The US Customs and Border Protection (CBP) has added a request for social media identifiers as part of the visa waiver program (VWP) screening process. This is a novel approach to security screening for the Department of Homeland Security (DHS), marking DHS’ first use of a request for social media identifiers in an immigration benefits or travel application. The social media questions on the Electronic System for Travel Authorization (ESTA) application are listed as optional. It is too early to assess the consequences of answering (or failing to answer) these additional questions.
Background: Security Related VWP Restrictions
The VWP permits citizens of 38 countries to visit the US for up to 90 days without first obtaining a visa stamp from a US consulate. The VWP was modified in December 2015 by the Visa Waiver Improvement and Terrorist Travel Prevention Act of 2015. This law prohibits the use of VWP by individuals who are nationals of Iraq, Syria, Iran or Sudan. Additionally, the December 2015 law eliminated VWP availability for individuals who have traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen.
In June 2016, CBP proposed the inclusion of questions about social media within the ESTA form. This proposal was implemented in late December 2016.
Social Media Question on ESTA Form
The ESTA application now includes a request for “information associated with your online presence – Provider / Platform – Social Media Identifier.” The form allows for entry of multiple social media identifiers. CBP’s Privacy Impact Statement states, the social media identifiers will be used to conduct screening, vetting and law enforcement checks of ESTA applicants; this is tied to the use of social media as a mode of communication and recruitment by various terrorist organizations. While the request for this information is new, DHS is not new to the use of social media in investigations. Moreover, President- Elect Trump made immigration vetting, including social media review, a cornerstone of his campaign. The recognition of the use of social media for recruitment and propaganda by terrorist and radical factions is likely to lead to further use of social media screening in the immigration security context.
Use of Information
The CBP plans to use the information gathered from ESTA applicants who chose to divulge their social media identifiers to screen applicants for national security and law enforcement purposes as well as for VWP eligibility. If areas of concern are uncovered in the initial screening, the CBP will engage in further investigation into the applicant’s social media accounts.
CBP will retain the information gathered via an individual’s social media accounts. Since the purpose of social media is to connect with others, CBP may analyze these connections and capture information relating to ESTA applicant’s online “friend” network.
Areas of Concern
The request for social media information raised numerous privacy-related concerns. Once such concern is whether the request for social media identifiers is truly optional. CBP indicates that ESTA applications can be successful, even if the applicant chooses not to divulge social media information. Another area of concern is the potential for misinterpretation of social media postings. It is well known that not everything posted on social media is accurate. CBP states that ESTA clearance will not be denied solely because of social media information.
Allow Time for Visa Application as Alternative
Only time will tell what impact the social media questions will have on ESTA applications. Individuals who are denied ESTA clearance will need to obtain B1/B2 visitor’s visas if they still wish to visit the US temporarily. ESTA application denials are typically issued as a blanket statement citing security concerns and do not allow for a fast track appeal process. It can take months for CBP to process a request to redress a denial. In light of the uncertainty created by the inclusion of the social media question, those needing ESTA clearances for VWP travel should allow enough time for the B1/B2 visa application process, in the event they cannot obtain an ESTA clearance.