The new requirement raises concerns about privacy and free expression. "We see this as part of a larger process of high tech surveillance of immigrants and more and more people being subjected to social media screening," Adam Schwartz, an attorney with the Electronic Frontier Foundation told BuzzFeed News. "There's a growing trend at the Department of Homeland Security to be snooping on the social media of immigrants and foreigners and we think it's an invasion of privacy and deters freedom of speech."
The law will affect immigrants and U.S. citizens who communicate with immigrants in the digital space. Schwartz pointed out that it could lead people to self-censor out of fear that information they share could be misinterpreted and used against them.
Faiza Patel, co-director of the Brennan Center’s liberty and national security program, raised valid concerns that the U.S. government could use the information for "idealogical vetting" because officials will have access to social media users' personal and political views.
"The question is do we really want the government monitoring political views?" Patel said. "Social media may not be able to predict violence but it can certainly tell you a lot about a person's political and religious views."
Alex Nowrasteh, an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity, said the new rule may stem from the San Bernadino shooting in late 2015. One of the shooters, Tashfeen Malik, used social media to advocate jihad messages under a pseudonym.
"This is another example of the government changing security protocols based on a previous incident that will impose an enormous cost and that is of dubious value for the future," Nowrasteh said. "Social media has been used in immigration courts for years but there’s little evidence that it’s helped with visa vetting."
Despite the fact that there's no evidence that social media monitoring is reliable, the Trump administration has indicated it supports measures like this one.
"Yesterday at our briefing with the President-Elect’s Landing Team, one of the things they mentioned they’d be interested in seeing was guidance that we use regarding social media use and when/how we can use social media," a senior USCIS adviser wrote in December.
Three refugee pilot programs have screened the social media use of refugees. Although they were able to locate the social media accounts of refugees, none of the information found showed links to national security threats — even amongst applicants who were ultimately determined to pose a national security threat.
"The fact that information gleamed from Facebook or Instagram or other social media networks might not be reliable doesn't mean that it will preclude DHS from using it as a basis for excluding people from the United States," said César Cuauhtémoc García Hernández, assistant professor at the University of Denver Sturm College of Law.
"Having government oversight with the potential for life changing adverse consequences when it comes to social media use by prospective immigrants is a pretty direct affront to the longstanding promotion of free speech that's at the core of the US constitution," Hernández added.
Refinery29 has reached out to DHS and US Citizenship and Immigration Services (USCIS) for comment.