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James Trusty Speaks with Law360 on DHS’ New Immigrant Data Rule

Privacy Advocates Decry DHS’ New Immigrant Data Rule

Law360, New York (September 27, 2017, 9:18 PM EDT) — A new U.S. Department of Homeland Security rule outlining the types of information that can be stored in immigration files has drawn fire from privacy advocates who argue the information is overly broad and may be used for discriminatory purposes, although former officials say the rule simply allows agencies to store information they already had access to.

The rule published in the Federal Register last week calls for expanding the kinds of information the agency can place in an individual’s immigration file, or “Alien File.”

The list includes information such as aliases, social media handles, “associated identifiable information,” search results, and any information publicly available through the internet or “commercial data providers.” It also includes information disclosed “pursuant to information-sharing agreements.”

Privacy advocates have raised objections over the scope of the information, which they say will be compiled on any immigrant or naturalized U.S. citizen, producing a chilling effect on their speech and unfairly invading their privacy.

Nuala O’Connor, a former privacy officer at DHS and now president and CEO of the Center for Democracy & Technology, argued the rule creates a slippery slope toward barring some immigrants from the country based on their views.

“The Department of Homeland Security’s practice is an affront to basic human dignity. Individuals and families who immigrate to the United States should not be subject to these overbroad and overly invasive rules,” O’Connor said.

The rule, set to go into effect on Oct. 18, comes as debate over border security has heated up during the first year of the Trump administration. In April, ​Gen. John Kelly, then secretary of homeland security, suggested that social media searches would be used sparingly, but left the door open to bolstering search efforts in the future.

In June, the Trump administration signed off on a new questionnaire for visa applicants calling for data such as their social media user names and years worth of travel, employment and other biographical information.

The measure, which was deemed necessary for more vigorous security vetting, was technically voluntary, though the questionnaire states that people who don’t comply run the risk of having their applications delayed or denied.

On Tuesday, Faiz Shakir, the national political director of the American Civil Liberties Union, called the rule an ineffective “collect-it-all” approach and an example of the “Trump administration’s anti-immigrant agenda.”

O’Connor said that her organization would oppose the rule change, arguing the rule’s wording is vague and that it is unclear how authorities will apply it, or whether it will be used to determine other programs such as benefits. While the program appears on its face to be voluntary, O’Connor said immigrants will nonetheless feel pressure to divulge their social media account information.

“It’s always struck me that the darkest moment of democracy is when lawful residents and naturalized citizens aren’t good enough,” O’Connor said.

“This Privacy Act notice makes clear that the government intends to retain the social media information of people who have immigrated to this country, singling out a huge group of people to maintain files on what they say,” Shakir said in a statement.

The rule may face challenges, attorneys said, particularly by groups concerned that it treats naturalized citizens differently than natural citizens. Richik Sarkar, a partner with McGlinchey Stafford, also noted that it’s not clear how the government will keep the information safe.

“Not all social media information is public, so even if the government was reviewing such information before, this raises the bar significantly,” Sarkar said.

But former DHS employees and legal advisers are at odds over whether the rule allows agents to collect social media data from immigrants and naturalized citizens or whether the agency is simply doing a bit of formal housekeeping.

Jonathan Meyer, former deputy general counsel at DHS and current partner at Sheppard Mullin Richter & Hampton LLP, said that the new system of records rule isn’t expanding the department’s collection efforts, but giving it the authority to store information it already has in immigration files.

“This is one instance where some news reporting has gotten it wrong,” Meyer said.

Leon Fresco, the former deputy assistant attorney general for the Office of Immigration Litigation at the U.S. Department of Justice and a partner at Holland & Knight Washington, D.C., said the rule simply provides notice to individuals and attorneys looking through an A-file, or immigration file, that information the government has for years looked at will appear in A-files.

Fresco, who now advises businesses and individuals on immigration issues, says the new rule doesn’t expand agencies’ ability to request information, such as passwords to social media accounts, but compiles what’s already publicly available.

“I’m not losing sleep over this one. No one is saying they’re going to hack into your private Facebook account,” Fresco said. “The rule is saying if you already have something out there, that’s fair game.”

“I think this is a non-issue, but DHS has to publicize what’s happening, otherwise people are going to be wonder why their social media information is in their A-file,” Fresco said.

The rhetoric on either side of the debate over security and immigration has thrown every immigration and rule and policy change under a magnifying glass, Ifrah Law PLLC partner and former federal prosecutor Jim Trusty said.

Trusty said the rule change modernizes an antiquated filing system, centralizing information on immigrants.

“The reality is if you’re a prosecutor and you’re trying to get your hand on an A-file, you’re sending agents to dusty offices around the country to get their hands on dog-eared files. It was an antiquated system,” Trusty said.

The rule doesn’t compel agents to collect information, he said, and shouldn’t concern individuals concerned about their privacy. That said, it “goes beyond just granting authorization to put information in a file: It’s a subtle reminder that DHS wants agents to obtain social media info during any kind of border contact.”

Trusty, a white-collar and government investigations attorney, advises lawyers and business executives to think pragmatically about whether divulging non-confidential personal information to border authorities is worth the fight, and said the delay and inconvenience of withholding a social media user name might not be worth it.

“If I don’t have something to hide and protect, is it worth the principled fight at 11 p.m. at the border?”

–Editing by Philip Shea and Kelly Duncan.

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