Earlier this month, President Trump’s revised executive order restricting immigration from six majority-Muslim countries was found to discriminate against Muslims and blocked nationwide by federal judges in Hawaii and Maryland. The order attempts to halt the issuance of visas from Syria, Iran, Libya, Sudan, Somalia, and Yemen for 90 days, and suspend the refugee admissions process for 120 days. The supposed pretext of the order is simple – providing time for the named countries to improve the vetting process for individuals seeking entry into the United States. The idea is that once the countries listed in the order shore up their vetting procedures, restrictions will be extended for countries that cannot demonstrate the guarantees the U.S. Government seeks.
On this basis, the Trump administration maintains that the revised order is nondiscriminatory. But little has been said about the potential of new vetting procedures to disparately impact Muslims inside and outside the United States. If current policies and suggested “improvements” from the Trump administration are taken seriously, enhanced visa processing procedures, dubbed “extreme vetting” by the president, would likely target Muslims in a narrowly tailored way.
What we’ve seen of the emerging architecture, thus far – increasing reports of religious profiling at borders, potentially changing U.S. Customs and Border Protection (CBP) rules on collecting and sharing social media identifiers, and the Secretary of Homeland Security insinuating that new procedures could require travelers to give up their cellphone and social media passwords as a prerequisite to U.S. entry – foreshadow a dangerous future. When combined, these attempts at overbroad data collection and religious profiling have the potential to brand Muslims as a suspect class.
The focal point of this danger lies in Obama-era rule changes allowing the CBP to collect and share information associated with travelers’ social media identifiers. These rules have revised how the Electronic System for Travel Authorization (ESTA) application applies to travelers. ESTA is an automated system that collects biographic information and answers to certain questions to determine the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP). VWP is a program administered by the Department of Homeland Security (DHS), in consultation with the State Department, permitting citizens of 38 countries to travel to the U.S. without a visa. Other recent changes restrict foreign nationals from traveling to the U.S. under VWP if they have traveled to or have been present in the six countries listed in the revised executive order and Iraq on or after March 1, 2011, with limited exceptions for diplomatic or military purposes. These changes have transformed the ESTA into a form of “extreme vetting” for VWP travelers at the border. If used to inform the extreme vetting policy at the visa issuance stage more generally, these guidelines could usher in a new age of discriminatory overbroad data collection.
According to the DHS, U.S. border officials are currently allowed to take into account social media content posted by an ESTA applicant or “information posted by an associate” on an ESTA applicant’s social media page to restrict entry to the country. If a CBP review uncovers “a nefarious affiliation on the part of the applicant” or information that constitutes “a risk to the homeland,” border officers have unchecked discretion to restrict entry.
Furthermore, the CBP has the ability to conduct link analysis, a data-analysis technique used to evaluate connections in a network, on applicants, enabling the agency to “identify direct contacts (such as an ESTA applicant’s ‘friends,’ ‘followers,’ or ‘likes’), as well as secondary and tertiary contacts” with “nefarious affiliation[s]” or those who pose “risk[s] to the homeland.” In short, this policy allows CBP officials to take into consideration one’s primary, secondary or tertiary associates, as well as their online posts to supplement a traveler’s vetting process. Although the preceding terms are undefined in the publicly accessible literature, we can quickly fill in the gaps with current discriminatory vetting procedures.
Only a week before President Trump was sworn into office, formal complaints were filed with CBP, the DHS, and the Department of Justice detailing the cases of eight Americans and one Canadian, at various border crossings, who were systematically questioned for their religious beliefs and forced to hand over social media information to CBP officials. Some of the questions asked include: “Are you a devout Muslim?”, “Do you pray five times a day?”, “Have you ever delivered the Friday Prayer?”, “Why do you have a Qur’an in your luggage?”, and “Why did you shave your beard?” In 2015, portions of a questionnaire used by Immigration and Customs Enforcement (ICE) agents posed similar religious questions.
These questions categorize innocuous behaviors, specifically related to Islam, as grounds for added scrutiny at the border. When pooled with the government’s ability to analyze information from travelers’ online social networks, it is likely that countless Muslims will be subject to great difficulties if run-of-the-mill issues such as Friday Prayer and travelers’ beards are included in visa issuance extreme vetting procedures.
Additionally, it is entirely possible that extreme vetting may not even be based on any definable standard other than being a Muslim, opening up widespread opportunities for abuse. The wide latitude given to CBP officers in the weeks following the first iteration of the executive order demonstrates that such cases are not only possible but highly likely. Bad actors within the CBP have repeatedly ignored judicial orders, coerced deportations, and denied travelers access to food and water. Moreover, there have been ongoing complaints of religious profiling by DHS officials, even before the Trump administration. These complaints appear to have escalated – even entangling celebrities, such as Muhammad Ali’s son, who was detained at a D.C. airport after testifying at a Congressional forum on immigration and racial profiling earlier this month.
If current online border vetting procedures and suggested “improvements” from the Trump administration are taken seriously, “extreme vetting” will criminalize Muslims from across the globe. Large numbers of Muslims will likely be excluded from entering the United States for no good reason, and many in the United States may face the brunt of additional scrutiny at the border for affiliating with family and friends from outside the country. In the age of big data, government vetting of innocuous behaviors, especially those associated with religious activity, should not be the standard.