It is difficult to express my astonishment on reading the news of a "secret" Department of Homeland Security policy prohibiting scrutiny of visa applicants' social media presence. My colleagues' Facebook walls around the country are lit up with statements of disbelief. Too many of us have had our clients questioned about social media posts to buy into the sincerity of this "policy." Some years back, an internal government memorandum even provided guidance to officers on how to take advantage of social media users' "narcissistic tendencies."
Yes, the memorandum is outdated. But who really needed it anyhow? Lawyers regularly screen potential clients through web searches. Trial attorneys, no matter what their areas of specialty, are familiar with strategies for tearing down witnesses based on Internet footprints. Immigration officers are no different from the rest of us. They know how to conduct a Google search.
Are officers flouting this secret policy, or is it so very secret that it has not been communicated down the ranks? Perhaps it is like the military's old "don't ask, don't tell" rule? I.e., search the web but hide it from the person in the neighboring cubicle? This unadhered-to-policy is truly a mystery.
The government's current justification for the policy requires clarification, to put it mildly. One claim is that investigating social media invades privacy, which could cause embarrassment to the United States. Thus, according to the New York Times, there is an internal debate within the Department of Homeland Security as to whether social media review is "appropriate."
Sorry, but we are not that gullible. The Department of Homeland Security has no qualms about arresting the undocumented at 5 am in the morning -- surrounding homes, banging on doors, chaining and shackling mothers and fathers, and brandishing weapons in front of small children. The neighbors are free to watch. When I visit clients in immigration detention, they are strip-searched for contraband afterwards. Privacy and likability are not front-of-mind.
When it comes to balancing visa applicants' privacy and the United States' reputational concerns against national security, I simply cannot swallow what the Department of Homeland Security has told us thus far about its social media policy. Nor should the press, and nor should you. Immigration attorneys know as a profession that the Department of Homeland Security reviews social media posts, notwithstanding government officials' current protestations. Officers might not be consistent, and they might not catch everything -- but they do it. The Department's leadership may need to speak much more extensively to the rank and file about how things play out on the ground. And then we can have an honest conversation about what actually went wrong with Tashfeen Malik's security checks.