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by Seokmin Oh | Spring 2018

With rising technological innovation and the universal nature of the Internet, our society has ultimately created a separate communication medium that is much more powerful beyond than our imagination. In particular, social media allows us to connect with people from all over the world, and with it come revolutionary changes that many rarely think about. First, posts or messages that we send are more or less permanent. Informal verbal conversations are rarely ever recorded and past forms of long distance such as mails were discarded. However, with the infinitely many messages that we send and post are rarely discarded to the same extent, and pressing the convenient delete button may not be sufficient. In fact, it may be necessary to take the arduous route of checking our backup files or in iCloud to ensure that messages are actually gone (Peterson). In fact, even the photos that we post on social media can lurk across the Internet and remain searchable to the general public, even after being deleted (BBC). Secondly, social media has become so accessible to the point where we can connect with essentially anyone. It is no secret that we can follow a variety of different pages on Facebook, follow celebrities or friends, or even join groups and events that we may have never heard about before. In many ways, social media has become an integral part of our daily lives and our reliance on social media is bound to increase.

In conjunction with this technological growth, there has been an increase in scrutiny and of and hostility towards immigrants. News about undocumented immigration, one of the most politicized issues of our time, constantly flashes across the nation. Furthermore, Post 9-11, Americans have become even more wary of falling victims to terrorist attacks (Chang). This is especially concerning because the number one reason as to why Americans are wary of immigrants is that immigrants were viewed as security threats (Yglesias). In fact, Donald Trump, who is now the president, intensively emphasizes the need to securitize the border and putting “America First” – a call for xenophobia that strikes fear in many immigrants (Blake). In essence, Trump’s rhetoric and policies are pushing already marginalized groups to the fringe, inciting fear and uncertainty in these communities.

Strict scrutiny of immigrants has now invaded the virtual realm - specifically on social media. Granted, evaluating social media and electronic devices that immigrants carry is not a new concept. Even during the Obama administration, the “the [Department of Homeland Security] had begun asking visitors to voluntarily provide social media information, and had four pilot screening programs,” and there was nothing stopping the border patrols from checking immigrant’s electronic devices (Nixon, Lee). However, with the rise of the Trump administration, the immigration vetting process has only intensified. Trump is planning to require all individuals to disclose their social media handle and even keep a file of social media and search results details of immigrants. In fact, while it is unclear whether this policy will take place simply during the application process or during some period afterwards, it will affect green card holders and naturalized citizens as well. Due to its sweeping nature, some non-naturalized American citizens who communicate with immigrants may be affected as well (Nixon). 

Given the intersectionality of technology, immigrants, and the rising conflict between privacy and security, the validity of such harsh policies must best questioned. In an effort to examine the legitimacy of social media surveillance of immigrants, two vantage points will be used – legalism and consequentialism. Investigating the historically relegated position of immigrants and applying the third-party doctrine, this paper first argues that the actions taken by the government are legal. However, when taking into consideration the ineffectiveness of such policies and the negative impacts on our society, this paper argues that while the policy may be legal, it is nonetheless a poor policy that produces more harms than good. 

When it comes to privacy and freedom from unjust searches, much of our protections can be traced to the Fourth Amendment, and more specifically to the ruling Katz vs United States. In this particular ruling, a two-pronged test was developed to describe what a reasonable search is: One, “a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” (Katz vs United States). In other words, different governmental agencies must require a warrant as long as (1) the individual believed that they should have had privacy in a specific situation and (2) society is ready to deem that situation as requiring privacy. 

