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Big Brother DHS

November 28, 2017

BIG BROTHER[1] DHS: IMMIGRANT SOCIAL MEDIA DATA COLLECTION AND THE CONSTITUTIONAL CHALLENGES IT FACES

By: Paul Baxter, Volume 102 Staff Member

With the advent and growth of social media, more and more of us put aspects of our lives online for all to see.[2] Many do not understand the implications of this until something goes wrong.[3] Perhaps fortunately, most only need to observe it all go wrong for someone else. On October 18, 2017, that changed for all migrants[4] living in the United States. On that day, the Department of Homeland Security (DHS) put into effect its policy of adding a migrant’s public social media content to their permanent A-File.[5] Now, each time a migrant posts something on Twitter or Facebook, they must consider how it will appear to Big Brother DHS. If the post suggests a violation of the conditions of their visa status, they risk any number of immigration consequences—up to and including deportation.

This Post will start with some background information and a brief introduction of what the policy proposes to do. It will then argue that the proposed system is constitutionally suspect on two grounds. First, it has an inappropriate chilling effect upon free speech protected by the First Amendment. Second, it violates equal protection principles by treating two categories of citizens differently.

I. BACKGROUND

DHS and its predecessors have long maintained records of migrants with whom they come into contact in Alien Files, or A-Files.[6] These A-Files include records “relating to the adjudication of [immigration] benefits, investigation of immigration violations, and enforcement actions.”[7] A-Files are permanent, with DHS transferring them to the National Archives 100 years after the birth of the individual in question.[8] The previous DHS notice detailing the contents of these files make it clear that, as of 2013, A-Files already included a wide array of information, ranging from family history and Social Security numbers to physical characteristics like race and fingerprints.[9] Also, unlike other government records available under the Privacy Act, DHS exempts the A-File record system from the Act’s regular notification, access, and amendment procedures.[10] Instead, individuals who want their A-Files must submit a Freedom of Information Act (FOIA) request to DHS.[11]

On September 18, 2017, DHS published the notice that it was updating its A-File system of records.[12] During the month-long comment period, it received over 4,000 comments, nearly 3,000 of which are publicly available.[13] By contrast, the 2013 notice detailing the same system of records received zero comments.[14] The updated system overlaps substantially with the previous one. Both apply to the same individuals, which include naturalized citizens, lawful permanent residents (green card holders), migrants subject to the Immigration and Nationality Act (INA) and the relatives and associates of these individuals.[15] Under both systems, A-Files are permanent and only accessible through a FOIA request.[16] Both store large amounts of personal information in those A-Files.[17]

So, what led to so many more comments? Many comments focus on just one new sentence: A-Files may now include an individual’s “[s]ocial media handles and aliases, associated identifiable information, and search results.”[18] DHS has not issued a formal response, but in public statements argues this policy is nothing new.[19] Furthermore, while the notice does not define “associated identifiable information” or “search results,” DHS has publicly said this covers only “publicly available information.”[20]

II. THE CHILLING EFFECT ON SPEECH WHEN SOCIAL MEDIA IS MONITORED

“A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”[21] This applies to digital spaces as well as physical ones.[22] When analyzing whether the Constitution permits a statute or regulation under the First Amendment, courts consider whether it has a chilling effect on speech.[23] This is a practical consideration, used to overcome standing issues that arise when the threat of sanctions alone may modify individuals’ behavior.[24] It is a recognition that compliance with an overbroad or unconstitutional law may be preferable to the risks that come with challenging the statute after violating it.[25]

The DHS will be monitoring migrants’ public web presence, including social media, but also wherever else the individual may appear as a “search result.”[26] The notice is vague on how this will be done. However, other Government entity actions suggest it will be done broadly. For instance, social media monitoring efforts by law enforcement agencies are growing across the country.[27] They include watching for crimes, but also monitoring political movements like BlackLivesMatter.[28] DHS itself previously hired third-party contractors to monitor social media accounts to gauge reactions to political proposals.[29] And these programs do impact behavior. For instance, the revelations of broad NSA surveillance had a measurable effect on the traffic to certain sites.[30]

