THE TORCH: CONTENTSBy Joan Friedland
NOVEMEBER 30, 2017

If you’re an immigrant—whether you’re authorized to be in the U.S. or not—or a naturalized U.S. citizen, the U.S. Department of Homeland Security (DHS) wants to track your activities. The targets of DHS’s plan to continually surveil and monitor are not only people applying for immigration status or attempting to cross the border into the U.S. DHS wants to keep its eye on all aspects of immigrants’ daily lives, as the Trump policy of extreme vetting takes effect.

In particular, DHS plans to monitor social media and other Internet activity in carrying out its new surveillance policy. In September 2017, DHS formally issued a notice describing its plans to expand the official record of an individual’s immigration history to include “social media handles and aliases, associated identifiable information, and search results” and to expand record source documents to include “information obtained from the Internet, public records, public institutions, interviewees, [and] commercial data aggregators.”

This means that social media information and information from the Internet will become part of an individual’s “alien file” (A-file), or permanent record. As a result, this information will be available whenever a court or law enforcement agency checks a person’s A-file.

NILC recently submitted comments about the DHS notice, explaining that it authorizes continuous, open-ended monitoring of immigrants and citizens without probable cause or reasonable suspicion of wrongdoing and without transparency, oversight, or accountability. The notice in effect allows the creation of secret files. Individuals who are the subject of the monitoring or those with whom they may be communicating won’t know that the information has been collected, stored, or shared.

While DHS has, in fact, been collecting and using social media information for years, it hasn’t until now taken the formal, required steps to announce this practice. Its track record with pilot programs to use social media is abysmal. The DHS Office of Inspector General concluded in 2017 that U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) pilot projects to use social media for vetting purposes, “did not define what would constitute a successful outcome, nor did [they] identify metrics against which to benchmark [their] findings.”

Even now, DHS is trying to hide what it’s doing, arguing that it only collects social media information when individuals apply for immigration benefits and that it doesn’t collect information about naturalized citizens. But under the Sept. 2017 DHS notice, access to an individual’s social media information is available to a wide range of domestic and foreign agencies, and the information is meant to be used for enforcement beyond just immigration applications. The categories of people whose information may be collected, used, and shared are broad. Naturalized U.S. citizens—not just immigrants who are applying for citizenship—are specifically included, along with all other noncitizens, whether documented or undocumented.

The social media and Internet monitoring is part of a larger program of “extreme vetting.” As DHS recently wrote as part of an event to discuss future contracts for vetting of noncitizens, “The gaps in the current vetting model along with existing limitations in the vetting process create a compelling case for ICE to take action to develop and implement a continuous vetting strategy, framework and process.”

But it’s hard to see how collecting vast quantities of random information will accomplish any meaningful purpose. DHS says it plans to use sophisticated algorithms and automation to filter the information. But these are untested mechanisms of predictive policing, which are likely to produce “inaccurate and biased” conclusions.

Immigrants and naturalized citizens have good reason to fear that their social media information and other information gleaned from the Internet will become part of their records and make them targets. And they are not the only ones who need to worry, as information pertaining to their associates and those with whom they have communicated through social media will also become part of the records. This will no doubt chill participation in daily activities of modern life and the free expression and exchange of ideas and opinions. People will fear that their lawful activities will be misinterpreted.

Continuing its customary policy of avoiding oversight, DHS has exempted this system of records from Privacy Act protections regarding disclosure, access, relevance, notification, accuracy, and dissemination of information as well as judicial review of the agency’s actions in particular cases. As a result, much of what DHS is doing will remain shrouded in secrecy.

In addition, DHS is outsourcing to private companies the development of systems to carry out its extreme vetting program, just as it is contracting with private companies to develop investigative and case management systems that support immigration enforcement. This will make the job of tracking these systems harder, and it is already making clear how critical it is to understand and oppose what DHS is doing.

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Joan Friedland is a NILC consultant and the primary author of our report “Untangling the Immigration Enforcement Web: Basic Information for Advocates about Databases and Information-Sharing Among Federal, State, and Local Agencies.” She formerly was a managing attorney at NILC.