Over the last five (5) years, many states have passed legislation protecting the social media usernames and passwords of individual users. Who knew that these protections could also apply to visitors coming to the United States by way of a visa?
Last week, the Trump Administration announced it’s plan to require nearly all applicants for visa to enter the United States to submit their social-media-usernames for the past five (5) years. This plan could affect approximately fourteen (14) million visitors to the United States. Not only would the plan cover applicants seeking immigrant status, it would also include applicants seeking non-immigrant status. A person applying for an immigrant visa is wishing to live in the United States permanently. A person applying for a non-immigrant visa is a person, who permanently resides outside of the United States, who wishes to be in the United States temporarily for a specific reason, tourism, medical treatment, employment or business.
Does a non-citizen applying for a visa ( immigrant or non-immigrant) have any rights when it comes to protecting her social media presence? The first step in this analysis is to address the current rights of U.S. citizens and/or persons, who are employed in the United States. Although there is currently no federal law in place protecting the privacy of an individual’s social media presence, twenty-six (26) states have passed laws, which protect an individual’s username(s) and/or password(s). Pursuant to many of these social media laws, an employer is prevented from requesting from prospective employees and, in many cases, current employees, their usernames and/or passwords. For instance, the states of New Jersey, Arkansas, Colorado, Connecticut, Illinois, Louisiana, Montana, Nebraska, Oklahoma, Utah, Vermont, Virginia, and West Virginia, protect both usernames and passwords.
Maine, Rhode Island, Tennessee, Washington, and Wisconsin, only protect passwords, while Delaware, Michigan, and New Hampshire, protect usernames.
Should a non-citizen applying for a visa be afforded any of these rights? Let’s start with answering a different question first- do they have any rights under our Constitution? Many people believe and would argue they do not, but they would be wrong. Non-citizens have a wide range of rights under the Constitution even if they are outside of U.S. borders, particularly in regard to immigration issues. Some examples are the 1st Amendment, which prevents the government from censoring a non-citizen’s speech or suppressing the practice of religion, the 4th Amendment, which protects against unreasonable search and seizures, and the 5th Amendment, ensuring that a non-citizen’s property can only be taken by the government for public use and after paying fair compensation for the taking.
It is debatable whether the Constitution gives the federal government general, unrestricted powers over immigration. Even if it does, it does not follow that this authority is exempt from constitutional limitations. Based upon the foregoing, a court challenge could be mounted by arguing that the proposed plan of social media screening violates the 1st Amendment referencing the various state social media protection laws in support of the argument.
Opponents to the social media screening plan will argue that the collection of huge amounts of social media information will infringe on the rights of all those applying for visas, as well as U.S. citizens, by chilling the freedom of speech because applicants will be worried that what they say, or have said, online will be misconstrued or misinterpreted by government officials.
As Oliver Wendell Homes, a former Supreme Court Justice and strong 1st Amendment advocate, once said:” When men have realized that time has upset many fighting faiths, they may come to believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas.”
The government has legitimate interests and motivations in proposing this policy. However, opponents will also argue that the plan is overly broad and too intrusive. The government’s interests could be met by a policy that more narrowly targets information that is readily available and highlights circumstances in which more social media information would be required. Examples of this tailoring can be found in the exceptions contained in most of the state laws which prohibit access to usernames and passwords. For example, public posts and comments are not protected by these state laws. Additionally, if the government has a reasonable belief, or specific information, that the individual is engaging, or participating, in activities or actions which could affect the government’s compelling and legitimate interests, then access to usernames and, even in some cases, passwords would be justified.
Proponents of the social media screening plan will claim that it is necessary to meet emerging and current threats to national security and the safety of our citizens. Proponents will point to the Plenary Power Doctrine arguing that this doctrine gives the federal government broad power to adopt otherwise unconstitutional policies in the treatment of immigration matters. Some will argue that this doctrine is sound because an alien has no legal right to enter the United States in the first place, entry is within the sole discretion of the United States government.
The court challenge will ultimately pit these two (2) competing interests against each other. The Supreme Court is already considering the balance between these competing interests with regard to President Trump’s executive order of a revised “travel ban.” This executive order attempts to bar individuals from several Muslim-majority countries from entering the United States. At least two (2) federal courts have ruled against the executive order and one (1) federal court has ruled in it’s favor. The Supreme Court recently announced it will decide the legality of the revised travel ban.
It is possible that the legality of this social media screening plan will ultimately be a companion case. The court will have to decide if the plan is legal and enforceable or whether it is unenforceable because it is unnecessarily intrusive.
A court challenge is worthwhile and likely necessary to protect the rights of all.
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