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.

“The court’s decision is disappointing, but it’s not the end of this case. The social media disclosure visa registration requirement is the linchpin of a far-reaching and unconstitutional surveillance regime, which the Trump administration is now seeking to expand,” said Carrie DeCell, a senior staff attorney at the Knight Institute. “The government has no legitimate interest in the dragnet collection of this  expressive information, which officials internally acknowledge adds no value to the visa vetting process.”

In today’s opinion, the appeals court concluded that the film organizations had not shown that a decision in their favor would redress their harms, because their members and partners might still refrain from speaking online or traveling to the United States even absent the dragnet disclosure requirement. Instead of affirming the district court’s dismissal, however, the appeals court remanded the case, allowing the organizations a chance to seek leave to amend their complaint and make that showing.  

The State Department rules, which took effect in May 2019, apply to an estimated 14.7 million visa applicants each year, requiring them to disclose all social media handles—including pseudonyms—that they’ve used on any of 20 platforms in 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.

The plaintiffs in the lawsuit are Doc Society, a non-profit organization committed to supporting documentary filmmakers and connecting them with global audiences, and the International Documentary Association, a non-profit, membership-based association of documentary filmmakers. Their members and partners include internationally acclaimed documentary filmmakers who come from a variety of countries and represent a range of social and political perspectives. Some use pseudonyms as their social media handles to protect themselves and their families from reprisal by repressive governments or private actors.

The lawsuit challenged both the disclosure requirement and related retention and dissemination policies. The suit contended that the disclosure requirement violates the First Amendment because the requirement is not narrowly tailored to the government’s immigration enforcement and national security interests, and that it violates the Administrative Procedure Act because the collection is not “necessary” to establishing visa applicants’ identity or visa eligibility, and because the requirement is arbitrary and capricious.

“Requiring registration of the social media handles of everyone who applies for a visa makes it all too easy to target viewpoints that a particular administration disfavors,” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “This program is unconstitutional and uniquely open to abuse as we have seen in recent attempts to exclude people whose views can somehow be characterized as hostile to the United States. It must be stopped.”

Read today’s decision in Doc Society v. Rubio here.

Read more about the case here.

Lawyers on the case include Jameel Jaffer, Carrie DeCell, Anna Diakun, Katie Fallow, and Theo Tamayo (Knight Institute); Faiza Patel, Rachel Levinson-Waldman, and Emile Ayoub (Brennan Center); and Joshua Polster, Evan Gilbert, and Zoe Rubin (Simpson Thacher).

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org. 

“The court’s decision is disappointing, and we’re considering an appeal,” said Carrie DeCell, a senior staff attorney at the Knight Institute. “The visa registration requirement is the linchpin of a far-reaching and unconstitutional surveillance regime in which the government monitors the online activities of millions of visa applicants, and continues to monitor them even after they’ve entered the United States. The government has no legitimate interest in collecting this kind of sensitive information, and the First Amendment doesn’t permit it to do so.”

The State Department rules, which took effect in May 2019, apply to an estimated 14.7 million visa applicants each year, requiring them to register all social media handles—including pseudonyms—that they’ve used on any of 20 platforms in 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.

The plaintiffs in the lawsuit are Doc Society, a non-profit organization committed to supporting documentary filmmakers and connecting them with global audiences, and the International Documentary Association, a non-profit, membership-based association of documentary filmmakers. Their members and partners include internationally acclaimed documentary filmmakers who come from a variety of countries and represent a range of social and political perspectives. Some use pseudonyms as their social media handles to protect themselves and their families from reprisal by repressive governments or private actors.

The lawsuit challenges both the registration requirement and related retention and dissemination policies. The suit contends that the registration requirement violates the First Amendment because the requirement is not narrowly tailored to the government’s immigration enforcement and national security interests, and that it violates the Administrative Procedure Act because the collection is not “necessary” to establishing visa applicants’ identity or visa eligibility, and because the requirement is arbitrary and capricious.

