Two documentary film organizations, Doc Society and the International Documentary Association, or IDA, are challenging a new rule put in place by the U.S. government that requires visa applicants coming into the country to include all their social media handles in their applications.
Doc Society and IDA filed a complaint in the U.S. District Court for the District of Columbia against the State Department and the Department of Homeland Security, saying that the rule violates their rights as well as the rights of their members and related partners.
The rule from the State Department, which took effect in May, requires that visa applicants register all social media handles used across 20 different services that an applicant has used within the last five years, including ones used under pseudonyms. The organizations say in the lawsuit that the rule gives the government the power to retain the collected information indefinitely, share it broadly among federal agencies and disclose it, in some circumstances, to foreign governments. The rule has previously been criticized as an invasion of privacy.
The documentary film organizations are represented by the Brennan Center for Justice and the Knight First Amendment Institute at Columbia University. They argue that the social media registration requirement chills prospective visa applicants from engaging in constitutionally protected speech and association, deters them from applying for visas to travel to the United States and burdens the ability of U.S. organizations and audiences to engage with filmmakers from around the world.
“Even the government’s own tests haven’t produced any evidence that social media screening works to reliably identify fraud or national security threats,” Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program, said in a statement. “And that isn’t surprising – officials are looking at posts in thousands of languages, and are trying to interpret jokes, slang, and sarcasm in digital spaces where people communicate differently than they would in real life.”
A spokesperson for the Department of State said in a request for comment, “The Department does not comment on pending litigation.” The Department for Homeland Security did not immediately respond to a request for comment.
Doc Society is a non-profit organization committed to supporting documentary filmmakers and connecting them with global audiences, and the International Documentary Association is a non-profit, membership-based association of documentary filmmakers. IDA’s members and partners include internationally acclaimed documentary filmmakers who come from a variety of countries and represent a range of social and political perspectives. Some use pseudonyms as their social media handles to protect themselves and their families from reprisal by repressive governments or private actors.
“We regularly work with filmmakers for whom the ability to maintain anonymity online can be a matter of life and death,” Jess Search, director of Doc Society Inc, said in a statement. “As an organization committed to filmmaker safety, we believe the registration requirement is a deeply troubling and oppressive development, forcing filmmakers to choose between free online expression and their own security. The U.S. government should be championing freedom of expression, not taking actions which will inhibit it.”
“Social media screening has already deterred some of our members from applying for visas, preventing them from participating in recent U.S. film festivals and limiting their ability to tell their stories to U.S. audiences,” Simon Kilmurry, executive director of the IDA, said in a statement. “In our increasingly global world, the meaningful exchange of ideas and perspectives should be celebrated, not stifled.”
The lawsuit specifically challenges both the registration requirement and related retention and dissemination policies. The suit contends that the registration requirement violates the First Amendment because the requirement is not narrowly tailored to the government’s immigration enforcement and national security interests, and that it violates the Administrative Procedure Act because the collection is not “necessary” to establishing visa applicants’ identity or visa eligibility, and because the requirement is arbitrary and capricious.
“The registration requirement is the linchpin of a far-reaching and unconstitutional surveillance regime that permits the government to monitor the online activities of millions of visa applicants, and to continue monitoring them even after they’ve entered the United States,” Jameel Jaffer, executive director of the Knight Institute said in a statement. “The government simply has no legitimate interest in collecting this kind of sensitive information on this immense scale, and the First Amendment doesn’t permit it to do so.”
The plaintiffs ask the Court to declare the registration requirement unlawful and to halt its enforcement.
Lawyers on the case include Jameel Jaffer, Katie Fallow, Carrie DeCell, Anna Diakun and Leena Charlton for the Knight Institute, Faiza Patel, Rachel Levinson-Waldman, and Harsha Panduranga for the Brennan Center, and Paul Curnin and Sarah Eichenberger for Simpson Thacher.
Read the complaint here.
Pamela Chelin contributed to this report.