WASHINGTON — A pair of documentary film organizations sued the Trump administration on Thursday over its requirement that foreigners disclose their social media accounts — including pseudonymous ones — when they apply for visas.
The lawsuit, which raises novel issues about privacy and surveillance in the social-media era, challenged a rule the State Department put into effect this year. The requirement grew out of President Trump’s campaign promise of “extreme vetting” and his early executive orders that barred travel into the United States from several Muslim-majority nations.
In particular, the lawsuit alleges, forcing people from authoritarian countries to disclose the pseudonyms they use to discuss politically sensitive matters could endanger them by creating a risk that the information gets back to their own governments. As a result, it said, they will be less likely either to express themselves on social media or to apply for visas.
“Many people use pseudonyms on social media so that they can speak anonymously about sensitive or controversial issues, and so that they can shield themselves or their families or associates from possible reprisals by state or private actors,” the plaintiffs wrote. “The registration requirement effectively conditions their eligibility for U.S. visas on their readiness to surrender their online anonymity.”
The Trump administration announced the rule in 2018 and started enforcing it this year. The State Department changed its visa application forms to require applicants to disclose all identifiers they have used on any of 20 social media platforms for the past five years, including Twitter, Facebook and Instagram. The rule covers about 14.7 million people who apply for a visa each year.
The complaint, filed in the Federal District Court for the District of Columbia, challenged both the State Department, which administers visa applications, and the Department of Homeland Security, which it says uses visa application data for other purposes, including administering immigration law.
The Trump administration did not immediately comment on the lawsuit.
The complaint maintains that administration officials improperly developed the rule — arguing that they failed to point to evidence that it would be effective and necessary — and that it violates the Constitution by chilling rights of free speech and association.
Visa applicants “must consider the risk that a U.S. official will misinterpret their speech on social media, impute others’ speech to them, or subject them to additional scrutiny or delayed processing because of the views they or their contacts have expressed,” the lawsuit said.
Demanding the data also creates the risk that authoritarian and other rights-abusing governments, “including some U.S. allies,” may use it to unmask anonymous dissidents, it said.
“Those who use pseudonymous identifiers must take into account that they will have to relinquish their online anonymity to U.S. officials when they submit their visa applications, and they must also consider the risk that U.S. officials will disclose their social media identifiers to foreign governments, reveal the identifiers inadvertently, or fail to protect the identifiers from third parties who might access them unlawfully.”
The lawsuit was jointly developed by the Knight First Amendment Institute at Columbia University and the Brennan Center for Justice at New York University School of Law. They are representing two documentary film companies — Doc Society, based in Brooklyn, and the International Documentary Association, based in Los Angeles — that host conferences and workshops that bring foreign filmmakers and social activists to American soil.
While most of the people affected by the new rule are foreigners abroad, who generally do not have constitutional rights, the lawsuit noted that the requirement also covers people with substantial ties to the United States, including people already residing on domestic soil — like foreign students and foreigners with work permits — who renew their visas while abroad.
Since the change took effect, visa applicants from abroad have been compelled to disclose to American consular officials all social-media handles or user names they have used on major platforms, 12 of which are based in the United States: Facebook, Flickr, Google+, Instagram, LinkedIn, Myspace, Pinterest, Reddit, Tumblr, Twitter, Vine and YouTube.
The forms also ask about a Russian service, VK; a Belgian one, Twoo; a Latvian one, Ask.fm; and five Chinese sites: Douban, QQ, Sina Weibo, Tencent Weibo and Youku.
The forms do not require applicants to turn over their passwords to see nonpublic information. But the complaint stresses the risk created by forcing people to turn over pseudonymous accounts, citing partners of the plaintiffs who have used them to “conduct sensitive research for a film about Nazis online, including joining discussion groups and contacting members of known Nazis’ families” and a member from Syria who “uses pseudonymous accounts as a safety measure against political persecution.”
The lawsuit said some partners and members of the plaintiffs are now self-censoring, including deleting old posts that criticized the Trump administration’s policies. Others “are no longer applying for U.S. visas — and are forgoing personal, educational, and professional opportunities” because they fear the consequences of disclosing their social media accounts.
“The government simply has no legitimate interest in collecting this kind of sensitive information on this immense scale, and the First Amendment doesn’t permit it to do so,” said Jameel Jaffer, the executive director of the Knight Institute.
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