'Extreme Vetting' and Social Media Inquiries

By Dan Cadman on April 3, 2018

The Department of State's Bureau of Consular Affairs (DOS CA) has finally made good on its commitment to start delving into the murky online world of social media applications as a part of the vetting process for individuals seeking visas to come to the United States.

The required notice was published in the Federal Register (FR) last week and within a heartbeat the media and self-appointed guardians of the nation's well-being were all over it. For instance, a Reuters journalist just couldn't help pointing out that the FR notice indicated a scope of action that appeared to be broader than DOS officials had initially suggested:

Previously, under rules instituted last May, consular officials were instructed to collect social media identifiers only when they determined "that such information is required to confirm identity or conduct more rigorous national security vetting," a State Department official said at the time.

The State Department said then that the tighter vetting would apply only to those "who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities."

Perhaps in the fullness of time the folks at CA realized that there wasn't any way to know who warranted "additional scrutiny in connection with terrorism or other national security-related visa ineligibilities" without delving into their social media profiles and statements. That certainly seems to have been the case with some of the more horrific and notable acts of terrorism to hit our shores in recent years, such as the woman who entered on a fiancée visa and went on with her later-husband to kill so many people in San Bernardino, Calif., in 2015 (see here, here, and here).

It seems to me that not checking everyone out would be by far the greater sin, one approaching the level of misfeasance, given past history — and I believe this to be true even knowing that some people will alter or delete messages and profiles in light of this new vetting check. After all, how stupid are you if you fail to learn from history? We have an entire new global regimen at airports that was derived solely from the events of September 11, 2001, because we were determined not to let the lessons of that day go unheard. It is often inconvenient, but is there anyone out there who doesn't think it has saved many lives all over the world in the past decade-and-a-half?

But then, this is part of the "gotcha either way" mentality of many journalists these days, because you can bet sure as the sun will rise that if another terrorist managed to come to our shores and wreak death and havoc, and it was revealed afterward that he (or she) had exhibited extremist views online, the press, certainly including Reuters, would be merciless.

Then, of course, there is the hysterical reaction from the American Civil Liberties Union. Hina Shamsi, director of the ACLU's National Security Project, said in a press release:

This attempt to collect a massive amount of information on the social media activity of millions of visa applicants is yet another ineffective and deeply problematic Trump administration plan. It will infringe on the rights of immigrants and U.S. citizens by chilling freedom of speech and association, particularly because people will now have to wonder if what they say online will be misconstrued or misunderstood by a government official. We're also concerned about how the Trump administration defines the vague and overbroad term "terrorist activities" because it is inherently political and can be used to discriminate against immigrants who have done nothing wrong. There is a real risk that social media vetting will unfairly target immigrants and travelers from Muslim-majority countries for discriminatory visa denials, without doing anything to protect national security.

It's actually quite a clever statement, because Shamsi is smart enough to tie the data collection to people in the United States, because if the ACLU attempted to attack the policy solely on the basis of aliens living abroad, they would fail, because such people are clearly outside the scope of constitutional protections such as "freedom of speech and association".

And, needless to say, there is the near-obligatory reference to "discriminatory denials" that will "unfairly target immigrants and travelers from Muslim-majority countries", even though on its face the policy applies to everyone and could just as easily result in detection of a Sikh separatist from India who advocates violence, or a member of one of Colombia's rebel splinter groups who have refused to go along with the negotiations between the government and FARC (Armed Revolutionary Forces of Colombia). But if the policy results in future detection of radical Islamists, so be it. If the policy was in effect previously, as it ought to have been in a rational world (after all, even human resources divisions of companies routinely vet applicants via their online profiles), it would have saved American lives.

As to Shamsi's point about political speech: Yes, most terrorists see the world through political, or politico-religious lenses. Terrorist acts are, at their heart, political. But there is a bright line divide between acceptable and unacceptable; terrorists clearly cross the line. But even stopping short of that, when people go online to express their hatred of the West, and Western ways of living— or, more specifically, American cultural values and mores — is it unfair to conclude that they are almost certainly incapable of assimilation into the body politic (there's that inescapable word again), and ask why we would wish to grant them permission to enter or reside here? Again, given past history, doesn't that represent an unnecessary clear and present danger to our communities?

Two last, somewhat less obvious, points:

First, soliciting the information requires being able to access it. For instance, the San Bernardino terrorist had established security settings that precluded all but a few select individuals from reading her most aggressive, anti-western posts. I'm not sure how CA proposes to cure that problem —perhaps by insisting on a short-time, purpose-specific grant of access to designated individuals for review purposes — but something will need to bridge the gap or else this is a useless exercise.

Second, the solicitation of information must of necessity result in compliance and enforcement if it's to be taken seriously. It may be a bit of a quagmire, because of legal concepts such as "relevance" and "materiality", but up the road U.S. immigration officials are going to be obliged to consider charging aliens with being removable (or even for having committed the criminal offense of visa fraud) for having concealed their social histories in response to the question. Hopefully, this won't happen after another deadly attack, because by then it will have been too late.