“Even the government’s own tests haven’t produced any evidence that social media screening works to reliably identify fraud or national security threats,” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “And that isn’t surprising—officials are looking at posts in multiple languages, and are trying to interpret jokes, slang, and sarcasm in digital spaces where people communicate differently than they would in real life.”

Read the decision here.

Lawyers on the case include Jameel Jaffer, Carrie DeCell, Anna Diakun, and Katie Fallow (Knight Institute); Faiza Patel, Rachel Levinson-Waldman, and Emile Ayoub (Brennan Center); and Joshua Polster and Evan Gilbert (Simpson Thacher).

ABOUT THE BRENNAN CENTER FOR JUSTICE
The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize and — when necessary — defend our country's systems of democracy and justice.

ABOUT THE KNIGHT FIRST AMENDMENT INSTITUTE
The Knight First Amendment Institute at Columbia University defends the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. It promotes a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.

ABOUT SIMPSON THACHER
Simpson Thacher & Bartlett LLP (www.simpsonthacher.com) is one of the world’s leading international law firms. The Firm was established in 1884 and has more than 1,000 lawyers. Headquartered in New York with offices in Beijing, Brussels, Hong Kong, Houston, London, Los Angeles, Palo Alto, São Paulo, Tokyo and Washington, D.C., the Firm provides coordinated legal advice and transactional capability to clients around the globe.

“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,” said Carrie DeCell, senior staff attorney with the Knight First Amendment Institute. “The requirement is the linchpin of a far-reaching and unconstitutional regime that permits the government to monitor the online activities of millions of visa applicants and to continue monitoring them even after they’ve entered the United States. The government has no legitimate interest in collecting this kind of sensitive information on this immense scale, and the First Amendment doesn’t permit it to do so.”

The State Department rules, which took effect in May 2019, apply to millions of visa applicants each year and require them to register all social media handles—including pseudonyms—that they’ve used on any of 20 platforms in 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.

The plaintiffs in the lawsuit are Doc Society, a non-profit organization committed to supporting documentary filmmakers and connecting them with global audiences, and the International Documentary Association, a non-profit, membership-based association of documentary filmmakers. Their members and partners include internationally acclaimed documentary filmmakers who come from a variety of countries and represent a range of social and political perspectives. Some use pseudonyms as their social media handles to protect themselves and their families from reprisal by repressive governments or private actors.

The lawsuit challenges both the registration requirement and related retention and dissemination policies. The suit contends that the registration requirement violates the First Amendment because the requirement is not narrowly tailored to the government’s immigration enforcement and national security interests, and that it violates the Administrative Procedure Act because the collection is not “necessary” to establishing visa applicants’ identity or visa eligibility, and because the requirement is arbitrary and capricious.

“Just last year, the White House regulatory office rejected a practically identical proposal from the Department of Homeland Security to collect social media handles on its travel and immigration forms, noting that its usefulness had not been demonstrated and that the Muslim ban—the basis for it—had been repealed,” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “The same is true of the State Department policy, which establishes a digital screening infrastructure that makes it easier to systematically profile. It needs to go.”

Read today’s notice here. 

Read more about the case here. 

Lawyers on the case include Jameel Jaffer, Katie Fallow, Carrie DeCell, Anna Diakun, and Evan Welber Falcón (Knight Institute); Faiza Patel, Rachel Levinson-Waldman, and Harsha Panduranga (Brennan Center); and Joshua Polster and Evan Gilbert (Simpson Thacher).

The brief argues that the social media registration requirement and connected policies “unquestionably chill a vast quantity of speech” and harm the First Amendment rights of their users, particularly those who use pseudonymous handles to discuss political, controversial, or otherwise sensitive issues on the platforms.

"[M]any speakers use Internet forums like Reddit and Twitter to make statements that might provoke criticism or retaliation from their communities. Some employ anonymous Twitter accounts to convey disfavored political views or other information that could expose them to social stigma or loss of employment,” the brief notes. On Twitter alone, at least a quarter of accounts do not disclose a person’s full name, and many other accounts use pseudonyms. Twitter and Reddit policies clearly protect speakers’ anonymity.

