The next time someone visits the US, customs may ask to see their passport, their Facebook feed, and all of their Instagram posts. The United States maintains a list of 42 countries whose citizens are allowed to enter without a visa, but visitors from those nations may soon have to provide five years' worth of their social media history in order to gain entry.
US Customs and Border Patrol published a notice in the Federal Register Wednesday of plans to make serious data collection changes to the Visa Waiver Program. The social media screening requirement is the most noticeable one.
The change affects countries whose citizens are eligible to get an Electronic System for Travel Authorization (ESTA) pass to visit the US for up to 90 days for business and leisure travel, which includes citizens of countries like the United Kingdom, Germany, France, Japan and other traditionally close US allies. The customs agency justified the move in its Federal Register notice by pointing to a January executive order from the Trump administration designed to reduce public safety threats posed by foreign visitors.
The January EO, number 14161, doesn't specifically mention giving officials the authority to review years of social media content posted by tourists from friendly countries, but it does give the Department of Homeland Security – which oversees Customs and Border Patrol – broad leeway to screen those who wish to come to the country.
The order gives officials access to "all resources that may be used to ensure that all aliens seeking admission to the United States ... are vetted and screened to the maximum degree possible," and in this instance Customs is taking that to mean requiring "ESTA applicants to provide their social media from the last 5 years." That's not a request, per the proposal - it's mandatory.
We reached out to the agency to get an idea of what sort of information it was seeking on ESTA applicants' online profiles, but we didn't hear back.
According to Brian Hunt, a lawyer at international immigration firm Fragomen, we need only look to other recent Trump administration actions to get an idea of what sort of data it might be requesting.
"In August, the US Citizenship and Immigration Services announced new social media vetting for 'anti-American activity' and last week said they are staffing a new vetting center in Atlanta to, among other things, implement E.O. 14161," Hunt told The Register in an email.
According to Fragomen, the new rule means that people visiting the US should expect to be subjected to a social media review by customs officials.
"The increase in data collection could also mean that ESTA applicants would face an increased likelihood of being flagged for closer scrutiny and/or would experience longer waits for ESTA approval," Fragomen said in a statement about the proposal Tuesday.
While this particular rule is coming out now, the US has been trying to get access to foreign visitors' social media accounts to check for subversive content since the Obama administration. The first Trump administration had plans to gain access to the social media accounts of foreign visitors, and took further action to require foreign students looking for visas to open up their online profiles to scrutiny over the summer, prompting a lawsuit from labor unions and the Electronic Frontier Foundation.
Hunt noted that this new move is very different from prior social media vetting, which was on a case-by-case basis in the past and focused on verifying facts, not examining individuals' speech and opinions.
"In the past, certain facts could lead to a finding that an applicant is inadmissible under US immigration law," Hunt said. "The new vetting, however, is vague, and denials are based on discretion and policy."
It's not just social media posts, either. The proposed rule indicates that ESTA applicants will also have to begin providing several other categories of "high value data" if they want to be granted permission to visit The Land of the Free.
"When feasible," the proposed rule notes, ESTA applicants will have to provide a list of all email addresses (both personal and professional) used in the last decade; five years of telephone numbers for themselves and their families; the names of family members (parents, spouses, siblings, and children) as well as their dates, places of birth, and countries of residence; and biometric data that may include face, fingerprint, DNA, and iris scan records.
Overall, the Trump administration's hostility to foreign visitors could lead to $30 billion in economic losses this year.
"This CBP ESTA development adds another piece to a puzzle that suggests this administration may deny admission to the United States based on speech deemed offensive under a vague standard," Hunt told us.
It's not like tourists lack for other options. A May study from the World Travel and Tourism Council and Oxford Economics projects the US to be the only country (of the 184 it measures) to see a decline in foreign visitor spending this year. ®
Source: The register