Watchdog: 'Uncertainty' may undermine CBP's enforcement of social media policy

Customs and Border Protection fired four employees, suspended 36 and reprimanded 25 others after an internal investigation into racist and sexist social media posts on the part of agency personnel relating to a Facebook group publicized in a 2019 ProPublica story.

According to a watchdog report released last week from the Office of Inspector General at the Department of Homeland Security, top agency officials at headquarters and in the field were not aware of any posts that were in violation of agency policy in advance of the publication of the 2019 article. OIG investigators also found that some agency leaders have doubts about the constitutionality of the department policy prohibiting employees from posting offensive social media content related to the performance of their duties.

According to the report, "a senior Border Patrol leader said that he and others believe current CBP policies on communications and social media conduct violate employees’ right to free speech, as guaranteed by the First Amendment."

The report states that, "these differing opinions and uncertainty about the legality of CBP policies could undermine CBP's efforts to enforce the policies. If senior leaders communicate their personal opinions to employees, efforts to curb social media misconduct could be hindered."

The posts highlighted in the ProPublica article were from the now defunct Facebook group called "I'm 10-15," a reference to a Border Patrol code for "aliens in custody."

Democrats on the House Oversight Committee have been pressing for more accountability for violators of the agency's social media policies since the story originally broke almost two years ago.

"I am deeply troubled that the previous administration may have allowed agents who posted racist and sexually violent material to continue working with vulnerable immigrants and children," Rep. Carolyn Maloney (D-N.Y.), chairwoman of the Oversight panel, said in a statement issued May 14.

According to the report, violations of the agency's social media policies don't rise to the threshold of "serious misconduct" meriting the notification of headquarters, so field officials "often serve a role in the disciplinary system" for officials in their ranks, the report says. The report also states that mandatory social media training instituted by the agency in July 2019 was often not taken seriously by agents and employees.

The report recommended that CBP certify that social media misconduct policies are applied uniformly and create social media awareness training for new recruits and annual training for all employees – recommendations that the IG has marked as closed because of agency actions.

In reply comments, CBP's Henry A. Moak Jr. said the agency was "concerned OIG's draft report said CBP took no action to correct further misconduct when, in actuality, CBP leadership at the highest levels took, and will continue to take, corrective action on any substantiated misconduct through CBP's well-established oversight processes." Moak added that the agency's Office of Professional Responsibility, "periodically cautions employees on how social media posts can adversely affect their federal employment."