Concerns that some users may suffer retaliation because of the requirement “are particularly acute now, as governments around the world have cracked down on online speakers who question authorities’ handling of the COVID-19 health crisis,” the brief states.

In a statement, Jessica Herrera-Flanigan, Twitter Vice President, Public Policy and Philanthropy, for the Americas, said: “Defending and respecting the voices of the people who use our service is one of our core values at Twitter. This value is a two-part commitment to freedom of expression and privacy. We believe the government's policy requiring visa applicants to disclose their social media handles infringes both of those rights and we are proud to lend our support on these critical legal issues.”

Reddit's VP & General Counsel Ben Lee said: "Reddit, since its inception, has held user privacy as a foundational value. With this brief we intend to defend not just our users but all users who are determined to maintain their privacy on the internet from intrusive overreach by the government."

Read the social media companies’ brief here.

The Electronic Frontier Foundation and faith-based organizations also filed amicus briefs yesterday supporting the lawsuit, addressing, respectively, how much information the government can glean from social media and the impact of the registration requirement on religious minorities around the world. Read the briefs here and here.

Doc Society and the International Documentary Association, U.S.-based documentary film organizations, sued the State Department and the Department of Homeland Security last December. The State Department’s social media registration requirement, which took effect a year ago, applies to an estimated 14.7 million visa applicants each year, compelling them to disclose all social media handles that they’ve used on any of 20 platforms, including Twitter and Reddit, in the last 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.

The suit argues that the social media registration requirement forces plaintiffs’ foreign members and partners to choose between engaging in constitutionally protected speech and association and remaining in or traveling to the United States, frustrating plaintiffs’ ability to foster the cross-border cultural exchange at the core of their organization missions and depriving their American members and partners of opportunities to engage with their foreign counterparts. In April, the government filed a motion to dismiss the lawsuit. On Wednesday, the Knight Institute, the Brennan Center, and Simpson Thacher & Bartlett LLP filed a response. Read the brief here. 

For more information, contact: Lorraine Kenny, Communications Director, Knight First Amendment Institute, lorraine.kenny@knightcolumbia.org. 

“The registration requirement is the linchpin of a far-reaching and unconstitutional surveillance regime that permits the government to monitor the online activities of millions of visa applicants, and to continue monitoring them even after they’ve entered the United States,” said Jameel Jaffer, Executive Director of the Knight Institute. “The government simply has no legitimate interest in collecting this kind of sensitive information on this immense scale, and the First Amendment doesn’t permit it to do so.”

The State Department rules, which took effect in May, apply to an estimated 14.7 million visa applicants each year, requiring them to register all social media handles—including pseudonyms—that they’ve used on any of 20 platforms in 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.

The plaintiffs in the lawsuit are Doc Society, a non-profit organization committed to supporting documentary filmmakers and connecting them with global audiences, and the International Documentary Association, a non-profit, membership-based association of documentary filmmakers. Their members and partners include internationally acclaimed documentary filmmakers who come from a variety of countries and represent a range of social and political perspectives. Some use pseudonyms as their social media handles to protect themselves and their families from reprisal by repressive governments or private actors.

“We regularly work with filmmakers for whom the ability to maintain anonymity online can be a matter of life and death,” said Jess Search, Director of Doc Society Inc. “As an organization committed to filmmaker safety, we believe the registration requirement is a deeply troubling and oppressive development, forcing filmmakers to choose between free online expression and their own security. The U.S. government should be championing freedom of expression, not taking actions which will inhibit it.”

“Social media screening has already deterred some of our members from applying for visas, preventing them from participating in recent U.S. film festivals and limiting their ability to tell their stories to U.S. audiences,” said Simon Kilmurry, Executive Director of the International Documentary Association. “In our increasingly global world, the meaningful exchange of ideas and perspectives should be celebrated, not stifled.”

The lawsuit challenges both the registration requirement and related retention and dissemination policies. The suit contends that the registration requirement violates the First Amendment because the requirement is not narrowly tailored to the government’s immigration enforcement and national security interests, and that it violates the Administrative Procedure Act because the collection is not “necessary” to establishing visa applicants’ identity or visa eligibility, and because the requirement is arbitrary and capricious.

