Social Media Activity Targeted in Trump Immigration Crackdown

Trump administration plans to expand the collection of immigrants’ social media data will have a chilling effect on speech in the US, privacy advocates warn.

The Department of Homeland Security rolled out a proposal this month to require disclosure of that information as President Donald Trump has promised to deport visa holders who join campus protests. His administration has already carried out that threat by detaining former Columbia University graduate student Mahmoud Khalil, a legal permanent resident, and revoking another student’s visa—both had participated in demonstrations over Israel’s military campaign in Gaza.

Immigrants and temporary visa holders applying to enter the US for most of the past six years have already had to disclose social media information when entering the country, under a State Department requirement aimed at identifying eligibility or national security issues.

The DHS requirement would be a “marked expansion” of the State Department program, said Saira Hussain, a senior attorney at the Electronic Frontier Foundation. The agency would collect the same information from immigrants—including many already living and working in the country for years—who file for citizenship, employment-based green cards, asylum, and other benefits.

“We’re talking about people who are already residing in the country as green card holders, as people seeking citizenship,” she said. “To require disclosure of this information is an even greater threat to the First Amendment.”

Challenging Disclosure Rule

The State Department during Trump’s first term added a social media disclosure requirement for immigrants and temporary foreign visitors applying for visas outside the US.

Two US-based documentary film organizations argued that mandate violates the First Amendment in a 2019 lawsuit. The government offered no evidence social media screening is a reliable means of assessing threats, they argued, but it places concrete burdens on nearly 15 million visa applicants each year.

The US Court of Appeals for the District of Columbia Circuit heard arguments in their challenge last year after a lower court ruled in the government’s favor.

Attorneys say the social media disclosure requirement has forced many to self-censor and even stop engaging with certain groups through social media. Others have foregone travel to the US for fear that their data could be shared with repressive governments back home.

That means not just visa applicants themselves are harmed, said Anna Diakun, a staff attorney at the Knight First Amendment Institute and counsel in the litigation.

“It hurts Americans who engage with them online and who want to invite them to attend their programs and conferences,” she said.

The State Department and USCIS didn’t respond to requests for comment about the data collection or how it will be used going forward.

Government officials have always had the ability to examine social media accounts although they may not have comprehensively collected that data before, said Daniel Pierce, a partner at Fragomen, Del Rey, Bernsen & Loewy LLP. He said he’s not aware of visa denials linked to online activity but clients have been questioned over LinkedIn profiles that didn’t appear to match petitions.

“I’ve had a few clients ask, ‘Should I be concerned and monitoring what I post on social media now?’” he said. “My response is, largely, you always should have been.”

But plans to expand data collection and promises to target visa holders who engage in protest have fueled new concerns about use of that data to punish speech online and stifle political organizing inside the US.

While the administration has invoked the secretary of state’s authority under a rarely used provision of the Immigration and Nationality Act to justify Khalil’s removal, the Trump administration has signaled it will use separate language in the INA involving support for “terrorist activity” to revoke other visas. Axios reported the State Department will use an “AI-fueled” program—including reviews of social media—to cancel visas of foreign students expressing sympathy for Hamas.

Useful Data?

The push to collect social media data didn’t originate with political leadership, but instead career intelligence and national security officials who view it as useful to catch criminals, said Carl Risch, who was assistant secretary when the State Department adopted the requirements. It’s conceivable the current administration could use the same information to identify people who have expressed opinions on topics like Israel, Gaza, or Hamas, he said.

“It could be one way to perhaps more easily discover things that one has said, or ‘liked,’ or clicked thumbs up on,” said Risch, now a managing partner at Kurzban Kurzban Tetzeli and Pratt P.A.

Former President Joe Biden called for a review of social media data collection in 2021 and the White House rejected an earlier proposal by DHS to collect social media identifiers, finding the agency hadn’t adequately demonstrated its practical usefulness. The Biden State Department continued to defend the disclosure requirements in court, however, and ultimately decided to continue the policy.

Although the agency has never disclosed any assessments of the data collection or its usefulness, “it seems like a no brainer” that trying to identify legitimate threats on social media is incredibly difficult to do for either a human or an automated program, Diakun said.

“How do you interpret whether something is a joke or sarcasm or tongue-in-cheek?” she said. “Layer onto that language barriers and cultural barriers.”

Talk of AI-driven reviews is more “clickbait” than reality right now, Risch said. But he said visa applicants should take seriously the possibility that agencies could use intelligence to zero in on statements that could be used against them. That may mean taking a close look at their statements online.

“As chilling and disturbing as that is for me to say personally, that is the advice,” he said. “I would not want to test this authority.”