DHS Is Your Friend on Facebook, Whether You “Like” It or Not

by Jason Dzubow on March 15, 2017

Following the December 2, 2015 terrorist attack in San Bernardino, California, where the husband-and-wife perpetrators had purportedly become radicalized via the internet, Congress requested that the Department of Homeland Security (“DHS”) take steps to better investigate the social media accounts of immigrant applicants (the husband was an American-born U.S. citizen of Pakistani decent; his wife was a lawful permanent resident from Pakistan). In response, DHS established a task force and several pilot programs to expand social media screening of people seeking immigration benefits and U.S. visas. DHS also approved creation of a Social Media Center of Excellence, which would conduct social media background checks for the various DHS departments. The Center of Excellence would “set standards for social media use in relevant DHS operations while ensuring privacy and civil rights and civil liberties protections.”

The director of the Center of Excellence, Bill S. Preston, Esquire.

Last month, the DHS Office of Inspector General released a (clumsily) redacted report detailing the efficacy of DHS’s efforts and making suggestions. Due to the incomplete redaction job, it seems likely that the pilot program focused on refugees and perhaps asylum seekers, but the plan is to expand the program to cover all types of immigration benefits.

The goal of the pilot program was to help develop policies and processes for the standardized use of social media department-wide. “USCIS had previously used social media in a limited capacity, but had no experience using it as a large-scale screening tool.” The pilot program relied on manual and automated searches of social media accounts to “determine whether useful information for adjudicating refugee applications could be obtained.” It seems that the ability of DHS to investigate social media accounts was limited by technology: At the time the pilot program was launched in 2016, “neither the private sector nor the U.S. Government possessed the capabilities for large-scale social media screening.”

In one portion of the pilot program, applicants were asked to “voluntarily” give their social media user names. USCIS then “assessed identified accounts to determine whether the refugees were linked to derogatory social media information that could impact their eligibility for immigration benefits or admissibility into the United States.”

DHS has also been looking into social media, email, and other computer files of people entering or leaving the United States, including U.S. citizens, and this inquiry is far from voluntary. There have been numerous recent reports of DHS Customs and Border Protection (“CBP”) agents demanding passwords for cell phones and computers. The number of people subject to such searches increased significantly at the end of the Obama Administration, and seems to be further increasing under President Trump. Anecdotal evidence suggests that the large majority of people targeted for these searches are Muslim.

All this means that DHS may be looking at your accounts on Facebook, Twitter, LinkedIn, Instagram, etc. to determine whether you pose a threat and (possibly) to assess your credibility. They might also gain access to your email and other information stored on your computer or your cell phone. This data could then be used to evaluate your eligibility for immigration benefits, including asylum.

On the one hand, it seems reasonable that DHS would want to look into social media and other on-line material. After all, it is well-known that terrorists rely on the internet to spread their messages, and as DHS notes, “As the threat landscape changes, so does CBP.” Also, most immigration benefits are discretionary, meaning that even if you qualify for them, the U.S. government can deny them in the exercise of discretion. Therefore, if DHS “requests” certain information as part of the application process, and the applicant fails to provide it, DHS can deny the benefit as a matter of discretion.

On the other hand, the inter-connectivity of the on-line world could yield evidence of relationships that do not actually exists. For example, one study estimates that Facebook users (all 1.6 billion of them) are connected to each other by 3.57 degrees of separation. That means there are–on average–only 3.57 people between you and Osama bin Laden (assuming he still maintains his Facebook page). But of course, it is worse than that, since there are many terrorist suspects on Facebook, not just one (Osama bin Laden). So if you are from a terrorist-producing country, it’s likely that suspected terrorists are separated from you by less than 3.57 degrees of separation. Presumably, DHS would take these metrics into account when reviewing on-line data, but you can see the problem–your on-line profile may indicate you have a relationship with someone with whom you have no relationship at all.

So what can you do to protect yourself?

First, don’t be paranoid. It’s nothing new for DHS or other government agencies to search your on-line profile. Since everything posted on-line is, at least in a sense, public, you should be discrete about what you post, and you should be aware that anyone–including the U.S. government–could be reading it.