This history, combined with the permanence of the A-File and potential immigration consequences, means the stakes are high for any migrant who posts on social media. DHS can put anything posted into that file, with only the limited online context to which DHS has access. Even if DHS does not use the posted speech immediately, the long life of the A-files means the record of that speech will persist for years. As societal context shifts, today’s jokes become tomorrow’s threats, and migrants may find that things they said online as teenagers come back to haunt them. All of this creates a classic chilling effect: A migrant must weigh exercising their right to free speech against the risk of DHS using that speech against them in an immigration proceeding. Given the potential stakes of such an immigration proceeding, many will likely decide to simply remain silent.

III. THE RECORD SYSTEM VIOLATES EQUAL PROTECTION

Not only is this record gathering potentially suspect on First Amendment grounds, but it may face issues on equal protection grounds as well. Under the Fourteenth Amendment, every person shall receive the “equal protection of the laws.”[31] While the Fourteenth Amendment only applies to the states, the Supreme Court has held that the Fifth Amendment includes an implicit “equal protection component prohibiting the United States from invidiously discriminating between individuals or groups.”[32] The Supreme Court has not ruled naturalized citizens are a protected group under equal protection. However, it has held discrimination based on national origin faces close judicial scrutiny.[33] Under strict judicial scrutiny, the Government must have a “compelling interest” in a policy that affects similarly situated groups differently, and must narrowly tailor the policy to achieve that interest.[34]

DHS explicitly states that its system of records applies to naturalized citizens.[35] It is true equal protection does not apply to non-citizen migrants to the same degree as citizens.[36] However, the law treats naturalized citizens the same as native citizens, other than with respect to eligibility for the Presidency.[37] In separating out naturalized citizens, DHS effectively creates two categories of monitoring based primarily on a citizen’s country of birth. People born in the United States have no A-File kept on them, while DHS could continue to surveil those born outside the United States, even after they have naturalized.

Furthermore, statements by DHS demonstrate its policy is not narrowly tailored to its goals by offering explanations that the policy is narrower than it appears. DHS publicly stated it does not authorize personnel to “search the social media accounts of naturalized citizens.”[38] However, it does not identify any language in the notice distinguishing naturalized citizens from any other individuals covered by the policy.[39] DHS then argues the notice “simply restates USCIS’ authority to search publicly available social media information of individuals applying for naturalization.”[40] But yet again, this is not in line with the text of the notice.[41] If that is the intent of the notice, then DHS should narrow the language. As written, the notice treats two categories of citizens differently based on how they achieved their citizenship.

Furthermore, these collections harm naturalized citizens because it exposes them to greater risk. When the topic of data collecting arises, a common refrain is the subjects of these collections have suffered no injury. However, this ignores the actual world in which we live. The Equifax hack put hundreds of millions at risk for identity theft when its databases were compromised.[42] Like the DHS system, Equifax’s data included important identifying information like Social Security numbers, birthdates, and addresses.[43] Unfortunately, the Equifax hack is not an isolated event; it is only the most recent and egregious.[44] DHS indicates it has strict controls in place to minimize the risk of data compromise,[45] but government actors have not had much better luck than private ones.[46] To say naturalized citizens suffer no injury ignores that every day DHS holds onto their data is another day their data is at risk. DHS forces all naturalized citizens to suffer that risk without requiring native citizens to do the same.