However, applying this standard to immigrants – specifically those who are entering the country or going through the visa process – becomes tricky. While there is certainly merit in the fact that immigrants expected themselves to have some sort of privacy, society as a whole do not necessarily agree. Specifically, in the process of allowing immigrants into the country, the de facto assumption is that any non-Americans are suspicious individuals who ought to be checked. In short, since the laws are based on United States having the ability to control its borders and having a national sovereignty, there is an implicit endorsement of checking thoroughly those who enter the country. Given that immigrants give up extensive amount of information already through forms such as I-130, it is hard to imagine that this specific additional piece of information is going to be deemed illegal (Rappaport). Even travelers have been subject to strict surveillance, and with heightened fear regarding terrorists, it is hard to imagine that society as a whole will not be interested in vetting these individuals’ social media. Moreover, it is likely that most travelers will simply be intimidated by the law enforcement at airports or at the border, functionally, the travelers will more or less end up giving up their social media handle. 

On the other hand, there is another legal concept – the third-party doctrine - that makes it difficult to argue that immigrant’s social media ought not to be checked. In essence, the doctrine is based on the idea that when an information is disclosed to a “third party,” then that information does not benefit from the protection of the Fourth Amendment. This concept was based on the ruling United States vs Miller, where government searching a suspect’s bank account without a warrant was deemed legal. In fact, they wrote that “The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” (Villasenor). Unfortunately, even if we assume and hope that information revealed to third party members will be confidential, there is no guarantee – it is always under the risk of being searched by the government.

Orin Kerr, a acclaimed law professor, further explains this doctrine more in depth and adds additional nuance of  “public information.” Suppose that we want to deliver a mail package to another neighbor. In a traditional sense, the police can, if they so desired, monitor our movements outside of our respective houses. The content of the mail will be kept safe, but the police can know our location and how we traveled from our house to the house that we delivered our mail to. This is the case because there is no Fourth Amendment protection to such public activity. In the same way that police can monitor our movements if we traveled, if we substituted ourselves with a mail delivery service, the police can still monitor the mail delivery services’ movements, who is acting as a third party in this instance (Kerr). 

Agglomerating this information gives us two separate legal implications regarding government surveillance of social media of immigrants. First, insofar as there is actually a distinction between public information and private information online, we can assume that government monitoring our public information is fair game. For instance, what we post, share, and write on Facebook wall can be made public. Complete strangers can view that information unless we take steps to taken to change it. It is, however, important to note that this specific doctrine is not limited to simply just immigrants but also to United States citizens in general. Just like what we say and do in parks or in any public area is subject to scrutiny by the government, the same logic applies to social media. The information that we disclose publicly – without any barriers – is free to view by anyone. Secondly, given that social media can be seen as a third party that transports our information from one individual to another (just like a mail delivery service would), it is also reasonable to argue that government agencies can access certain, limited information without a warrant. To be specific, Kerr asserts that “collection of non-content information in a network but not the contents of communications” is constitutional. He furthers that things such as the subjects of an email or Facebook messages should be searchable by the government without a warrant, whereas the actual contents of the messages should be kept hidden (Kerr). 

This is particularly relevant and is in accordance with the precedent set by Smith vs Maryland. In this specific case, it was ruled that it was constitutional for the police to install “pen registers” without a warrant after Smith was under the suspicion of being a harasser, which allowed the police to have a record of who Smith called (Villasenor). This is consistent with the third-party doctrine and more specifically the idea that the government can gain non-content information but not content information – an idea that Kerr asserts. Overall, the ACLU notes that this notion of third-party doctrine is the way we currently handle privacy issues rising with technology (ACLU). While there may be disagreements – and certainly understandable ones - with respect to the third-party doctrine and the way we enforce certain legal code on immigrants, this is unfortunately the law in the status quo. In other words, even though we may argue that the ethics behind our legal code is morally corrupt, it still does not take away the fact that policy actions taken by the government are legal. In short, legality is not synonymous with morality. 

