A disputed rule that forces millions of applicants for a visa to enter the United States to disclose their social media profiles to the government has done little to help screen for possible terrorists, newly disclosed documents show.
The requirement, enacted by the Trump administration in 2019, adds “no value” to the screening process and has had “very little impact” on its accuracy, intelligence officials concluded in reviewing the policy.
The rule raised novel questions about chilling online speech and privacy and prompted President Biden to begin a review when he took office. But his administration has not released a report with the results and has kept the policy in place, including winning a ruling last month from a federal judge in Washington who dismissed a legal challenge to it.
The Knight First Amendment Institute at Columbia University used the Freedom of Information Act to obtain documents connected to that review and provided them to The New York Times. The Knight Institute, along with the Brennan Center for Justice at New York University, also led the lawsuit challenging the rule.
The lawsuit argued in part that the rule could endanger applicants from authoritarian countries. Forcing them to disclose pseudonyms they use to discuss politically sensitive matters on social media could create a risk that the information gets back to their own governments.
By chilling such people from expressing themselves online, it argued, the rule infringed on the First Amendment. Not only did it affect the rights of Americans to hear what those applicants have to say, it also had implications for the rights of foreigners who are protected by the Constitution, like people already on American soil.
Anna Diakun, a lawyer at the Knight Institute, argued that the findings showed that the government should stop collecting such data.
“This is security theater, and even the government seems to know it,” Ms. Diakun said. “Given the costs that this kind of surveillance imposes on the freedoms of speech and association, the government should have abandoned it long ago, and it should certainly abandon it now.”
The White House National Security Council declined to comment.
A senior administration official, speaking on the condition of anonymity to discuss internal deliberations, agreed that collecting social media data had yet to help identify terrorists among visa applicants. But security officials had argued that there was still reason to think that gathering such information could be worthwhile, the official said, and the administration had decided to take more time to figure out how best to use it.
Indeed, one of the emails suggested that national security officials wanted to be able to collect social media identifiers in bulk for a different purpose: because the information could contribute to vast databases used for so-called identity intelligence, whenever analysts try to determine who particular people are.
The policy traces back to the Obama administration at the height of the Islamic State’s power, particularly after a married couple shot and killed more than a dozen people in San Bernardino, Calif., in 2015. One of the suspects had pledged allegiance to ISIS on Facebook shortly before the attack, and the group used social media frequently. That prompted counterterrorism officials and lawmakers of both parties to back the idea of checking foreign visitors’ social media activity as part of the vetting process.
In 2016, Citizenship and Immigration Services, an agency in the Department of Homeland Security, carried out a pilot project to try to identify any problematic social media posts of visa applicants. The following year, an inspector general report questioned its effectiveness. Another agency, Customs and Border Protection, began asking people who registered online to visit the United States from a country that does not require a visa to supply their social media handles to assist in vetting. But answering the question has been optional.
Also in 2016, as Donald J. Trump campaigned for president, he stoked fears about terrorists entering the United States. He vowed to ban Muslims from entering and impose “extreme vetting” of visitors.
In 2017, after he was elected, Mr. Trump issued a series of executive orders that sought to impose limits on entry by people from several Muslim-majority countries. One, issued in March 2017, also contained a directive to revamp “screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists.”
That led the State Department in 2018 to propose asking visa applicants to submit their social media handles from the previous five years, eliciting an outcry. During the public comment period, about 10,000 people raised concerns over the consequences of such a rule, including whether it would chill rights to freely speak and associate with other people, intrude on privacy or even be effective. But the State Department began enforcing the policy in 2019.
Since then, the handles of any social media accounts submitted by visa applicants have been sent to the National Counterterrorism Center, the government’s clearinghouse for intelligence concerning international terrorism, along with other personally identifying information like names, addresses and phone numbers.
Analysts at the center run the information through a central database. If there is a possible match, analysts scrutinize the applicant more closely and the State Department may deny a visa.
In late 2019, the Knight Institute and Brennan Center, on behalf of two documentary film organizations, filed its lawsuit challenging the new rule. They argued that it had been created improperly and that it violated the First Amendment.
That lawsuit was still pending before a Federal District Court judge in the District of Columbia who had been appointed by Mr. Trump, Timothy J. Kelly, when Mr. Biden took office in January 2021. On the day of his inauguration, Mr. Biden issued a proclamation rescinding Mr. Trump’s “discriminatory bans on entry into the United States.”
The proclamation also directed the State and Homeland Security Departments as well as the Office of the Director of National Intelligence to review whether collecting social media data had meaningfully improved the screening and vetting process.
The lawsuit was paused amid expectations that the Biden administration might revoke the policy.
While the White House has not made public a report from the review, it also rejected two proposals by the Department of Homeland Security to further expand its collection of visitors’ social media user names. The office in the White House that reviews proposed regulations said in one case, “the agency has not adequately demonstrated the practical utility of collecting this information.”
But the State Department kept the question on visa application forms. It told the judge last year that while the policy remained under discussion, there were no imminent plans to change it. Last month, Judge Kelly dismissed the lawsuit.
He ruled that such a regulation could stand so long as there were a rational justification for it, and that there was no need for the government to offer any evidence showing that it actually worked.