Why does the U.S. want to know the Internet history of applicants?

The story so far: On May 31, 2019, the U.S. Department of State introduced a change in online visa forms for immigrant (form DS-260) and non-immigrant visas (form DS-160) requiring applicants to register their social media handles over a five-year period. The newly released DS-160 and DS-260 forms ask, “Do you have a social media presence?” A drop-down menu provides a list of some 20 options, including Facebook, Instagram, Sina Weibo and Twitter. There is also a “NONE” option. Applicants are required to list their handles alone and not passwords. All sites will soon be listable according to an administration official who spoke to The Hill, a Washington DC-based newsletter. The policy does not cover those eligible for the visa waiver programme and those applying for diplomatic visas and certain categories of official visas.

How did it come about?

The policy is part of U.S. President Donald Trump’s intent to conduct “extreme vetting” of foreigners seeking admission into the U.S. In March 2017, Mr. Trump issued an Executive Order asking the administration to implement a programme that “shall include the development of a uniform baseline for screening and vetting standards and procedures for all immigrant programs.”

In September 2017, the Department of Homeland Security started including “social media handles, aliases, associated identifiable information, and search results” information in the files it keeps on each immigrant. The notice regarding this policy said those impacted would include Green Card holders and naturalised citizens. In March 2018, the State Department proposed a similar policy, but for all visa applicants — this is the policy now in effect. Earlier, only certain visa applicants identified for extra screening were required to provide such information. Asking visa applicants to volunteer social media history started during the Obama administration which was criticised for not catching Tashfeen Malik, one of those who carried out a mass-shooting in San Bernardino, California, in 2015. Malik had come to the U.S. on a K-1 fiancé visa, and had exchanged social media messages about jihad prior to her admission to the U.S.

How will it impact India?

Most Indians applying for U.S. visas will be covered by this policy. Over 955,000 non-immigrant visas (excluding A and G visas) and some 28,000 immigrant visas were issued to Indians in fiscal year 2018. So at least 10 lakh Indians — and these are just those who are successful in their visa applicants and not all applicants — will be directly impacted by the policy.

What lies ahead?

The new policy is expected to impact 14 million travellers to the U.S. and 700,000 immigrants worldwide according to the administration’s prior estimates. In some individual cases it is possible that the visa policy achieves what it is (ostensibly) supposed to — allow the gathering of social media information that results in the denial of a visa for an applicant who genuinely presents a security threat. However, the bluntness of the policy and its vast scope raise serious concerns around civil liberties including questions of arbitrariness, mass surveillance, privacy, and the stifling of free speech.

First, it is not unusual for an individual to not recall all their social media handles over a five-year period. Consequently, even if acting in good faith, it is entirely possible for individuals to provide an incomplete social media history. This could give consular officers grounds for denying a visa.

Second, there is a significant degree of discretion involved in determining what constitutes a visa-disqualifying social media post and this could stifle free speech. For instance, is criticising the President of the United States or posting memes about him (there are plenty of those on social media these days) grounds for visa denial? What about media professionals? Is criticising U.S. foreign policy ground for not granting someone a visa?

Third, one can expect processing delays with visas as social media information of applicants is checked. It is possible that individuals impacted by the policy will bring cases against the U.S. government on grounds of privacy or on grounds of visa delays. The strength of these cases depends on a number of factors including whether they are brought by Green Card holders and naturalised citizens (who were impacted by the September 2017 policy not the May 31 one) or non-immigrants. The courts could examine the intent of the U.S. government’s policy and ask whether it has discriminatory intent.