“Even the government’s own tests haven’t produced any evidence that social media screening works to reliably identify fraud or national security threats,” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “And that isn’t surprising—officials are looking at posts in thousands of languages, and are trying to interpret jokes, slang, and sarcasm in digital spaces where people communicate differently than they would in real life.”

The plaintiffs ask the Court to declare the registration requirement unlawful and to halt its enforcement.

Read the complaint here.

Lawyers on the case include Jameel Jaffer, Katie Fallow, Carrie DeCell, Anna Diakun, and Leena Charlton (Knight Institute); Faiza Patel, Rachel Levinson-Waldman, and Harsha Panduranga (Brennan Center); and Paul Curnin and Sarah Eichenberger (Simpson Thacher).

About the Brennan Center for Justice 

The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize and — when necessary — defend our country's systems of democracy and justice.

About the Knight First Amendment Institute

The Knight First Amendment Institute defends the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government. 

About Simpson Thacher 

Simpson Thacher & Bartlett LLP is one of the world’s leading international law firms. The Firm was established in 1884 and has more than 900 lawyers. Headquartered in New York with offices in Beijing, Hong Kong, Houston, London, Los Angeles, Palo Alto, São Paulo, Tokyo and Washington, D.C., the Firm provides coordinated legal advice and transactional capability to clients around the globe.

For more information, contact Lorraine Kenny, Knight First Amendment Institute, lorraine.kenny@knightcolumbia.org, 646-745-8510; Mireya Navarro, Brennan Center for Justice, mireya.navarro@nyu.edu, 646-925-8760.

* * *

President Biden revoked the Trump administration's Muslim ban shortly after he took office. Yet some of the policies established in connection with the ban remain in place, including a requirement that U.S. visa applicants register their social media handles with the government. The Biden administration has said it's reviewing those policies; what's at stake in that review?

Carrie DeCell

That's right. One of those policies is the State Department requirement that visa applicants register all the social media handles that they’ve used on any of 20 specified platforms in the five years preceding their applications. This requirement is the linchpin of a surveillance system that allows the government to scrutinize visa applicants' expressive and associational activities online even after they enter the United States. That information is then indefinitely stored in government databases, including at the Department of Homeland Security, and shared widely among other federal agencies. It can be disseminated in some circumstances, even to foreign governments. This is a social media dragnet that has a dramatic chilling effect on the speech and associations of millions of people around the world.

In 2019, you brought a lawsuit over the program on behalf of two U.S.-based documentary film organizations. Why sue on behalf of documentary filmmakers?

We sued on behalf of Doc Society and the International Documentary Association, two leading U.S.-based documentary film organizations. They routinely collaborate with filmmakers and other partners from around the world and, in doing so, rely on social media to communicate with their members and promote their work, as well as to research topics for new programs that the organizations run. As a result of the registration requirement, many of the organizations’ members and partners are no longer willing to speak freely on social media or to apply for visas to come to the United States, whether to work here, see their family members here, or—importantly for IDA and Doc Society—attend conferences, film screenings, workshops, and other events that these organizations host here. That has a dramatic impact on the organizations’ ability to carry out their missions.

What are the lawsuit's concerns specifically around issues like the loss of user anonymity and self-censorship? 

This requirement is especially burdensome for visa applicants who use pseudonyms on social media, many who do so to protect themselves from retaliation or reprisal by government or private actors. These include dissidents from around the world, as well as reporters or investigators who are going up against big companies or are working on big stories that might involve dangerous actors. The registration requirement effectively requires all of these people to surrender their anonymity and risk that their identities will be shared with the government or the private actors that they fear, just in order to apply for entry into the United States. 

At the end of the day, if people are forced to disclose their pseudonymous social media handles and give up their right to online anonymity, they may just decide not to come to the United States because they're too concerned about this information ending up in the wrong hands. Alternatively, they may still need to come to the United States and, as a result, will just stop using social media in order to protect themselves from whatever reprisals they might otherwise suffer. That really gets to the self-censorship concern. 