While this article has argued that the actions taken are legal, the policy should still not be enacted as it creates more harms than benefits. In particular, this policy can ultimately lead to people silencing their voices. In fact, Faiz Shakir notes that “This would undoubtedly have a chilling effect on the free speech that’s expressed every day on social media.” (McManus). This phenomenon can occur for two reasons. One, it is possible that individuals may want to cater to the political party in power. For instance, people may fear that criticizing presidents like Donald Trump can jeopardize their position as a visa applicant, and as a result, err on the side of silence. Secondly, and more importantly, speech online can be highly misinterpreted. People purport outrageous statements all the time and to discern the truth behind their statements can be challenging, if not impossible. In fact, “"People use emojis, they use short form. Sometimes it's difficult to know what something means"(Schwartz). In many ways, speech can be taken out of context, and as a result, blur the intent of the writer. Thus, immigrants may choose not to speak in fear of how words can be misinterpreted. 

Furthermore, the effectiveness of actually increasing security via social media surveillance is unproven. For one, it is hard to figure out what the immigrants are actually trying to say online given the difficulty of discerning among sarcasm, exaggeration, and emojis (Schwartz, Danielyan). On top of that, Patel and Koushik from the Brennan Center for Justice argues that “Extreme or radical views are often assumed to lie at the heart of terrorism. But evidence shows that the overwhelming majority of people who hold radical beliefs do not engage in, nor support, violence.” (Patel and Koushik). In other words, because radicalized ideology is actually not correlated real violence, social media vetting can prove to be ineffective especially because social media vetting tends to simply show radical ideology and present it as a form of terrorism. More importantly, there really is no profile for a terrorist nor a single path in which a terrorist is created. Thus, it makes it almost impossible to use social media to figure out who will be a terrorist (Patel and Koushik). As a result, when analyzing empirics and data, research has shown the ineffectiveness of such social media vetting programs. For example, in 2015 of December, a bipartisan effort led to the launch of limited pilot programs to use social media as part of the visa application process for Syrian refugees (McManus). However, none of the programs were effective. In fact, “The Office of the Inspector General later criticized those programs as ineffective and nonscalable. None of the programs were found to have produced actionable intelligence on national security” (McManus). 

This is alarming given that this unsuccessful social media check comes with detrimental costs. One of the problems is that the visa process can be lengthened. Mastroianni reports that “Individual investigations would slow down the visa process, potentially hurting business and tourism. And the tech industry has pushed back against past efforts to enlist it in reporting users' content to the government, citing privacy concerns” (Mastroianni). In other words, to manually check individual cases can ultimately lead to unnecessarily long time spent on screening potential tourists and employees who want to work as soon as possible, which can hurt the economy. In addition, to review an immigrant’s social media accounts would require the formation of another department, which is additional tax payer money that must be spent. Given that this is not only harmful but also an ineffective method of ensuring safety, these economic costs are hard to ignore.

Overall, social media surveillance of immigrants is legal. The level at which it becomes “reasonable” to search immigrants is a lot lower due to social perceptions, which makes it easier to legally justify social media check. Moreover, under the third-party doctrine and the public nature of certain information on social media, limited social media check is constitutionally allowed. However, it is important to recognize that legality does not equal a morally upright, nor a societally beneficial policy. Such social media surveillance is bound to restrict expression as immigrants may become fearful of criticizing the government in power. In addition, because sarcasm and exaggeration is hard to interpret online, immigrants may fear having their words taken out of context and used against them. Moreover, the policy itself has proven to be ineffective. Not only is it difficult to interpret expressions online, there is no single profile that perfectly describes what a terrorist is actually like. As a result, empirically speaking, social media vetting has continuously been a failure in increasing. On top of that, adding social media surveillance would entail longer visa processing time and additional department created, which has economic costs. In short, the government ought to reconsider its social media surveillance on immigrants as it is not only ineffective but harmful to everyone.

REFERENCES

[1] ACLU Staff. “The Right to Keep Personal Data Private: Carpenter v. U.S.” ACLU, 15 Sep 2017, https://www.aclu.org/blog/privacy-technology/location-tracking/right-keep-personal-data-private-carpenter-v-us.

