Trump Administration’s “Extreme Vetting” Crystallizes as Intrusive Policy Proposals
Foreign nationals seeking to enter the United States may soon be subject to probing vetting procedures, including surrendering their mobile devices and answering exhaustive personal questions on friends and family, past employers, and professed ideologies.
A well-sourced report published this morning, citing unnamed Trump administration officials at the Department of Homeland Security (DHS), details what the president’s generic campaign pledge of “extreme vetting” is poised to look like at ports of entry. If current proposals are implemented, aliens would be compelled to provide to Customs and Border Protection (CBP) officers their cell phones, passwords for such social media accounts as Facebook and WeChat profiles, and information on finances. Virtually no personal data contained therein – including a foreigner’s stored contacts – would be off-limits to CBP scrutiny. The draft vetting protocol, moreover, would not apply only to specific nationalities or certain visa holders, but rather may encompass even aliens on brief vacations in the U.S., as well as nationals of some of America’s most prominent allies like France and Germany.
As we notified our readers last month, President Trump’s revised executive order has, in large part, been enjoined by federal judges in Hawaii and Maryland. While the court in Hawaii last week extended its original temporary restraining order into a longer-lasting preliminary injunction, no judicial halt issued thus far has applied to components of the order outside of refugee admissions and restrictions on travel into the U.S. of citizens from six predominately Muslim countries. As a result, Section 5 of the so-called travel ban, which directs a comprehensive review of immigration admission and ultimately seeks to devise and implement “rigorous” vetting procedures, has been allowed to proceed. The prospective changes reported today comprise elements of this aspect of the executive order.
The changes are not confined to foreigners passing through ports of entry. According to DHS officials, the administration is concurrently looking into reformatting the visa application process to include more intensive security checks and longer interview sessions. While in the past aliens have had to provide their phones at the border, prospective visa holders would themselves be required to submit devices and social media accounts to screening as part of the application process. They may also be subject to a new “ideological test,” not unlike past immigration questionnaires that aimed to weed out Communist Party members during the visa application stage. DHS sources said that such a test would interrogate visa applicants on their beliefs on issues ranging from women’s rights to the “sanctity of human life.” Notably, not even citizens from countries participating in the Visa Waiver Program, which includes such allies as Japan and Australia, would necessarily be exempt from these intrusive procedures.
Also today, whether coincidentally or not, a bipartisan bill was introduced in both the House and Senate that requires border agents to obtain warrants prior to searching the digital devices of American citizens or otherwise restricting their entry if citizens refuse to submit to intrusive screening procedures. The legislation invokes Riley v. California, the 2014 Supreme Court decision that found that warrantless searches and seizures of digital data during arrests are unconstitutional.
Border agents and consular officials have considerably broader latitude than do, say, police officers in how they can legally conduct searches, as well as what they are permitted to include in their searches. In fact, the policy permitting officers at the border to ask aliens to surrender their digital devices for inspection began under the previous administration. Though those DHS guidelines stipulated that foreigners could not be compelled to unlock their devices for screening, they nonetheless allowed officers to confiscate phones and laptops, and even copy stored data. The Trump administration’s proposals diverge from these standards insofar as the Obama-era policy barred agents from compelling aliens to divulge their social media profiles and passwords.
Just as with the president’s enjoined travel bans, which we consider to be unsound policies that do more to engender hostility toward the U.S. than to protect Americans from hostile foreigners, we remain hopeful that the judiciary and public knowledge and activism will continue to serve as bulwarks against the administration’s ill-guided and potentially unconstitutional actions. Further, it’s our view that these vetting proposals are likely to be deemed useless on their own merits, as individuals truly representing a threat to the U.S. would find it easy to circumvent the intrusive entry requirements by doing the most obvious of things – for instance, simply traveling with burner phones.
Until the reported draft proposals are implemented, we offer the following general, non-legal recommendations to our readers who have impending plans to enter the U.S.:
This is a developing story, and as more information becomes available, updates will be published on our news section.
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