  1. George Orwell, 1984 (1949) (“BIG BROTHER IS WATCHING YOU.”). ↑
  2. See Andrew Perrin, Social Media Usage: 2005-2015, Pew Research Center (Oct. 8, 2015), http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015 (reporting that the percentage of adults with a social media account went from 7% in 2005 to 65% in 2015). ↑
  3. See Alyssa Giacobbe, 6 Ways Social Media Can Ruin Your Life, Boston Globe (May 21, 2014), https://www.bostonglobe.com/magazine/2014/05/21/ways-social-media-can-ruin-your-life/St8vHIdqCLk7eRsvME3k5K/story.html (discussing stories of individuals who lost their jobs and worse due to inappropriate jokes or comments made online). ↑
  4. “Migrant” will be used here to refer to people living in the United States who were born in another country, whether they are naturalized citizens, lawful permanent residents, refugees, etc. ↑
  5. 82 Fed. Reg. 43,556 (Sept. 18, 2017). ↑
  6. A-Files Numbered Below 8 Million, USCIS, https://www.uscis.gov/history-and-genealogy/genealogy/files-numbered-below-8-million (last updated Feb. 9, 2016). ↑
  7. 82 Fed. Reg. 43,556 (Sept. 18, 2017). ↑
  8. 82 Fed. Reg. 43,564 (Sept. 18, 2017). It states that the A-Files “are maintained in accordance with [the] N1–566–08–11 [retention schedule].” Id. This means permanently. See Privacy Impact Assessment Update for the Integrated Digitization Document Management Program 7, DHS (Feb. 28, 2017), https://www.dhs.gov/sites/default/files/publications/privacy-pia-uscis-003-b-iddmp-april2017.pdf. ↑
  9. 78 Fed. Reg. 69,867 (Nov. 21, 2013). ↑
  10. 82 Fed. Reg. 43,564 (Sept. 18, 2017). ↑
  11. 82 Fed. Reg. 43,564 (Sept. 18, 2017). But see Dent v. Holder, 627 F.3d 365 (9th Cir. 2010) (holding the Government must turn over copies of an individual’s A-File in cases where removability is contested). ↑
  12. 82 Fed. Reg. 43,556 (Sept. 18, 2017). ↑
  13. DHS/USCIS-001 Alien File, Index, and National File Tracking System of Records Docket, Regulations.Gov, https://www.regulations.gov/docket?D=DHS-2017-0038 (last visited Nov. 4, 2017). ↑
  14. DHS/USCIS/ICE/CBP-001 – Alien File, Index, and National File Tracking System of Records Docket, Regulations.Gov, https://www.regulations.gov/docket?D=DHS-2013-0069 (last visited Nov. 4, 2017). ↑
  15. Compare 82 Fed. Reg. 43,559 (Sept. 18, 2017), with 78 Fed. Reg. 69,866 (Nov. 21, 2013). ↑
  16. Compare 82 Fed. Reg. 43,564 (Sept. 18, 2017), with 78 Fed. Reg. 69,870 (Nov. 21, 2013). ↑
  17. Compare 82 Fed. Reg. 43,559 (Sept. 18, 2017), with 78 Fed. Reg. 69,866 (Nov. 21, 2013). ↑
  18. 82 Fed. Reg. 43,560 (Sept. 18, 2017). ↑
  19. See Matt Novak, US Homeland Security Says Tracking Social Media of Immigrants Is Nothing New, Gizmodo (Sept. 28, 2017), https://gizmodo.com/us-homeland-security-says-tracking-social-media-of-immi-1818875395 (quoting an email from DHS). Indeed, it does appear that DHS was collecting personally identifiable information from social media before 2017. See DHS, Privacy Policy for Operational Use of Social Media (June 8, 2012), https://www.dhs.gov/sites/default/files/publications/Instruction_110-01-001_Privacy_Policy_for_Operational_Use_of_Social_Media.pdf. ↑
  20. See Novak, supra note 20. ↑
  21. Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). ↑
  22. See id. ↑
  23. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 486–87 (1965) (discussing the contexts of when the “chilling effect upon the exercise of First Amendment rights” may be challenged). ↑
  24. See, e.g., id. (“A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms.”); see also Note, The Chilling Effect in Constitutional Law, 69 Colum. L. Rev. 808, 809–12 (1969). ↑
