Feds Use 'Border Security' To Justify Social Media Surveillance

With immigration a major concern that helped decide at least some voters' ballot choices, vetting those who enter the country, or who sponsor entry, is on the minds of many Americans fearful that the wrong people are getting in. But if you ask government officials to do something, you must know that they'll take the ball and run. In the case of "vetting"—performing background checks to make sure travelers, would-be immigrants, and their sponsors aren't terrorists or criminal—you end up with a surveillance system that targets those entering the country and, inevitably, their American friends and contacts.

Turning Fear Into a Surveillance Program

"Despite rebranding a federal program that surveils the social media activities of immigrants and foreign visitors to a more benign name, the government agreed to spend more than $100 million to continue monitoring people's online activities," reports Aaron Mackey of the Electronic Frontier Foundation (EFF).

The issue started early in the first Trump administration, when the incoming president responded to immigration concerns by building on earlier border policies with calls for "extreme vetting."

"In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles," President Trump noted in a January 27, 2017 executive order calling for a tougher screening process. "The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law."

Security is a legitimate concern. But as the Cato Institute's David J. Bier pointed out in 2018, even by the most generous (to federal officials') assumptions, "only 13 people — 2 percent of the 531 individuals convicted of terrorism offenses or killed while committing an offense since 9/11 — entered due to a vetting failure in the post‑9/​11 security system."

The program quickly became more than a demand for documentation from migrants' and visitors' home countries; the U.S. government wanted access to people's online lives, especially their social media accounts, to continuously monitor their statements and opinions. Private contractors seeking to participate in the program were expected to "analyze and apply techniques to exploit publicly available information, such as media, blogs, public hearings, conferences, academic websites, social media websites such as Twitter, Facebook, and Linkedln, radio, television, press, geospatial sources, internet sites, and specialized publications." The monitoring soon applied to millions of people entering legally (those crossing the border without documentation are another matter and a bigger headache).

Same Snooping, New Name

When Joe Biden won the presidency in 2020, Mackey notes, he kept the program in place. The biggest change is that the program was renamed the Visa Lifecycle Vetting Initiative (VLVI) at some point.

"We're disappointed that the Biden administration has decided to double down on this Trump-era policy of mass surveillance of visa applicants' social media," Carrie DeCell, senior staff attorney with the Knight First Amendment Institute commented in 2022.

"Social media vetting programs like VLVI are insidious in nature, since an individual's data can be retained indefinitely, shared broadly across multiple federal agencies, and could even be disclosed to foreign governments," warned David Strom of Avast, an online security company.

The Knight First Amendment Institute assisted two documentary filmmakers' associations who sued to end the program. The plaintiffs feared government officials peering through their correspondence with colleagues visiting from overseas and scrutinizing the opinions expressed in their communications and their work (arguments are scheduled for December)—and, maybe, sharing the results with partner agencies in other countries.

"Regardless of the name used, DHS's program raises significant free expression and First Amendment concerns because it chills the speech of those seeking to enter the United States and allows officials to target and punish them for expressing views they don't like," adds EFF's Mackey.

EFF also sued to get an inner glimpse at how the online monitoring is conducted.

Surveilling Travelers Means Spying on You

Given that communication is rarely a solitary activity, monitoring migrants and foreign travelers inevitably involves surveilling Americans, too. That's often the intention of surveillance efforts ostensibly aimed at foreign citizens in which their American correspondents are of equal or greater interest.

Section 702 authorization, for example, is supposed to be directed at "non-United States persons." Frequently, however, "the government acquires a substantial amount of U.S. persons' communications as well," the federal Privacy and Civil Liberties Oversight Board (PCLOB) cautioned in a 2023 report. Such spying on Americans "should not be understood as occurring infrequently or as an inconsequential part of the Section 702 program," the report added.

That's the case with agencies charged with border security as much as with the FBI and other agencies called out for abusing Section 702. Three years ago, Customs and Border Protection (CBP) was found to be running detailed background checks on critics, activists, and others in search of private information. Agents "routinely used the country's most sensitive databases to obtain the travel records and financial and personal information of journalists, government officials, congressional members and their staff, NGO workers and others," according to Jana Winter of Yahoo! News.

There's no reason to believe that yet another surveillance program administered by people who have repeatedly abused their power isn't following the same path as all that came before. Awareness that Big Brother is watching hangs over not just migrants and travelers, but their friends and contacts in this country.

"The knowledge that the government will be regularly scouring online statements to make admission or deportation determinations will unquestionably pressure both visa applicants and recipients – and the people with whom they communicate – to censor themselves online," the Center for Democracy and Technology objected to the program.

Border security isn't going away as a concern for a great many Americans. But it should come as no surprise that government officials are eager to turn public fears into blank checks for expanding their own intrusive power.

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