Visa Waiver Program applicant? Social media information please.

A new policy proposed by Customs and Border Control has civil liberty advocates raising their eyebrows.

Thinking of visiting the United States through the Visa Waiver Program (VWP)?  Applicants to the program may be asked to provide their social media account and usernames as part of the application process.  The United States Customs and Border Protection has proposed an addition to the screening process for foreign travelers entering and leaving the United States.  The new proposed addition is to start obtaining social media accounts of travelers under the particular program.  Although providing such information would be optional, the proposal is raising a couple of eyebrows about the actual effect and reasoning behind it.

The Visa Waiver Program allows citizens from 38 different countries to travel to the United States for up to 90 days without a visa.  The VWP is administered by the Department of Homeland Security (DHS) and is used for business stays and tourism.  The 38 countries from which the United States accepts foreign travelers in return, must accept United States citizens as travelers.

Being able to visit the United States is a lot easier under the VWP than it is to obtain a formal visa.  Under the program, visitors still have to provide personal information to DHS and meet certain requirements, such as having a valid passport, no criminal record, and eligible for a United States visa, to name a few.  “The motion comes after officials worldwide have called for stronger social media surveillance in an age of global terrorism,” Jason Silverstein commented from the NY Daily News.

The VWP went under a great deal of scrutiny after the horrific terror attacks that took place on November 2015 in Paris.  Belgium—one of the countries that participates in the program—had one of the Islamic State operatives involved in the attacks pass through under the VWP.   NY Daily News reports that the terrorists responsible planned the attacks through encrypted chats.

Critics of the “optional” request to list social media accounts believe that this will soon turn into a mandatory request for social media information later down the road.

The proposal would add the optional question to traveling forms (Form I-94W), asking to “Please enter information associated with your online presence—Provider/Platform—Social media identifier.”  DHS believes that requesting social media information will be helpful for vetting purposes as well as being used as contact information for the applicant.  The question would appear on the arrival and departure papers at the borders to be filled out by non-citizens and on VWP forms.  Critics of the “optional” request to list social media accounts, believe that this will soon turn into a mandatory request for social media information later down the road.

John Cohen, who was a former counterterrorism coordinator for Homeland Security, said in an interview with NPR, “We have learned an awful lot about individuals who represent a threat to this county.  And one of the behaviors that we have seen through this analysis is that these people tend to be extensive social media users.”

For the past couple of years immigration authorities have been trying to expand the use of social media and how it can be used to vet people before traveling and possibly providing them with information prior to offering applicants any immigration benefits.

Cohen states that even though the proposed part of the application would be voluntary, if an individual refuses to provide their social media information, their application will receive additional scrutiny.

The vast usage of social media outlets used by people worldwide aids in the argument for allowing such a question on the VWP application.  People use social media for different purposes; nowadays, you can learn more about a person just from simply looking at their Facebook profile.  Cohen comments, “And because social media usage is a huge part of our day-to-day lives now, it just makes total sense that it would be one of the data sets that we would look at as we are vetting people.”

If someone posts a status on Facebook expressing his or her dislike for certain United States policies, Cohen assures that this alone will not deny someone access into the United States through the VWP.

One of the main issues with the new proposal is trying to fit it in with privacy and civil liberties of individuals who apply for the program.  Cohen mentions in his interview with NPR that, before the department of Homeland Security can even consider the decision to expand a vetting process, they must make sure that all security objectives are being met and that the privacy and civil liberties of individuals traveling into the United States are still protected.  In order to make that work, the department will have to work closely with privacy and civil liberties officials to make sure they are all on one accord.

Secondly, since the proposal expands on how much data is examined, this also means that the resources used to examine such data would also need to be increased.  This is clearly not something that can happen overnight and would require more funding.  The next question is; will it actually work?

Social media is a platform in which individuals express their opinions and exercise their right to free speech.  If someone posts a status on Facebook expressing his or her dislike for certain United States policies, Cohen assures that this alone will not deny someone access into the United States through the VWP.  If passed, the proposal will use such information gathered from social media—along with other information and factors gathered through the application—before a final decision is made.

Cohen strongly believes that this is a necessary step towards ensuring that individuals who are inspired by extremist ideologies and plan to commit violence because of such beliefs will be stopped.

There are a few critics who are against DHS’s request to provide such information.  One critique is that providing social media information is not compulsory, it’s voluntary.  Also, with privacy settings, how much can you really learn about someone through social media if you are not following them or friends with them?  On that thought, Cohen commented, “…The goal is not to police thought.  It’s to identify and prevent acts of violence.”  But if the users have strong privacy restrictions, is the next step going to be asking them for their user name and password?

Hall states that they need to make sure they “balance security issues against the need to encourage people to visit [the United States].”

Representative of Florida, Vern Buchanan, in a press release, questioned the voluntary option to disclose social media account information.  Buchanan made it very clear that he does not think a terrorist will voluntarily disclose their social media information.   “The only people who will share that information are those with nothing to hide.”

As a counter-argument, Joseph Lorenzo Hall, the chief technologist at the Center of Democracy and Technology, believes that travelers will fill out this section of the form.  Even thought it’s optional, travelers may fear that their chances of entering into the country would be lessened if they leave that section blank.  But Hall does believe that this additional measure could potentially make it harder for people to enter into the United States.

The reasoning behind the new proposal is very clear—to make the United States safe by preventing future attacks; however, the DHS has to be very careful.  Hall states that they need to make sure they “balance security issues against the need to encourage people to visit [the United States].”

Before the proposal can be considered by the government, the public has 60 days to express their questions, concerns, and opinions about the new proposal under the VWP.  The DHS proposal for the VWP is open to the public for comments until August 22, 2016.  If the proposal is approved it is not certain how long it would take before it goes into effect.

Amaka Madu, Senior Staff Writer Emeritus
About Amaka Madu, Senior Staff Writer Emeritus (18 Articles)
Amaka Madu is a 2017 graduate of Campbell Law School and served as a Senior Staff Writer for the Campbell Law Observer. She is originally from Raleigh, North Carolina and graduated from The University of North Carolina at Charlotte in 2013 with a Bachelor of Arts in Psychology and Political Science. Following her first year of law school, Amaka interned at the North Carolina Court of Appeals with Honorable Judge Tyson and during the second half of her summer, she participated in the Baylor Academy of the Advocate study abroad program in St. Andrews, Scotland. Amaka also currently serves as Secretary for Campbell University’s Black Law Student Association.
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