  25. See Note, The Chilling Effect in Constitutional Law, 69 Colum. L. Rev. 808, 809–12 (1969). ↑
  26. 82 Fed. Reg. 43,560 (Sept. 18, 2017). ↑
  27. See Elizabeth Dwoskin, Police Are Spending Millions of Dollars to Monitor the Social Media of Protesters and Suspects, Wash. Post (Nov. 18, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/11/18/police-are-spending-millions-to-monitor-the-social-media-of-protesters-and-suspects. ↑
  28. Id. ↑
  29. See Charlie Savage, Federal Contractor Monitored Social Network Sites, N.Y. Times (Jan. 13, 2012), http://www.nytimes.com/2012/01/14/us/federal-security-program-monitored-public-opinion.html (describing how DHS paid a contractor to monitor the reactions of residents in a Michigan town to a government proposal). ↑
  30. See Jonathon W. Penney, Chilling Effects: Online Surveillance and Wikipedia Use, 31 Berkeley Tech. L.J. 117 (2016) (finding a statistically significant decrease in traffic to Wikipedia articles on topics that raise privacy concerns after the public revelations about PRISM and the NSA). ↑
  31. U.S. Const. amend. XIV, §1. ↑
  32. Washington v. Davis, 426 U.S. 229, 239 (1976). With respect to the equal protection components, the analysis done under the Fifth and Fourteenth Amendments is “indistinguishable.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995). ↑
  33. Graham v. Richardson, 403 U.S. 365, 372 (1971); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). ↑
  34. Cleburne Living Ctr., 473 U.S. at 440. ↑
  35. 82 Fed. Reg. 43,559 (Sept. 18, 2017). ↑
  36. See, e.g., Hampton v. Mow Sun Wong, 426 U.S. 88, 100–01 (1976) (finding a citizenship requirement for certain federal positions was justified). ↑
  37. See Luria v. United States, 231 U.S. 9, 22 (1913) (“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency.”). ↑
  38. Novak, supra note 20. ↑
  39. Id. See also 82 Fed. Reg. 43,559 (Sept. 18, 2017) (listing the “categories of individuals covered by the system,” without any distinction as to what parts of the notice apply to which group of people). ↑
  40. Novak, supra note 20. ↑
  41. See 82 Fed. Reg. 43,559 (Sept. 18, 2017). ↑
  42. See Tara Siegel Bernard et al., Equifax Says Cyberattack May Have Affected 143 Million in the U.S., N.Y. Times (Sept. 7, 2017), https://www.nytimes.com/2017/09/07/business/equifax-cyberattack.html. ↑
  43. Id. ↑
  44. See, e.g., Vindu Goel & Nicole Perlroth, Yahoo Says 1 Billion User Accounts Were Hacked, N.Y. Times (Dec. 14, 2017), https://www.nytimes.com/2016/12/14/technology/yahoo-hack.html; Andrew Blake, Millions of Verizon Customers Affected by Security Breach, Wash. Times (July 13, 2017), https://www.washingtontimes.com/news/2017/jul/13/millions-verizon-customers-impacted-security-breac. ↑
  45. 82 Fed. Reg. 43,564 (Sept. 18, 2017). ↑
  46. See, e.g. Dustin Volz & Jason Lange, SEC Hacking Latest in Series of Government Agency Cyber Breaches, Insurance J. (Sept. 22, 2017) https://www.insurancejournal.com/news/national/2017/09/22/465187.htm (noting that hackers and rogue employees have recently stolen data from not only the SEC, but “the Internal Revenue Service, the State Department and intelligence agencies”). In fact, DHS itself was the victim of a cyberattack last year, though it indicated no personally identifiable information was stolen. Eric Lichtblau, Hackers Get Employee Records at Justice and Homeland Security Depts., N.Y. Times (Feb. 8, 2016), https://www.nytimes.com/2016/02/09/us/hackers-access-employee-records-at-justice-and-homeland-security-depts.html?_r=0. ↑
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