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Advocacy Groups And Legal Experts Denounce DHS Proposal Requiring Travelers To Disclose Social Media Credentials

U.S. Department of Homeland Security logo Several dozen human rights organizations, civil liberties advocates, and legal experts published an open letter on February 21,2017 condemning a proposal by the U.S. Department of Homeland Security to require the social media credentials (e.g., usernames and passwords) of all travelers from majority-Muslim countries. This letter was sent after testimony before Congress by Homeland Security Secretary John Kelly. NBC News reported on February 8:

"Homeland Security Secretary John Kelly told Congress on Tuesday the measure was one of several being considered to vet refugees and visa applicants from seven Muslim-majority countries. "We want to get on their social media, with passwords: What do you do, what do you say?" he told the House Homeland Security Committee. "If they don't want to cooperate then you don't come in."

His comments came the same day judges heard arguments over President Donald Trump's executive order temporarily barring entry to most refugees and travelers from Syria, Iraq, Iran, Somalia, Sudan, Libya and Yemen. Kelly, a Trump appointee, stressed that asking for people's passwords was just one of "the things that we're thinking about" and that none of the suggestions were concrete."

The letter, available at the Center For Democracy & Technology (CDT) website, stated in part (bold emphasis added):

"The undersigned coalition of human rights and civil liberties organizations, trade associations, and experts in security, technology, and the law expresses deep concern about the comments made by Secretary John Kelly at the House Homeland Security Committee hearing on February 7th, 2017, suggesting the Department of Homeland Security could require non-citizens to provide the passwords to their social media accounts as a condition of entering the country.

We recognize the important role that DHS plays in protecting the United States’ borders and the challenges it faces in keeping the U.S. safe, but demanding passwords or other account credentials without cause will fail to increase the security of U.S. citizens and is a direct assault on fundamental rights.

This proposal would enable border officials to invade people’s privacy by examining years of private emails, texts, and messages. It would expose travelers and everyone in their social networks, including potentially millions of U.S. citizens, to excessive, unjustified scrutiny. And it would discourage people from using online services or taking their devices with them while traveling, and would discourage travel for business, tourism, and journalism."

The letter was signed by about 75 organizations and individuals, including the American Civil Liberties Union, the American Library Association, the American Society of Journalists & Authors, the American Society of News Editors, Americans for Immigrant Justice, the Brennan Center for Justice at NYU School of Law, Electronic Frontier Foundation, Human Rights Watch, Immigrant Legal Resource Center, National Hispanic Media Coalition, Public Citizen, Reporters Without Borders, the World Privacy Forum, and many more.

The letter is also available here (Adobe PDF).


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Chanson de Roland

Let us first dispense with the lose and inaccurate talk about refugees and applicants for visas having rights to not have to surrender their login credentials and/or their computing devices. They don't have any such rights, at least they don't under the U.S. Constitution. The U.S. Constitution only grants right to U.S. citizens and holders of green cards in their relations with U.S. governments, and particularly when U.S. citizens are present in the states or territory of the U.S. The U.S. Constitution doesn't confer rights on any non- citizens. Nor does international law grant any rights to non-citizens, because the U.S. Is a dualist state, that is, only the U.S. Constitution. and applicable laws of the federal government and the states are laws in the U.S., its territories, and its states.

Non-citizens only have rights as established by U.S. statue or regulation. The U.S. Supreme Court has also established some limited rights to due process and some rights that are inherent to due process, U.S. law, rights inherent to justice and decency, and/or pursuant to contract. But other than that, non-citizens don't have any rights.

So the question is more a matter of whether DHS's proposal (Proposal) is good policy. It is not. First, it would produce so much information that not even a fraction of it could be processed, and any sincere attempt to process it will exhaust important resources that could be best used otherwise to better protect the U.S. and her people. Then there are all the other reasons that the Editor reports, Supra and that are in the letter objecting to the DHS's proposal.

The only thing that could be worth all of these problems and evils is a reasonable probability of preventing harm to our people and/or our property. Yet, that reasonable probability can exist only where there is some cause for requiring a non-citizen to provide his login credentials and/or surrender his computing devices. Otherwise, our government will simply be wasting resources in the hope of luckily discovering some useful intelligence. The DHS might as well buy a lottery ticket and have just as much likelihood of acquiring any useful intelligence from its proposal.

It is much better law enforcement and intelligence to narrow the odds to favor DHS by having some reasonable cause for seizing a non-citizen's login credentials and/or his computing device, than to try to seize and search every non-citizens logon credentials and/or devices.


So much for Customs and Border Protection (CBP) officials to protect United States citizens and to target only the "bad guys" traveling from selective Muslim-majority countries:

Muhammad Ali Jr. Detained By Immigration Officials At Florida Airport

Simply, it questions other DHS statements about who they claim to be targeting.


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