Beyond that, there's a real question as to whether or not the government can even effectively interpret the communications that it’s surveilling on social media. The government has a history of misinterpreting speech posted on social media. The Brennan Center (our co-counsel on this case) has done a really good job of documenting these examples. 

How do you weigh those privacy and free speech rights against national security concerns? 

The government hasn’t explained with any specificity why it needs to conduct this kind of social media surveillance—it’s just gestured abstractly at national security and the need to adjudicate visa applications. When we’re talking about the rights of individuals to speak freely online—and the rights of U.S. citizens and residents to hear that speech—we need a much closer examination of the government’s interests and much more serious consideration of the First Amendment implications.

It’s worth noting that no one has challenged the government's authority to conduct suspicion-based social media surveillance—as opposed to the dragnet surveillance at issue in our case. If the State Department has good cause to look into a particular applicant further, it can do that. What it shouldn’t be doing is collecting social media handles even when there’s no individualized need for it. 

What we’re taking issue with is this dragnet program where 14.7 million people—in the State Department’s own estimate—are being subject to effectively limitless social media surveillance. The surveillance can track back many, many years, and it can drag forward indefinitely. It’s the expansive nature of this particular requirement and the data that the government is collecting that strikes us as inherently out of balance with the First Amendment rights at stake.

The lawsuit also argues that the policy violates the Administrative Procedure Act. Could you explain that, and also explain why the Institute believes collection of social media handles isn't necessary to establish visa applicants' identity or visa eligibility.

The Administrative Procedure Act [APA] requires that agency regulations conform with statutory law. The statute that gives the State Department authority to collect this kind of information from visa applicants is the Immigration and Nationality Act. And that statute tells the State Department that it can collect information as “necessary” to determine visa eligibility, or to identify any threats to national security, et cetera.  The APA also requires agencies to adopt evidence-based regulations and have good reasons for imposing regulatory burdens. 

Here, there’s no evidence that social media surveillance, especially this kind of dragnet social media surveillance, is an effective tool in identifying national security threats or determining visa eligibility. Different government agencies have run pilot programs in the past to try to establish that this is a useful tool, and those pilot programs have failed to establish that it is. So it’s not even clear that this surveillance is useful; it’s certainly not clear that it’s necessary.

Could you also talk about how listeners' rights figure into all of this since that's one of the First Amendment claims in the lawsuit?

The two documentary film organizations that we represent want to invite filmmakers from around the world to come speak to U.S. audiences, and also want to engage with those filmmakers and other partners over social media—to hear the stories that they have to share both online and in-person. The Supreme Court has recognized for a long time that people in the United States have a right to hear from people from outside the United States, and that that’s a core component of the freedom of speech under the First Amendment, the freedom to receive ideas from folks from outside the United States.

Here, the chilling effect of the registration requirement impacts speakers as well as listeners. The registration requirement deters people who decide to apply for U.S. visas from freely sharing their views and engaging with others on social media, for fear that their speech will be misinterpreted or used against them in some way or circulated to their home governments or other actors who could use it against them. At the same time, it also deters other people from even applying for a U.S. visa to come to the United States in the first place, because they don't want to have to subject their online speech to this U.S. government surveillance. In either case, we in the United States are deprived of opportunities to hear from these people either online or in person. 

Could this border-based security measure extend to U.S. citizens themselves, especially journalists who might be questioned or detained in the name of national security based on the social media information the government obtains during re-entry? And wasn't there, in fact, a complaint filed by a number of U.S. citizens challenging searches of their cell phones and other electronic devices by border agents?

Yes, that’s right. The government has claimed the authority to conduct suspicionless searches of U.S. citizens and other travelers’  electronic devices under what’s called the border search exception to the Fourth Amendment’s warrant requirement. Through these searches, they have collected individual social media handles, so the upshot is the same. We haven’t seen any effort by the government to have all U.S. citizens register their social media handles with the government, and I think courts would view that requirement as clearly unconstitutional right off the bat. However, any single person who’s crossing an international border could be pulled aside and subjected to one of these suspicionless searches. The Supreme Court recently declined to hear the case that you referenced, Merchant v. Mayorkas, on appeal from a First Circuit decision. As it currently stands, the government can still conduct these searches of any of us crossing the border or coming through an international airport, or driving across from Canada or Mexico. They can pull us aside and say, “Turn over your cell phone or your laptop, and unlock it for me. I’m going to scroll through and see what I can find there.”

