Klaudios Mustakas – Pace Law Firm: There’s some furious typing going on right now as social media keyboard warriors come to grips with the latest immigration/security story out of the US.
According to reports, Homeland Security Chief John F. Kelly has been kicking around the idea of asking refugees and visa applicants for their social media passwords when they arrive at a customs desk:
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.”…
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.
It should be noted that the headline of the story references “visitors to the US.” This is a bit misleading. Kelly was talking about asylum-seekers and visa holders from the seven countries placed on Trump’s travel ban, not all visitors from around the world.
In any case, the online reaction has been very negative, both north and south of the border. But it’s probably worth pointing out that that this isn’t an entirely new concept. In the US, the Obama administration also mulled over a similar idea but never put it into practice. In Canada, social media snooping has also made recent headlines.
Immigration And Social Media
My colleague Jim Metcalfe wrote the other day about an immigration official using a person’s LinkedIn profile to deduce that they weren’t being honest about their past. This resulted in the rejection of a person’s citizenship application. Indeed, that case involved a visa officer looking for exactly what John F. Kelly said to Congress here:
“When someone says, ‘I’m from this town and this was my occupation,’ [officials] essentially have to take the word of the individual,” he said. “I frankly don’t think that’s enough, certainly President Trump doesn’t think that’s enough. So we’ve got to maybe add some additional layers.”
Still, the case didn’t involve an officer asking for a password. But this one did:
A Quebec man who refused to give his smartphone password to border officials at Halifax Stanfield International Airport last year has pleaded guilty and been fined $500…
Philippon flew from the Dominican Republic to Halifax in March 2015. At the airport, he picked up his bags and headed to the customs security check.
According to an agreed statement of facts, Philippon had $5,000, two phones and traces of cocaine on his bags when he arrived in Halifax.
Canada Border Services Agency officials asked for Philippon’s smartphone and its password. He handed over his BlackBerry but refused to disclose the code to access the phone. Philippon was arrested and charged under the federal Customs Act, accused of hindering or obstructing border officials.
It would have been interesting to see how the man’s case would have turned out had he gone to court instead of pleading guilty. The guilty plea still leaves us in a grey area on the issue of legality.
Is It Constitutional?
Being told to allow access your gadgets isn’t a new thing in Canada. Neither is it odd for visa officers to check your social media profiles to see what you’ve been up to. So how long will it be until someone blends the two ideas and asks for passwords to someone’s social media accounts?
That concept hasn’t been tried yet, so its constitutionality hasn’t been tested in either the US or Canada. My guess is that it won’t be long until it is.
Klaudios Mustakas is a retired former Manager of Enforcement Operations with the Canada Border Services Agency. He travels extensively in the Middle East to counsel individuals on immigration issues.