When Biden succeeded Trump, he not only threw out the so-called Muslim ban (which prohibited entry from Muslim-majority countries), he also announced that he would look critically at another element of Trump’sextreme fat‘-policy. Namely, the stipulation that nearly 15 million incoming foreigners should use their social media handles must state on their visa application. Everything from the past five years, from twenty platforms – including Facebook, Twitter and YouTube.
This spring it became clear that the Biden administration has, shall we say, changed its mind. The proposal now on the table expands the social media dragnet by an additional 15 million travelers, this time for people flying on an ESTA. This is a simplified travel permit, used by almost all Europeans traveling to the US. For the time being, it is optional to share your Twitter or Instagram account with the US, but that will become mandatory if it is up to Biden. Lying risks “serious consequences.”
I spoke to two lawyers at the Knight First Amendment Institute in New York. Anna Diakun and Carrie DeCell find the steady expansion of the surveillance state under Biden deeply concerning. Diakun fears a negative effect on freedom of expression: that people (for example activists) self-censor online for fear of not being allowed to enter the country. Where they might want to apply for asylum. And what if countries like Iran or Russia carry out cyber attacks on the US in order to extract this data from them?
The institute Diakun and DeCell work for, which specializes in law and freedom of expression, filed an official request this summer to inspect Biden’s proposal. Because why is he expanding surveillance instead of reducing it, as he had suggested? What is the justification? What effectiveness does the government claim in this expansion of violating the privacy of millions of people? Preventing attacks? The only justification now in the proposal: the policy “will improve the vetting process and help confirm travelers’ identities.” Apparently a passport is not enough for that.
In August, the answer to the lawyers’ request fell on the mat: application rejected. The avenues of US security policy – Democratic or Republican – are unfathomable. On purpose, as it turns out.
Via Zoom I speak to Frederik Zuiderveen Borgesius, professor of ICT & Law (Radboud). Is the Netherlands considering such a policy? “Luckily not.” Europe takes privacy more seriously than the US, where it is enshrined in treaties. In the US, the Fourth Amendment remains with the Constitution, which mainly deals with unreasonable searches. Is there anything that the Netherlands or the EU can do against privacy violations by incoming Europeans? “I don’t give that much chance of success, you still have to accept each other’s national law and policy.”
Zuiderveen Borgesius joins the American lawyers: if the US implements this, there is a good chance that other countries will follow. “It normalizes creepy surveillance.”
Madeleijn van den Nieuwenhuizen writes here every other week.
A version of this article also appeared in the December 5, 2022 newspaper