In a terse court filing today, the Biden administration indicated that it would continue to defend a controversial Trump administration rule that requires millions of visa applicants each year to register their social media handles with the U.S. government. The registration requirement, which stems from the Muslim ban, is the subject of an ongoing First Amendment challenge filed by the Knight Institute, the Brennan Center, and the law firm Simpson Thacher on behalf of two documentary film organizations, Doc Society and the International Documentary Association.
The social media registration requirement has rotten roots. The State Department adopted it following President Trump’s order to develop an “extreme vetting” program in connection with the Muslim ban. Since 2019, the State Department has required nearly everyone applying for a U.S. visa to hand over all handles they have used—including pseudonyms—on platforms like Facebook, Twitter, and YouTube over the preceding five years. The State Department and the Department of Homeland Security can retain the collected information indefinitely, share it broadly among federal agencies, and disclose it, in some circumstances, to foreign governments. In December 2019, we sued on behalf of Doc Society and IDA to challenge the registration requirement on First Amendment grounds. We argued that the requirement chilled visa applicants’ online speech and association and deterred filmmakers from traveling to the United States—ultimately depriving U.S. audiences of opportunities to engage with filmmakers from around the world—all while proving largely useless in identifying national security threats or determining visa eligibility.
Immediately after taking office, President Biden loudly hinted that his administration might seek to weed out the Trump-era registration requirement. As he revoked the Muslim ban with appropriate condemnation, he instructed the secretaries of State and Homeland Security to review the agencies’ use of social media handles in the visa vetting process. The court stayed the documentary film organizations’ lawsuit pending the completion of that review, anticipating that it might moot the case. Apparently, it has not—at least, not yet. While the Biden administration may still move to rescind the registration requirement, its court filing today indicated that it did not anticipate doing so.
This development is particularly surprising—and disappointing—given the administration’s review of the registration requirement, as well as its recent rejection of a Department of Homeland Security proposal to extend the same requirement to millions more people each year. The Office of Information and Regulatory Affairs correctly concluded that the Department of Homeland Security had failed to demonstrate the requirement’s “practical utility” and to justify its “monetary and social” costs. The State Department’s registration requirement is equally unjustified, and the administration should have seized the opportunity to say so. Instead, it has revealed nothing about the outcome of its review. It is crucial that the administration release the report culminating that review, especially in light of its decision to continue defending the registration requirement in court. And the court should invalidate the registration requirement, which is as rotten as its roots.
Update: On June 3, 2021, the Knight Institute filed a FOIA request seeking the prompt release of the Biden administration’s review of the State Department’s and Department of Homeland Securities’ use of social media handles in the visa vetting process.
Carrie DeCell is a Staff Attorney at the Knight First Amendment Institute.