What’s more problematic is when CBP seizes electronic devices at the border and then reviews emails and other confidential information. This is extremely intrusive and an invasion of privacy. There is also an argument that it violates the Fourth Amendment right to be free of unlawful searches, but generally, people coming and gong from the U.S. have less protection than people in the interior (though I imagine that as CBP steps up the practice, we will see lawsuits that further define Fourth Amendment rights at the border). Knowing that you could be subject to such a search at least enables you to prepare yourself. Don’t travel with devices if you don’t want them searched. Be careful what you store on your devices and in the cloud.

Also, if you think you have problematic on-line relationships or derogatory on-line information, be prepared to explain yourself and present evidence if the issue comes up.

On-line information can affect an asylum or immigration case in more subtle ways. For example, if you state in your application that you attended a protest on a particular date, make sure you got the date correct–DHS may be able to find out the date of the protest, and if your account of events does not match the on-line information, it could affect your credibility. The same is true for more personal information. For instance, if your asylum application indicates you attended high school from 1984 to 1987, that should match any available information on the internet. Mostly, this simply requires that you take care to accurately complete your immigration forms, so that there are no inconsistencies with data available on-line.

Again, it’s not really news that DHS is reviewing social media and other on-line information. It does appear that such practices will become more common, but as long as applicants are aware of what is happening, they can prepare for it.

{ 7 comments… read them below or add one }

Husni July 24, 2017 at 8:40 am

Hello Mr. Dzubow,

My question isn’t related to the article’s topic but I would appreciate it if you reply. I came here with my family from Syria in 2013 and we applied for asylum on October of that year. Since then we have been interviewed 3 times. 2 times within 2013 and 2014 and the third was with a new officer that learned about the whole case in 2016. I am wondering why would a decision take that long? The case has been pending for about 4 years now. I am a biochem major on the premed track and I am one of the top students at my college. However, my dream of attending medical school will not come true without a green card. The process to get in along with the funding is really complicated and is close to impossible. I really am not sure of what things can be done. It is just a decision, how could it be so hard for them to make it? If they want to reject our case, why didn’t they do so already?? Please give me your thoughtful input on that and what things I can do to expedite the process if possible. P.S. I was wondering if the ACLU can be of any help for us.

Thank you very much,

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Husni July 24, 2017 at 8:43 am

Also, we applied to the Arlington office.

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Jason Dzubow July 25, 2017 at 6:14 am

I did postings about this on February 26, 2015 and October 20, 2015. Maybe those would help. Cases from certain countries (especially Muslim countries) often take longer. You can contact the local asylum office to inquire, and explain your problem. You can find their contact info if you follow the link at right called Asylum Office Locator. You can also contact the USCIS Ombudsman – a link is at right; they can sometimes help with delayed cases. Finally, if none of that helps, you can file a mandamus lawsuit. I doubt that the ACLU would help with that, but it might be worth asking because there are many people stuck like you, and maybe ACLU would want to take on a piece of “impact litigation” that would help many people. Most people have to hire a lawyer to help with this. Finally, even if the case is not resolved, I would not give up on the med school dream – we have clients who are attending medical school (maybe they are wealthy and can pay for it – I do not know), and sometimes there is scholarship money available even to people with no permanent status. Maybe the med schools can help with this. Take care, Jason

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Husni July 24, 2017 at 8:30 am

H

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Jack July 5, 2017 at 3:13 pm

Hi Jason,
My friend asylum case been denied by the immigration judge, as well as an asylum officer. He wants to stay in the US. Is there anything wrong will happen to him regarding his stay? Depotration maybe?
He has employment card. Thank you

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Jack July 5, 2017 at 4:07 pm

Just to clarify he didnt file an appeal re judge decission.

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Jason Dzubow July 6, 2017 at 6:40 am

If the case was denied by a judge, he can appeal. While the appeal is pending, he can keep his employment card. However, if he loses the appeal or he does not appeal, the employment card becomes invalid, and it may not work if employers check it using the computerized system. He should probably talk to a lawyer to evaluate whether there is anything more to be done for him, but if not, he can be detained and deported at any time. Take care, Jason

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