With social media becoming a big part of the economy, public discourse, and the average person’s life, there would inevitably be an increased pressure to scrutinize those connections. The Trump administration has approved of social media checks as part of its new immigration vetting procedures. The social media checks will be in the form of questionnaires and will ask for information such as email addresses, travel history, and social media handles from the past five years.
State Department officials claim that not everyone will be subjected to such checks; officials will only demand information when they believe certain individuals require more “rigorous national security vetting.” Although the Department asserts that these questionnaires are only voluntary for these individuals, any refusal may result in delay of application processing. Many universities and scientists have spoken out against these proposed social media checks, as they may discourage international students from traveling to the United States.
Aside from whether the White House would need Congressional approval for additional to the current vetting process, there are few constitutional obstacles here. The primary concern would likely be equal protection challenges, as leaving background checks to the discretion of government officials would likely raise concerns about discrimination based on ethnicity (Arabs) and religion (Muslims). These social media checks would probably be on better legal ground if they were required of everyone attempting to enter the country, although such an undertaking would probably put a bigger strain on the State Department.
The second concern would be potential Free Speech “chilling” effects. Although the purported purpose of a social media check would be national security, investigating social media accounts would likely put a damper on free speech. Criticism of the American government or American foreign policy is not the same as support for terrorism, but overzealous immigration officials could interpret social media statements as such.
Proponents of tougher immigration vetting would likely argue that non-citizens do not have the same rights as citizens. However, the Constitution is not just a document that declares the rights of citizens; the Constitution’s primary purpose is to define what the federal government can and cannot do. The restrictions on making laws against free speech and equal protection are restrictions on the government; they apply whether the other party is a citizen or not.
What to Take Away from this Change
The question is not whether the First Amendment applies to immigrants, but whether the national security interests of the government outweighs any potential infringement on free speech or privacy rights. What kind of information would a social media check reveal about a potential entrée into the country? If the immigrant follows ISIS on Twitter or is Facebook friends with terrorist suspects, which would certainly raise red flags. However, the issue will become to discretion. While it would be easy for immigration officials to flag down potential ties to terrorism from social media, would they flag Facebook “likes” to mosques? Or family relations in countries like Iran or Pakistan? Although a social media check would be fair and neutral based solely on the text, this amount of discretion is ripe for abuse. The White House, and the nation, would be better served if the President’s executive orders contained enough detail so that such discrimination would not be an issue.
Authored by Jason Cheung, LegalMatch Legal Writer and Attorney at Law