Privacy and Free Speech in the Age of the Ever-Present Border
Viv Daniel
I. Introduction and Legal Background
On his first day in office, President Trump signed Executive Order 1461 (EO 1461), titled “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats.”[1] The Order, as the name might suggest, directs executive agencies to coordinate to enhance screening for foreign nationals coming to, or living within, the United States.[2] The Order instructs these agencies to ensure that non-citizens “are vetted and screened to the maximum degree possible.”[3]
To enforce the provisions of the Order, U.S. Citizenship and Immigration Services (USCIS) has put forward a proposed rule, with comments open until May 5th, to require non-citizens to disclose all of their social media usernames when filling out forms to access immigration benefits.[4] USCIS says it will then use this information to enhance identity verification, vet and screen for national security, and conduct generalized immigration inspections under its purview.[5]
This is not the first time something like this has happened. In 2019 under the previous Trump administration, Visa applicants were required to register all recent social media accounts with the government as part of the application,[6] a rule which was upheld when a District Judge for the District of Columbia dismissed a case challenging it.[7]
President Trump vests EO 1461 in his executive authority under the Immigration and Nationality Act (INA).[8] The Act, passed in 1952, was heavily amended in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to retroactively make harsher the immigration consequences of certain conduct.[9] Although terrorism as-such was not implicated in the act, the update to the INA was partially motivated by a need to respond to the 1993 World Trade Center Bombings, and violent and conspiratorial conduct which could constitute terrorism was covered by the act.[10]
Although IIRIRA drastically expanded the number of deportable immigrants in the U.S. overnight, subjecting many non-citizens to removal proceedings over minor infractions committed decades ago,[11] the act did not go so far as to explicitly punish noncitizens for their free speech.[12] The executive authority now claimed under the Act to monitor social media, however, aligns with a troubling trend which may change this norm.
II. First Amendment and privacy implications
In the wake of Green Card holder Mahmoud Khalil’s immigration detention after the Columbia Master’s student served as a negotiator between the University’s administration and a pro-Palestine student encampment, the Trump administration has also announced that it will be monitoring noncitizens’ social media accounts for “antisemitism.”[13] This move not only clarifies what USCIS might choose to focus on after collecting the social media handles of noncitizens, but also raises serious first amendment and internet surveillance concerns more broadly where the administration is given wide leeway to define concepts like antisemitism, anti-Americanism, and national interest.
To support its plans to deport Khalil, the administration relies upon the INA’s so-called “foreign policy provision.”[14] The section of the statute provides that, “an alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.”[15]
Legal scholars have pointed out how problematic this provision is.[16] Not only does it have a constitutional vagueness issue, but it could also be applied in a way which creates ex post facto penalties by attaching immigration consequences to conduct which was not previously problematic.[17] The question here is how anyone could be expected to be on-notice that the political opinions they are expressing are seen by an administration to have “potentially serious adverse foreign policy consequences” if the previous administration did not see it this way, and if specific foreign policy goals are often shrouded in secrecy.
Additionally, this provision gives the administration immense power to determine what conduct is seriously adverse to America’s foreign policy objectives, with minimal judicial oversight compared to the government’s power to persuade.[18]
Khalil’s case, coupled with the policies behind it, presents concerning implications not only for noncitizens, but for citizens as well. For instance, the fact that Khalil’s conduct, which did not even rise to the level of occupying University buildings, has been “credibly” determined by Secretary of State Marco Rubio to have “potentially serious adverse foreign policy consequences,” means that possibly millions of American residents, citizens and noncitizens alike, who have been vocal against the administration’s foreign policy, could be deemed similarly threatening to national security. It is hard to say what this means under an administration which has even floated the idea of deporting American citizens,[19] but it is almost certain to have a chilling effect on what people – especially noncitizens – put online.
III. Privacy expectations and the ever-present border
Immigration scholars have increasingly pointed to the idea of ever-shifting invisible borders; the systems and technologies which demarcate on an ongoing basis between citizens and their rights and privileges, and those of noncitizens.[20] This border within a border is most obviously embodied in the work of ICE officers, but is increasingly taking the form of surveillance technologies and digital data collection.[21]
An international border is the space in day-to-day life where an individual has the least reasonable expectation of privacy, even as a citizen. This has long been the case, but the potentially arbitrary consequences of this fact have similarly become more salient under our current administration. Take, for instance, the case of a French academic who was recently refused entry into the United States when border agents found texts on his phone critical of the Trump administration’s policies around scientific research.[22]
While many of us submit to a temporary deficit in privacy rights while crossing our nation’s borders, this deficit is no longer temporary when internal invisible borders are ever shifting and ever-present.
