On September 18, 2017, the Department of Homeland Security published a new rule in the Federal Register proposing a modification of how individuals are tracked as they move through the immigration process. The new rule will expand the types of information stored in an individual’s file, including “social media handles, aliases, associated identifiable information, and search results.” The rule also allows DHS to “update record source categories to include publicly available information obtained from the internet, public records, public institutions, interviewees, commercial data providers, and information obtained and disclosed pursuant to information sharing agreements.”
The rule outlines that any immigrant would be subject to this information collection, including lawful permanent residents, naturalized U.S. citizens, individuals petitioning for benefits under the INA on behalf of another individual, relatives and associates of any of the individuals listed above who are subject to the INA, and approximately ten other separate categories. Also included in the list of individuals covered under the system are preparers and interpreters assisting an individual seeking immigration benefits and attorneys who are recognized by USCIS or accredited by the BIA. This type of scrutiny could have a chilling effect on those who assist immigrants in navigating the legal system.
Any wide scale collection of information on the listed individuals would not only include “immigrants” but many naturalized and U.S.-born citizens, either as directly collected by the law or as a result of their communications with individuals in the listed categories. The rule also includes “law enforcement officers who certify a benefit requestor’s cooperation in the investigation or prosecution of a criminal activity.” The certification is one requirement for individuals applying for a U visa, which is a nonimmigrant visa reserved for “victims of certain crimes who are currently assisting or have previously assisted law enforcement in the investigation or prosecution of a crime, or who are likely to be helpful in the investigation or prosecution of criminal activities.” Officers may hesitate to provide this certification knowing that they could potentially be subject to additional monitoring, leading to increased distrust between the immigrant community and law enforcement and other unwanted outcomes in communities across the country.
There are a number of federal statutes that this policy may affront, but particularly the rule raises questions in terms of its constitutionality, as it could impact First and Fourth Amendment rights of many U.S. citizens. The Fourth Amendment to the U.S. Constitution places limits on search and seizure by the government, and this protection often hinges on what is deemed to be “public” and therefore imputing license and consent. Where probable cause or a warrant is needed to enter an individual’s house or vehicle, the Fourth Amendment does not limit the government’s ability to follow people on a public street. Our daily internet activities are increasingly subject to the same types of arguments: does the act of posting from a social media account imply consent by placing the information on a public domain? Alternatively, users can limit who sees posted content by adjusting privacy notifications and designating what is available to the general public. Does this indicate that the information resides in the private domain because an invitation is necessary? These questions will have to be addressed as regulations evolve in our increasingly digital world.
The Federal Register states that “the purpose of this system of records is to facilitate administration of benefits and enforcement of provisions under the INA and related immigration statutes.” However, permanent residents and naturalized citizens have already undergone intense vetting procedures and U.S. citizens are no longer seeking any immigration benefits. Including these individuals (and even natural-born citizens who have never sought immigration benefits), seems contrary to the system’s purpose and could lead to increased costs for data collection and storage.