[2] Blake, Aaron. “Trump’s full inauguration speech transcript, annotated.” Washington Post, 20 Jan 2017, https://www.washingtonpost.com/news/the-fix/wp/2017/01/20/donald-trumps-full-inauguration-speech-transcript-annotated/?utm_term=.0bddb09d7aff

[3] Chang, Alvin. “American’s sustained fear from 9/11 has turned into something more dangerous.” Vox, 11 Sep. 2017, https://www.vox.com/2016/9/9/12852226/fear-witches-terrorists

[4] Danielyan, Aleksander. “EFF Urges DHS to Abandon Social Media Surveillance and Automated ‘Extreme Vetting’ of Immigrants.” Electronic Frontier Foundation, 16 Nov 2017, https://www.eff.org/deeplinks/2017/11/eff-urges-dhs-abandon-social-media-surveillance-and-automated-extreme-vetting.

[5] Katz v. United States. US Supreme Court Opinions, Supreme Court of the US, 1967, 389 US. FindLaw, http://caselaw.findlaw.com/us-supreme-court/389/347.html#f3.

[6] Kerr, Orin. “The Case for Third Party Doctrine.” Patriots Debate: Contemporary Issues in National Security Law. Edited by Harvey Rishikof, Stewart Abercrombie Baker, and Bernard Horowitz. American Bar Association, 2012, https://www.americanbar.org/groups/public_services/law_national_security/patriot_debates2/the_book_online/ch4/ch4_ess2.html.

[7] Koushik, Meghan and Patel, Faiza. “Countering Violent Extremism.” Brennan Center for Justice (2017): 9-10. Web. 8 Dec. 2017. https://www.brennancenter.org/sites/default/files/publications/Brennan%20Center%20CVE%20Report_0.pdf.

[8] Lee, Patrick. “Can Customs and Border Officials Search Your Phone? These Are Your Rights.” Propublica, 13 Mar 2017, https://www.propublica.org/article/can-customs-border-protection-search-phone-legal-rights

[9] Mastroianni, Brian. “Could Policing Social Media Help Prevent Terrorist Attacks?”CBS News. 15 Dec. 2015. https://www.cbsnews.com/news/could-policing-social-media-prevent-terrorist-attacks/

[10] McManus, Spencer. “DHS to Keep Records on Immigrants’ Social Media Activity.” Georgetown Law Technology Review., October 2017, https://www.georgetownlawtechreview.org/dhs-to-keep-records-on-immigrants-social-media-activity/GLTR-10-2017/.

[11] Nixon, Ron. “U.S. to Collect Social Media Data on All Immigrants Entering Country.” The New York Times, 28 Sep 2017, https://www.nytimes.com/2017/09/28/us/politics/immigrants-social-media-trump.html

[12] Peterson, Jake, et al. “How to Permanently Delete Text Messages on Your iPhone.” WonderHowTo, Gadget Hacks, 11 May 2017, ios.gadgethacks.com/how-to/permanently-delete-text-messages-your-iphone-0147344/.

[13] Rappaport, Nolan. “Homeland Security searching some social media doesn’t violate privacy.” The Hill, 2 Oct 2017, http://thehill.com/opinion/immigration/353479-homeland-securitys-social-media-searches-dont-actually-violate-privacy.

[14] Schwartz, Drew. “Homeland Security Plans to Collect Social Media Info from US Immigrants.” Vice, 26 Sep 2017, https://www.vice.com/en_us/article/mb73ma/homeland-security-plans-to-collect-social-media-info-from-us-immigrants-vgtrn.

[15] Villasenor, John. “What You Need to Know about the Third-Party Doctrine.” The Atlantic, 30 Dec 2013, https://www.theatlantic.com/technology/archive/2013/12/what-you-need-to-know-about-the-third-party-doctrine/282721/.

[16] “Websites 'keeping deleted photos'.” BBC News, 21 May 2009, news.bbc.co.uk/2/hi/8060407.stm.

[17] Yglesias, Matthew. “New poll: Voter worries about immigration mostly aren’t about the economy.” Vox, 6 Jul 2016, https://www.vox.com/2016/7/6/12098622/immigration-worries-economy-security