This story has been updated.
Top officials at the Department of Homeland Security considered a specific policy to strengthen security screenings for foreign visa applicants’ social media accounts, but the proposal was ultimately not adopted, according to an internal department memo obtained by MSNBC.
While the U.S. visa screening process does not include formal vetting of social media accounts, the memo proposed the Obama administration “authorize” customs officials to “access social networking sites” to vet applicants. Such vetting could help catch applicants bent on fraud, crime or “national security” risks, the memo stated.
The federal government considered that policy, according to a former senior official in the Department of Homeland Security (DHS), but officials passed on it in 2011.
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“I thought it was a done deal,” said the former official, who would only speak anonymously about internal security discussions.
The memo went through roughly a year of revisions with agency lawyers, privacy officers and senior staff, the official added, and was about to be published as policy – but was then halted by senior officials.
“It’s unusual to go through the circulation process and revisions,” the official said, and then have a policy “not happen.”
“We are at war now,” the official added, “and we need all the tools we can get.”
The three-page memo, now published for the first time exclusively by MSNBC, outlines how officials could use social media to vet visa applicants abroad and inside the United States. MSNBC is publishing the internal memo, marked “law enforcement sensitive,” with redactions for selected operational details.
DHS officials did not dispute the internal memo when asked about it, but emphasized more recent efforts to vet social media accounts.
“The Department is actively considering additional ways to incorporate the use of social media review” for vetting, spokeswoman Marsha Catron told MSNBC, noting that the department began “three pilot programs” for that kind of vetting over the past year.
She said that officials must also ensure any vetting follows “current law and appropriately takes into account civil rights and civil liberties and privacy protections.”
Many in Congress are trying to change current law, arguing vetting should be more robust.
There has been especially harsh criticism from Republicans, but the issue has also cut across partisan lines since the San Bernardino attacks, with Democratic senators calling for a “more rigorous screening process” this week.
Asked about reports of a DHS decision to scuttle the 2011 proposal, several security experts said that was a mistake.
“The Internet is a treasure trove of intelligence gathering,” said former federal prosecutor Michael Wildes. “It’s shocking that this intelligence wasn’t utilized.”
Wildes, an immigration law expert, told MSNBC that if DHS did spike this proposal years ago, it reflects a “blind spot” for public safety.
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As for potential privacy concerns, terrorism expert David Schanzer said that should not even be an issue for social media.
“Social media is on an open forum,” he said. “I don’t see the logic of not using something that’s already in the public space.” Schanzer, who directs a terror and homeland security program at Duke University, also argued that visa applicants “don’t have constitutional rights” protecting their information, so he was especially “surprised” the DHS would reject the proposal. Some customs officials caution, however, that the legal rules can be complex, since screening also affects residents who are inside the U.S. and have various legal protections. Apart from what’s legally allowed, other security experts said it would be tactically unfeasible to screen every visa applicant’s digital presence. “Even a cursory look at the social media accounts belonging to the millions of visa applicants would bring the entire system to a halt,” according to a new briefing paper by the Soufan Group, a security and intelligence company. Still, the briefing noted that “governments will need to develop some practical way to incorporate” social media intelligence “into a workable vetting system.” Current U.S. policy does not include a formula for when to vet social media. Administration officials have emphasized they are taking a “very close look” at visa screenings. In addition, Secretary of State John Kerry recently acknowledged “social media has placed a whole new burden and a whole new set of questions” on the process. Those concerns have continued even as FBI officials have clarified that Tashfeen Malik, the San Bernardino shooter, did not publicly post support for terrorism on social media, as some originally reported. Officials familiar with the 2011 social media proposal have not argued that any specific incidents would be prevented had it been implemented, but rather that the current controversy underscores how potential security reforms have been frozen within the federal government for years. One source with knowledge of DHS screening said that, for years, employees were prevented from even accessing social media sites because of government firewalls designed to prevent staff from engaging in personal social networking on the job. The draft proposal sought to address that concern, stating that customs staff could only visit social media sites for “official government business,” and it sought to address privacy concerns by noting the vetting of social media information “must be limited” to “publicly available information.” Even with those negotiated guidelines, however, the policy was never enacted — leaving many security officials stuck in the thicket of conflicting vetting guidance that continues today. UPDATE: After MSNBC published this article Thursday, members of the U.S. House cited the report while questioning administration officials about visa screenings in an oversight hearing about terrorist travel. Rep. Ted Lieu (D-CA) referred to the report and asked why the administration didn’t implement a social media policy “starting tomorrow.” “Based on an USCIS memo recently released by MSNBC,” he added in a written statement, “I am deeply troubled that” DHS officials have “denied” there were impediments to vetting visa applicants social media. Leon Rodriguez, a DHS official, testified that “there needs to be a structure” for more social media vetting, while he stressed there is no “secret policy prohibiting social media for vetting.” Jason Chaffetz (R-UT) began the hearing by citing the MSNBC report and saying DHS’ decision in 2011 was the “wrong call.” Rep. Stephen Lynch (D-MA) said it’s “entirely reasonable to ask people who are coming from troubled areas, or countries that support terrorism, for their social media accounts,” while Tim Walberg (R-MI), called on the administration to expand the DHS pilot programs for social media screening. Obama administration officials testified from the DHS and the State Department, and emphasized they were reviewing further reforms to the vetting policy.
Ari Melber
Ari Melber, an Emmy Award-winning journalist, writer and attorney, is the host of “The Beat with Ari Melber” airing nightly at 6 p.m. ET on MSNBC. He also serves as MSNBC’s chief legal correspondent and an NBC News legal analyst. Before joining MSNBC, Melber practiced First Amendment law and served as a legislative aide in the U.S. Senate. He received a J.D. from Cornell Law School and is a member of the New York Bar.
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