DHS Proposes Collection of Social Media Information for Certain Noncitizen Travelers

DHS has published in the Federal Register a proposal to collect social media information of noncitizens traveling to the US through the Visa Waiver Program, which exempts nationals of certain countries from obtaining a visa in order to gain admission the US. The program has  been the subject of increased scrutiny in the past year, and last December President Obama signed into law the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 .  Comments on the proposal are due August 22.

According to the Federal Register, the proposed change would add the following question to the Electronic System for Travel Authorization (ESTA) and Form I-94W, both of which are used for the Visa Waiver Program:

“Please enter information associated with your online presence—Provider/Platform—Social media identifier.” It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.”

 Anil Kalhan (who brought this proposal to my attention) has written more extensively on the rise of what he calls “immigration surveillance,” in an excellent Maryland Law Review article .  As the article abstract explains, “At virtually every stage of the process of migrating or traveling to, from, and within the United States, both noncitizens and U.S. citizens are now subject to collection and analysis of extensive quantities of personal information for immigration control and other purposes.”   The current proposal, if adopted, would certainly seem to join this trend.

-JKoh