The United States Department of Homeland Security (“DHS”) published, on September 18, 2017, in the Federal Register, a notice that it would begin collecting certain information relating to immigrants’ use of social media as part of the National File Tracking System of Records. Since 1944, so-called Alien Files have been the official record system of immigrants, who have each received an Alien Registration Number. These files have historically contained basic information, such as each immigrant’s name, date of birth, date of entry into the United States, country of birth, parents’ names, and naturalization information, if applicable. The files also generally include any record of interactions between each immigrant and the United States government.
The notice released on September 18 states that, effective October 18, 2017, the DHS is expanding the information collected for the Alien Files to include, among other data, “social media handles, aliases, associated identifiable information, and search results.” The data will also include “publicly available information obtained from the internet.” The DHS does not explain the process for collecting this additional information, but states that it plans to “expand data elements used to retrieve records.”
After the mass shooting in San Bernardino, California, on December 2, 2015, lawmakers became concerned with terrorist groups’ use of social media. The social media activity of the two San Bernardino attackers, though private, revealed their commitment to jihad. The concern of lawmakers resulted in bipartisan support for considering social media activity as part of the immigration process, such as during the visa vetting process. However, some have noted that what makes the September 18 change unique is that the system will monitor the social media activity of immigrants already in the United States, including green card holders and even naturalized citizens and lawful permanent residents.
The new modification could have an effect on the approximately 43 million immigrants currently residing in the United States, as well as natural United States citizens, whose data could be collected as a result of communicating with immigrants through social media.
The U.S. government’s monitoring of social media activities raises a question about the legal landscape of this sort of monitoring at an employer-employee level. Employers’ monitoring of their employees’ social media pages is currently a common practice, but companies can face risks under federal employment laws when making employment decisions based on certain information found in an employee’s social media account. If an employee’s social media profile is public, an employer may freely view and collect data on that profile. It is unlikely that the September 18 notice will cause any notable change with respect to employers’ legal obligations to immigrant employees. Companies should always check the employee privacy laws in their countries or states and ensure that their internal policies are in compliance with such state and federal laws.