Immigration Agents Legally Can't Look at Visa Applicants' Social Media, May Miss Obvious Evidence Of Radicalization

Immigration officials are forbidden, by policy, from looking at the social media presence of visa applicants, a policy that may have allowed San Bernadino shooter Tashfeen Malik to get a visa to enter the U.S. despite evidence of radicalization on her Facebook profile, ABC News is reporting.

Congress is demanding to know how Pakistan-born Tashfeen Malik, wife of San Bernardino shooter Syed Rizwan Farook, managed to get into the United States despite what the FBI says is an "extensive" history of messages posted on social media about jihad and martyrdom. Senator Charles Schumer, D-NY, expressed outrage that no one thought to look at her social media presence.

"Had they checked out Tashfeen Malik, maybe those people in San Bernardino would be alive."

As it turns out, looking at the social media presence of visa applicants is forbidden because doing so may violate their civil liberties. It is not clear how that policy has been in place, but John Cohen, a former high-ranking Department of Homeland Security official and now a consultant for ABC News, says that the matter was last brought up for review in 2014.

"[Prior to 2014] immigration officials were not allowed to use or review social media as part of the screening process."

However, immigration officials asked to be allowed to look at visa applicants' social media presence, believing that doing so would better allow them to prevent potential terrorists from entering.

"Immigration, security, law enforcement officials recognized at the time that it was important to more extensively review public social media postings because they offered potential insights into whether somebody was an extremist or potentially connected to a terrorist organization or a supporter of the movement."

Their request was denied, said Cohen, because of concerns that looking at social media postings would violate the applicants' privacy and, further, create a public image problem for the DHS - which had already suffered a massive public relations backlash following NSA whistleblower Ed Snowden's revelations about the agency's data collection practices.

"The primary concern was that it would be viewed negatively if it was disclosed publicly and there were concerns that it would be embarrassing. It was primarily a question of optics. There were concerns from a privacy and civil liberties perspective that while this was not illegal, that it would be viewed negatively if it was disclosed publicly."

visa social media
Department of Homeland Security. [Image via Shutterstock/ Mark Van Scyoc]

Whether or not allowing agents to look at visa applicants' social media posts would have caught Tashfeen Malik is a matter of dispute. The San Bernardino shooter used a fake name in her social media posts about jihad and martyrdom. Even if immigration officials conducted an intensive review of social media posts in her name, it's not clear if they would have found anything.

Last week, according to Fox News, Senator Dianne Feinstein, D-CA, and Senator Richard Burr, R-NC, introduced legislation that would require social media companies, such as Facebook and Twitter, to report "terrorist activities" - such as recruiting terrorists or planning attacks - to law enforcement.

Tech industry advocates oppose that plan, however, saying that doing so would put social media companies at a huge risk of legal liability, would stifle free speech, and would overwhelm law enforcement with so many possible indications of terrorist activity that it would be impossible to weed out real terrorist threats. And, of course, a potential terrorist would merely need to use a fake name to keep himself/herself from being associated with the threats.

Do you think immigration officials should be allowed to look at visa applicants' social media postings? Share your thoughts in the comments below.

[Photo by U.S. Customs and Border Protection/AP, File]