‘Secret’ rule prohibiting social media checks for foreign visa applicants doesn’t protect AMERICANS

‘Secret’ rule prohibiting social media checks for foreign visa applicants doesn’t protect AMERICANS

The hits just keep on coming.  It’s almost as if the 2 December terror attack in San Bernardino was designed to be a wake-up call to Americans about how badly our government is failing us, when it comes to its number one job: national security.

First there were disclosures that the Obama administration shut down an intelligence effort that would have identified terrorist Syed Farook.  There were also allegations that the Obama White House told the FBI to “downplay” the reality that this was a terrorist attack.

Then we learned on Friday that female terrorist Tashfeen Malik underwent three background checks applying for her K-1 visa – and all three missed her social media postings in support of violent jihad.

Now we learn that there’s a reason for that.  The Department of Homeland Security has had a “secret,” or at least a previously undisclosed, policy of not reviewing the social media activity of visa applicants.

If this seems insane, or maybe like it’s a reductionist interpretation of a more nuanced policy, here is how ABC’s named source, former DHS official John Cohen put it:

Fearing a civil liberties backlash and “bad public relations” for the Obama administration, Homeland Security Secretary Jeh Johnson refused in early 2014 to end a secret U.S. policy that prohibited immigration officials from reviewing the social media messages of all foreign citizens applying for U.S. visas, a former senior department official said.

“During that time period immigration officials were not allowed to use or review social media as part of the screening process,” John Cohen, a former acting under-secretary at DHS for intelligence and analysis. Cohen is now a national security consultant for ABC News.

Congress, as ABC notes, is livid about this.

The revelation comes as members of Congress question why U.S. officials failed to review the social media posts of San Bernardino terrorist Tashfeen Malik. She received a U.S. visa in May 2014, despite what the FBI said were extensive social media messages about jihad and martyrdom.

Sen. Charles Schumer, D-N.Y., demanded Sunday that the U.S. immediately initiate a program that would check the social media sites of those admitted on visas.

According to a DHS spokeswoman contacted by ABC, in 2014 the Department did initiate a few limited pilot programs for checking visa applicants’ social media profiles, but those programs are still far from widespread.

Cohen made it clear that the issue was a big one at DHS.  It wasn’t on the back burner.  Mid-level managers and analysts knew what they were foregoing by not looking at visa applicants’ social media footprints.

Former DHS under-secretary Cohen said he and others pressed hard for…a policy change in 2014 that would allow a review of publicly-posted social media messages as terror group followers increasingly used Twitter and Facebook to show their allegiance to a variety of jihadist groups.

Cohen said officials from United States Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) both pressed for a change in policy. …

Cohen said the issue reached a head at a heated 2014 meeting chaired by Homeland Security Deputy Secretary Alejandro Mayorkas, other top deputies and representatives of the DHS Office of Civil Liberties and the Office of Privacy.

“The primary concern was that it would be viewed negatively if it was disclosed publicly and there were concerns that it would be embarrassing,” Cohen said in an interview broadcast on “Good Morning America” today.

Cohen said he and others were deeply disappointed that the senior leadership would not approve a review of what were publicly-posted online messages.

And what may be confusing to many Americans is why our social media postings are considered fair game for law enforcement, but the social media posts of foreign visa applicants have not been.

There has been extensive reporting in the last few years on the phenomenon of law enforcement agencies, at all levels, using Americans’ social media records to not only investigate crimes that have already happened, but flag potential troublemakers in order to alert police, prevent crime, and/or justify surveillance.

There are now tech companies, for example, that trawl the web for social media postings on red-flag topics, and package information tied to individual users – who are identified with names and personal data – for subscribing law enforcement agencies.  (General disclaimer: with the links presented here, I am trusting readers to separate factual claims from talking points and sometimes-exaggerated speculation.  You don’t have to agree with the “Occupy” mindset – even in its milder forms – to recognize law enforcement practices that pose a threat to civil liberties.)

Quoting an Examiner article, Aaron and Melissa Dykes summarize the proposition (emphasis in original):

Your local police department is likely using numerous tools and applications that might determine how you get treated during a routine traffic stop, or in response to your neighbor’s call about loud music. One such application, Beware, has been sold to police departments since 2012. It can be accessed on any Internet-enabled device, including tablets, smartphones, laptop and desktop computers, while responders are en route to, or at the location of a call.

This app explores billions of records in social media postings, commercial and public databases for law enforcement needs, churning out “risk profiles” in real time. ‘Beware’ algorithm assigns a score and “threat rating” to a person — green, yellow or red – and sends that rating to a requesting officer. Worst of all, this information is not made available to the very person whose “threat rating” is being appraised. You have no ability to dispute being wrongly designated a high-risk potential offender.

For example, you wrote something about recent Ferguson protests on Facebook. Perhaps, you expressed dissatisfaction with police brutality. Maybe you complained about the CIA’s torture tactics, demanded President Obama’s impeachment or criticized the government in general. You could have shared a petition for the preservation of gun rights, or bought a holster online. You could also be mistaken for another person with a criminal record or a history of radical Internet postings.

I’m not aware of ever being mistaken for a criminal or someone with a history of radical internet postings – but I have been mistaken for a person being taken to court over unpaid debts.  The number of companies that now use public records, including social media, to specialize in data-profiling Americans is mushrooming, and law enforcement is making extensive use of this trend.

Use at the federal level — for “homegrown terrorist” profiling

It’s not just at the level of local policing either.  Using social media to profile potential “domestic terrorists” is discussed specifically by the “Watchlisting Guidance” put out for federal agencies in 2013 by the National Counterterrorism Center.

Among other things, the guidance document had this to say about the use of social media postings:

While the guidelines nominally prohibit nominations based on unreliable information, they explicitly regard “uncorroborated” Facebook or Twitter posts as sufficient grounds for putting an individual on one of the watchlists. “Single source information,” the guidelines state, “including but not limited to ‘walk-in,’ ‘write-in,’ or postings on social media sites, however, should not automatically be discounted … the NOMINATING AGENCY should evaluate the credibility of the source, as well as the nature and specificity of the information, and nominate even if that source is uncorroborated.”

The point here being that federal agencies are assumed by this guidance to be monitoring social media, and linking postings there to identified individuals; i.e., identified Americans.

Yet at the same time, DHS was prohibiting its immigration employees from checking the social media postings of foreigners trying to get into America.

If you’re wondering whether such monitoring of Americans has had concrete results, The New Republic wrote some up earlier this year.  Monitoring their social media activities has been the key to identifying a number of the Americans flagged as ISIS recruits.  For more on preemptive use of social media profiling, see this report (with the general disclaimer above in mind).

There are legitimate concerns about government use of our online data profiles, including what we put on social media.  In a rare instance, I agree with Justice Sonia Sotomayor that the “third party doctrine” – the principle that what has been shared with a third party is no longer “private” – needs a relook in the digital age.  Sharing something with a “third party” today carries implications no one even dreamed of 80 or 100 years ago.

But the rights and wrongs of this issue have been completely inverted, if our federal government is enthusiastically exploiting data on the American people, but thinks it would be embarrassing to be caught exploiting data on foreigners applying for visas.

There’s no consistent moral system that could come up with these conflicting propositions.  It takes a vicious ideology to do that.

J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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