I heard about the United States Custom Border Agency had been asking Canadians for access to their Facebook accounts and cellphones when they arrived at the border to join the women’s march on Washington the day after Donald Trump’s inauguration. When some Canadians refuse to surrender their information, they were denied entry into the US and turned away (this is in addition to those who were refused entry because they were going to the march). I was appalled to hear this, and appalled at the invasion of privacy and violation of civil and human rights – and in 2017! I happened to be talking to a member of my family who is American, and he did not first believe me when I told him that this happened. He could not conceive of it happening in his America.
Trump implemented a new executive order on immigration and refugees, barring citizens of seven Muslim-majority countries from entering the United States for the next 90 days, suspending the admission of all refugees for 120 days, and banning Syrians indefinitely. Around January 30, 2017, sources told CNN that “Trump administration officials are discussing the possibility of asking foreign visitors to disclose all websites and social media sites they visit, and to share the contacts in their cell phones. If the foreign visitor declines to share such information, he or she could be denied entry.” Sources told CNN that “the idea is just in the preliminary discussion level. How such a policy would be implemented remains under discussion.”
The aim is to “identify potential threats entering the U.S.” The idea of checking foreigners’ social media accounts draws on a supposed history of terror attacks where the attacker had previously expressed extremist views on platforms like Facebook and Twitter.
According to CNN, White House press secretary Sean Spicer did not respond to a request for comment.
However, Politico reported in December 2016, that the US government had quietly begun asking that foreign visitors to provide their social media accounts voluntarily.
On December 20, 2016, a new visa waiver program began presenting foreign travelers to the United States an “optional” request for information about their “online presence.” When filling out digital customs forms, foreign travelers now see a request for information about their social media accounts.
Information about Facebook, Twitter, Instagram, LinkedIn, and YouTube accounts are included in the drop-down menu of options.
Apparently, the request for social media information only shows up in the Electronic System for Travel Authorization (ESTA). The ESTA, along with a paper form, is the process foreigners from 38 countries must complete to pass through US borders without a visa.
It’s yet unclear how many travelers to the US have provided their social media information while passing through customs.
This new vetting is both extreme and invasive.
Why did we not react to this before? Why did nobody complain about this policy and potential violation of personal information, nor bring it to the wider attention of the media or the Office of the Privacy Commissioner of Canada?
It seems that the Center for Democracy and Technology, the Brennan Center for Justice, the Electronic Frontier Foundation, the American Civil Liberties Union, consumer advocates and Internet associations did try to bring it to the attention of the previous administration in relation to privacy and human rights, but nothing was done. They even provided written comments against the enactment of such a proposal, but were unsuccessful in both drawing attention to the new policy and changing it.
Specifically, it was stated in those comments that:
“It would be a series of small steps for CBP to require all those seeking to enter the U.S.—both foreign visitors and U.S. citizens and residents returning home—to disclose their social media handles to investigate whether they might have become a threat to homeland security while abroad. Or CBP could subject both foreign visitors and U.S. persons to invasive device searches at ports of entry with the intent of easily accessing any and all cloud data; CBP could then access both public and private online data—not just social media content and contacts that may or may not be public (e.g., by perusing a smartphone’s Facebook app), but also other private communications and sensitive information such as health or financial status.”
According to Politico, “Opponents also worry that the U.S. change will spark similar moves by other countries.” Also, it is a concern that a foreigner who has a language barrier will provide the information thinking it is mandatory to do so.
Well, these worries are already being realized.
On January 25, 2017, it was reported by Electronic Frontier Foundation that,
“The Council on American-Islamic Relations (CAIR) recently filed complaints against U.S Customs and Border Protection (CBP) for, in part, demanding social media information from Muslim American citizens returning home from traveling abroad. According to CAIR, CBP accessed public posts by demanding social media handles, and potentially accessed private posts by demanding cell phone passcodes and perusing social media apps. And border agents allegedly physically abused one man who refused to hand over his unlocked phone.”
“We believe that the CBP practices against U.S. citizens alleged by CAIR violate the Constitution. Searching through Americans’ social media data and personal devices intrudes upon both First and Fourth Amendment rights.”
The Electronic Frontier Foundation in their understanding of the violation, further states, and I agree, that “A digital device is not an ordinary “effect” akin to a piece of luggage or wallet, but rather is a portal into an individual’s entire life, much of which is online.”
Policies and practices at the US border should not include collecting or monitoring social media activity or other cloud data, particularly that which is protected by privacy settings and therefore not publicly viewable. Read more on the privacy issues created by Trumps executive order in David Canton’s post, Michael Geist post and the post on Open Media.
This is not routine practice and should not be allowed in the absence of individualized suspicion and a search warrant, which practice is already established in law.
People have a right to communicate to a selected network of peers, friends and family without the US government surveying their activity as a condition of entry into the country, and law-abiding, non-threatening people do not deserve to be treated as criminals.