Now that President Biden has decided not to run for a second term, he must choose which issues to tackle during his six months left in office. When he made the once-politically-unthinkable decision to step aside, he said he did so for the good of the nation. By freeing himself from the political constraints of a campaign, President Biden now has the opportunity to make other difficult decisions for the good of the nation, including ones that would fortify democracy and safeguard civil rights and civil liberties.
One place to start: our bloated surveillance state, which still features remnants of the “extreme vetting” program that former President Trump instituted in connection with his so-called “Muslim ban.”
That program includes the State Department’s dragnet social media disclosure requirement, which mandates that nearly 15 million immigrant and non-immigrant visa applicants a year disclose their social media handles to the government — including pseudonymous handles that applicants use to protect their identities online.
Intelligence officials have privately acknowledged that the requirement adds “no value” to visa screening and vetting, yet it remains in place. It’s time for the Biden administration to do the right thing and rescind the requirement.
Social media surveillance chills speech and association and infringes upon the privacy of visa applicants and everyone who interacts with them online. Visa applicants change how and with whom they engage, concerned that their political or social views would affect their likelihood of getting a visa. The disclosure requirement is especially dangerous for activists who post online about controversial topics, like political corruption or human rights, under a pseudonym to avoid retribution from their government or communities.
Given the risks that come with disclosing their online identities to anyone — let alone the U.S. government, which has information-sharing agreements with countries around the world — some would-be travelers have chosen not to come to the U.S. at all. One can hardly blame them. Activists and others from a number of countries — including Saudi Arabia, Iran, Russia, Cameroon and elsewhere — have been arrested or even sentenced to death for their social media posts.
When visa applicants feel compelled to self-censor or to forgo travel to the United States, we all suffer. Families are deprived of visits from relatives, artists lose out on opportunities to collaborate and activists have greater difficulty organizing and sharing lessons learned. The disclosure requirement has deprived Americans of opportunities to connect personally, professionally and academically with all those who have been chilled.
Perhaps some would trade these burdens on free speech and association for greater security at the border — but the disclosure requirement does not give us that. Because of the difficulties of interpreting social media posts across languages, cultures and contexts, social media vetting is inaccurate and ineffective. The risk of misinterpreting humor or sarcasm is high, not to mention likes, hearts or emoji reactions to other users’ posts.
The government may also improperly impute the views of online “friends” to the visa applicant. In 2019, for example, Customs and Border Protection reportedly denied entry to an incoming Harvard freshman from Lebanon not because of anything he had posted, but because of what his friends had.
In fact, there is no evidence at all that this massive surveillance program is effective or necessary. In response to concerns raised about the disclosure requirement, President Biden ordered agencies to review the use of social media handles in visa screening and vetting, asking whether it had “meaningfully improved” these processes.
During this review, intelligence officials exchanged emails admitting that social media handles had “very little impact on improving the screening accuracy of relevant systems.” When questioned about those emails last October, a senior administration official “agreed that collecting social media data had yet to help identify terrorists among visa applicants,” but argued that the administration needed “to take more time to figure out how best to use it.”
It’s time for President Biden to finish the job he started with the agency review. It is always easier to adopt a new surveillance program than to shut down an old one. Politicians know all too well that there are few political costs to taking actions in the name of national security, and often serious political costs to reversing those actions. But President Biden has freed himself from these constraints.
Even when used with benign intentions, the State Department’s disclosure requirement causes serious damage to the freedoms of speech and association at home and abroad without improving the government’s visa screening and vetting capabilities. He should use the power of his unique position to end that program now.
Anna Diakun is a staff attorney at the Knight First Amendment Institute at Columbia University.