the registration requirement and related retention and dissemination policies violate the First Amendment. While the court found that the challenged policies run the risk of chilling constitutionally protected speech and association, the court again gave significant deference to the government on issues related to immigration enforcement and national security. The court found that the government’s proffered interests of confirming visa applicants’ identities and determining applicants’ visa eligibility were legitimate government interests, and it concluded that the challenged policies – even if unwise or ineffective – were rationally related to legitimate government interests.

On October 10, 2023, we filed a notice of appeal of the court’s ruling, and on January 31, 2024, we filed an appeal with the U.S. Court of Appeals for the District of Columbia. The appeal argues that the district court erred in ruling that the registration requirement is immune from judicial review under the APA. Specifically, the court’s ruling (1) conflicts with the text of the INA; (2) neglects court precedent, which bars judicial review only in exceptional circumstances like military policy not present here; and (3) ignores that courts can review whether the government engaged in reasoned rulemaking without intruding into discretionary decisions about individual visa applications. Moreover, the appeal argues that the district court incorrectly applied a deferential standard of review, rather than exacting scrutiny, to the plaintiffs’ First Amendment claims. Lastly, the appeal maintains that under a correct interpretation of the applicable law, the registration requirement is arbitrary and capricious under the APA and violates the First Amendment.

Case Documents (No. 23–5232 D.C. Cir.)