Filmmakers Sue to Shield Visitors to U.S. From Social Media Vetting

A filmmaker working on a documentary that’s critical of U.S. policies. A writer who operates a pseudonymous Twitter account to evade an authoritarian regime in their home country. An activist who uses Facebook to organize protests at the U.S.-Mexico border.

These are the kinds of people who might not want U.S. immigration agents poring over their social media profiles before deciding whether they should be allowed into the country. Yet that’s exactly what the State Department now requires as part of the Trump administration’s “extreme vetting” of millions of visa applicants. As of May, people who need a visa to enter the U.S. have to disclose any social media handles they’ve used over the past five years on 20 platforms, from Instagram and Twitter to YouTube and Weibo (the Chinese microblogging service). If they don’t, their visas could be denied.

Two U.S.-based documentary film organizations filed suit on Thursday in federal court in Washington, D.C. to challenge the policy, arguing that it will have a chilling effect on the filmmakers they work with. Along with the Knight First Amendment Institute at Columbia University and the Brennan Center for Justice at New York University Law School, the International Documentary Association and Doc Society are suing the State Department and the Department of Homeland Security because their international members are “concerned that their political views will be used against them during the visa process.”

“They self-censor to avoid being associated with controversial ideas or sensitive topics,” the complaint states. The nonprofit groups surveyed over 100 international filmmakers and found that “a significant majority said it would chill their speech online.” Some reported that they were reconsidering travel to the U.S. or trying to scrub online postings in light of the new requirements. Those coming from countries with repressive governments or from war zones were especially concerned, since some of them operate anonymously online to more freely share information and opinions. Once these people disclose their true identity to U.S. officials, they fear, that information could end up in hands of hostile governments or groups.

People who need a visa to enter the U.S. have to disclose any social media handles they’ve used over the past five years on 20 platforms.

Oliver Rivers, managing director of Doc Society, described two distinct harms created by the Trump administration’s policies on social media and visa applications. “One is the impact on non-U.S. citizens, non-U.S. filmmakers,” he told The Intercept. The other is on U.S.-based individuals and organizations like Doc Society and IDA that are “wanting to engage with those non-U.S. citizens.”

Those who live and work abroad using anonymous social media accounts are left with a difficult set of questions, Rivers said: “Do I disclose my identity? Do I lie about my identity? Or do I not come to the United States?” The situation is also challenging for those who use their real name online, Rivers added, and are left to question how their posts might read to the “hostile bureaucratic eye” of an American border official.

The State Department and DHS could not immediately be reached for comment.

According to the complaint, one IDA member, who lives in the Midwest, said they “reviewed three years of social media activity and deleted posts criticizing the current U.S. administration in order to avoid any delays on future visa applications.” Another said that she would no longer post original content online due to similar concerns (most of the filmmakers surveyed did not want to be named, fearing reprisals).

The groups called the requirement “the cornerstone of a far-reaching digital surveillance regime.”

Such self-censorship could play out on a massive scale, the groups fear; the State Department estimates that 14.7 million people each year will have to disclose their social media accounts. In their suit, the groups called the requirement “the cornerstone of a far-reaching digital surveillance regime that enables the U.S. government to monitor visa applicants’ constitutionally protected speech and associations not just at the time they apply for visas, but even after they enter the United States.” Carrie DeCell, a staff attorney at the Knight First Amendment Institute, said that the government could access that data and monitor speech online “years into the future.”

The U.S. security state has long been interested in online activities of travelers. In 2016, during the Obama administration, U.S. Customs and Border Protection started asking for social media handles from travelers who fall under the visa waiver program, including citizens of many European countries. (At one point, CBP even contemplated requesting travelers’ account passwords.) That information was voluntary, but it still raised free speech concerns. DHS has also sought social media information for automated threat screening, contracting with firms that slurp up online postings. All of this, the new complaint points out, is despite the fact that even many in government have questioned the effectiveness of programs scrutinizing social media to identify national security threats.

The complaint underlines “the difficulties of interpreting social media information across different languages, customs, and cultural norms.” Indeed, ProPublica reported recently that U.S. Citizenship and Immigration Services sometimes relied on Google Translate to evaluate refugee applications. Under the new State Department rules, a mistranslation or misunderstanding of an offhand social media comment could ruin someone’s chance for a visa.

This summer, a Palestinian teenager on his way to begin classes at Harvard was turned back at Boston Logan International Airport and deported, he told the Harvard Crimson, after a confrontation with border officials over political views expressed by friends on social media. There have also been many reports of U.S. citizens who have had their phones searched by CBP or been pressured to give up account information.

Simon Kilmurry, executive director of the IDA, said that his organization was aware of several incidents in which filmmakers have had trouble obtaining U.S. visas apparently because of the nature of their work. Blocking those voices doesn’t just hurt the filmmakers, the lawsuit argues, but also deprives U.S. audiences of diverse, enlightening perspectives. “We’ve seen this boom in documentary filmmaking, and it’s become a way for people to engage with the world and the issues it’s facing. Whether it’s war and peace or climate change or immigration, these stories have a real value in enriching the dialogue,” said Kilmurry. “And to not hear from those filmmakers directly is very troubling, to say the least.”

Rivers, the Doc Society managing director, said the average citizen might reasonably ask, “What does feature documentary filmmaking got to do with me?” But at its heart, he said, the case was about “bureaucratic intervention in freedom of speech — and it’s being done in a particularly insidious way.”

“It’s not just a small requirement on a visa form,” he added. “It’s very, very clear encroaching bureaucratic oppression, and I think you have to make a stand when you see something like this.”