Privacy groups slam DHS social media proposal

The Department of Homeland Security's proposed policy to collect information on the social media profiles of foreign travelers violates the rights of travelers and their American associates, according to privacy groups.

In a strongly worded rebuke of the proposed Customs and Border Protection policy, the Electronic Frontier Foundation argued that the rule change would do little to enhance national security and would open the door to greater spying on Americans.

"We think that the means of searching people's social media as a precondition of entering the country is and should be out of bounds," said Adam Schwartz, a senior staff attorney at EFF.

On June 23, CBP issued a request for comments on a rule change that would affect Visa Waiver Program (VWP) travelers by adding requests for social media identifiers to the Electronic System for Travel Authorization and I-94W forms.

In the request, CBP stated that "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."

As FCW reported in June, the rule change came on the heels of a number of policies CBP initiated after criticism from Congress that potential terrorists could be exploiting the VWP, which allows citizens of 38 countries to enter the U.S. without a visa for up to 90 days.

In its Aug. 22 comments, EFF argued that the policy would suppress internet freedom because prospective travelers might censor themselves or delete social media accounts out of concern that their online comments could be misconstrued. In addition, EFF said those who are looking to do harm to America are not posting on public social media platforms, so the policy would not yield usable intelligence.

Other human rights groups and civil liberties organizations submitted a joint letter to CBP stating that "DHS collection of online identity information is an intelligence surveillance program clothed as a customs administration mechanism."

The coalition of more than two dozen organizations -- including the American Civil Liberties Union, the Center for Democracy and Technology and the Council on American-Islamic Relations -- said the proposed language was vague and open ended.

"Applicants would have little or no opportunity to explain information associated with their online profiles or challenge inappropriate waiver denials," the letter states.

It went on to argue that cultural and linguistic barriers would increase the risk of discrimination against Arabs and Muslims seeking to enter the U.S.

In more supportive comments delivered to CBP, the Center for Data Innovation said that just as universities, employers and lenders check social media profiles of potential clients, DHS should collect social media information from foreign travelers. Center officials said they believe CBP can use social media to corroborate the claims of foreign travelers about their work, purpose for visiting the U.S. and travel history.

However, they urged CBP to test the policy in a controlled study before using the gathered data in any widespread fashion.

"As part of this pilot study, DHS should evaluate the impact on travelers, CBP agent productivity and national security, including false positives and false negatives generated by the system," the center said in its comments.

It also urged CBP to consult with civil liberties organizations and publicly release the findings of any evaluation it conducts.

EFF, however, argued that CBP is on a slippery slope and already violating the rights of travelers with an existing policy that requires access to computers and phones upon an individual's arrival in the U.S.

"CBP's proposal to instruct VWP visitors to disclose their social media identifiers is just the latest effort in a broader CBP strategy to scrutinize the digital lives of innocent travelers -- foreigners and Americans alike -- and it may inspire further CBP violations of privacy and First Amendment rights," EFF said in its comments.

DHS said it will issue a response once it has reviewed the public comments.