Oftentimes, the government, as part of the searches, does collect social media handles. We know this because the Knight Institute has been, for a long time, in litigation over a FOIA [Freedom of Information Act] request for documents relating to the government’s authority to search devices at the border. We’ve collected thousands of pages of search reports where we can quite clearly see that border agents list out individuals’ Facebook handles, Instagram handles, Twitter handles, YouTube, whatever. Then those search reports are maintained in government databases that the government can come back to and use to see what you’ve been saying on social media lately. 

Where do the government's visa vetting program and our legal challenge stand now? 

The Biden administration is still reviewing the social media registration requirement. The case that we’re currently litigating on behalf of Doc Society and IDA is now stayed pending the completion of that review. The court has asked the government for updates on the status of that review, with the expectation that it will impact whether or not the social media registration requirement remains in place going forward. But for now the requirement is still in effect, and the data that the State Department is collecting is presumably still being kept in State Department’s and Department of Homeland Security’s databases.

This kind of surveillance is really troubling. In the Civil Rights era, the Supreme Court recognized that requiring people to register their beliefs, their associations, their speech with the government violated their First Amendment rights. In those days, the government would have had to wiretap millions of homes and offices, meeting houses, and other locations to collect the kind of information that it can now Hoover up all at once from the comfort of an office cubicle. It’s just the ease with which the government can collect and review massive amounts of expressive data from online sources. It’s giving the government an ever-increasing appetite for that data, despite the ever-present impacts of that kind of surveillance on First Amendment rights. 

Visit our case page for the latest updates and more on Doc Society v. Blinken. Knight Institute Research Intern Bilal Choudhry contributed to this article. 

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.

OIRA’s decision comes amidst a broader Biden administration review of the State Department’s and DHS’ collection and use of the social media information, which is set to wrap up by May 20. We’re hopeful that OIRA’s rejection of the DHS request is a sign that the administration will do away with social media registration requirements altogether and conclude that any speculative benefits of social media surveillance cannot justify the enormous costs to freedom of speech, individual privacy, and robust cultural exchange.

As my colleague Larry Siems wrote on Wednesday, President Biden has rescinded a number of Trump administration policies that threatened or needlessly undermined First Amendment freedoms. But even as President Biden took these steps, he also signaled how much there is left to do. One item on the agenda: reviewing how agencies use visa applicants’ social media handles when deciding whether to allow them entry into the United States.

Since 2019, the State Department has engaged in the mass collection of travelers’ social media information, demanding that everyone applying for a U.S. visa hand over their handles on platforms like Facebook, Twitter, and YouTube. In December of that year, the Knight Institute and partners at the Brennan Center and Simpson Thacher filed a lawsuit on behalf of two documentary film organizations challenging this requirement on First Amendment grounds. We argued that the requirement would chill visa applicants’ speech and expression, invade their privacy, and deter filmmakers and others from traveling to the United States. While the lawsuit was pending, the Trump administration sought to expand the registration requirement even further.  

But on Wednesday, President Biden revoked the discriminatory executive order that gave rise to this policy, calling it “a moral blight that has dulled the power of our example the world over.” Encouragingly, he also instructed the Secretaries of State and Homeland Security to review the agencies’ use of the social media information they’ve collected.

We’re optimistic that this review will result, eventually, in the State Department rescinding the registration requirement. The requirement imposes high costs on freedom of expression, individual privacy, and the vision of the United States as a hub of debate and cultural exchange. And the requirement is entirely unnecessary, because, even absent the requirement, nothing will preclude consular officials from asking individual applicants for social media information when there are good reasons for doing so. This vestige of former President Trump’s racist and oppressive immigration policies should share the same fate as the executive order that gave rise to it, and we’re hopeful that the Biden administration will agree.