IV. Data sharing across the Federal Government
President Trump has signed two executive orders enhancing data sharing between executive agencies. One of them is EO 1461, pursuant to which noncitizens will be required to list their social media accounts to access immigration benefits.[23] The other is Executive Order 14243: Stopping Waste, Fraud, and Abuse by Eliminating Information Silos (“EO 14243”), signed on March 30th, 2025.[24] EO 14243 appears to be in service of DOGE’s push for increased data access, and similarly seeks to increase data sharing between agencies “to the extent consistent with law.”[25]
“To the extent consistent with law” may prove to be a bit of a roadblock for the administration, because the Privacy Act of 1974 “limits the collection, storage, and sharing of personally identifiable information about U.S. citizens and permanent residents” – including, as relevant to USCIS’s proposed rule, social media account data.[26] The Act also bars, in most circumstances, the maintenance of records about an individual’s exercise of their First Amendment right to freedom of expression.[27] These protections, however, are constrained by the statute’s exception for state conduct “within the scope of an authorized law enforcement activity.”[28] This exception creates a space which could be exploited to maintain data on actions and opinions targeted by such activity.
V. Conclusion
It is unclear, at this point, how these Executive Orders, statutes, and administrative rules will interact with one another moving forward. However, the current administration has proven itself enthusiastic about going after those who criticize its policies[29] and about removing constraints to data sharing within the executive branch.[30] Even the perception of an increased lack of privacy by those residing in the United States is likely to have a chilling effect on discourse under an administration with an increasingly novel concept of who does and does not deserve citizenship,[31] or even to remain in the country. Like its policy of causing panic amongst noncitizens to spur on self-deportation,[32] encouraging self-censorship may well have been part of the plan.
References
[1] Exec. Order No. 1461, 90 Fed. Reg. 8451 (Jan. 20, 2025).
[2] Id.
[3] Id.
[4] Agency Information Collection Activities; New Collection: Generic Clearance for the Collection of Social Media Identifier(s) on Immigration Forms, 90 Fed. Reg. 11324 (proposed Mar. 3, 2025).
[5] Id.
[6] Sophia Cope & Saira Hussain, Federal Judge Upholds State Department Rule Requiring Visa Applicants to Disclose Social Media Information, EFF (Sept. 12, 2023), https://www.eff.org/deeplinks/2023/09/federal-judge-upholds-state-department-rule-requiring-visa-applicants-disclose.
[7] Doc Society v. Blinken, No. CV 19-3632 (TJK), 2023 WL 5174304 (D.C. Cir. Aug. 11, 2023).
[8] Supra, note 1.
[9] See Dawn M. Johnson, AEDPA and the IIRIRA: Treating Misdemeanors as Felonies for Immigration Purposes, 27 J. Legis. 477, 483 (2001) (“Since the INA’s definitions of ‘aggravated felony’ and ‘conviction’ were expanded by the AEDPA and the IIRIRA, more LPRs are subject to removal today than before the acts became effective in 1997.”).
[10] Muzaffar Chishti & Jessica Bolter, Two Decades after 9/11, National Security Focus Still Dominates U.S. Immigration System, Migration Policy Institute (Sept. 22, 2021), https://www.migrationpolicy.org/article/two-decades-after-sept-11-immigration-national-security.
[11] See, e.g., Immigrants Face Deportation for Old Crimes Under New Law, Chicago Tribune (Oct. 12, 1997, 1:00AM) https://www.chicagotribune.com/1997/10/12/immigrants-face-deportation-for-old-crimes-under-new-laws/.
[12] See 8 USC 1182(a)(3)(C)(ii).
[13] DHS to Begin Screening Aliens’ Social Media Activity for Antisemitism, USCIS (Apr. 9, 2025), https://www.uscis.gov/newsroom/news-releases/dhs-to-begin-screening-aliens-social-media-activity-for-antisemitism.
[14]See 8 USC 1182(a)(3)(C)(i).
[15] Id.
[16] See Unsettled: Immigration in Turbulent Times: Episode 2: The Khalil Case and the Constitution, Zolberg Institute on Migration and Mobility (Mar. 29, 2025) (downloaded using Spotify).
[17] Id at 17:00.
[18] Jonah E. Bromwich, Immigration Judge Rules Khalil Can Be Deported, but Legal Hurdles Remain, The New York Times (Apr. 11, 2025), https://www.nytimes.com/2025/04/11/nyregion/khalil-jena-deportation-ruling.html (“‘The department has met its burden to establish removability by clear and convincing evidence,’ Judge Comans said toward the end of a hearing…” where “clear and convincing evidence” seems to constitute only Secretary of State Marco Rubio’s word.).
[19] Brian Mann, ‘Homegrowns Are Next’: Trump Hopes to Deport and Jail U.S. Citizens Abroad, NPR (Apr. 16, 2025), https://www.npr.org/2025/04/16/nx-s1-5366178/trump-deport-jail-u-s-citizens-homegrowns-el-salvador.
[20] See e.g., Stefan Le Courant, Living Under Threat: The Undocumented and the State (Seuil, 2022); Resisting Borders and Technologies of Violence (Mizue Aizeki et al. eds., 2024).
[21] Aizeki, supra note 20, at 13-14.
[22] Robert Mackey, French Scientist Denied US Entry After Phone Messages Critical of Trump Found, The Guardian (Mar. 19, 2025), https://www.theguardian.com/us-news/2025/mar/19/trump-musk-french-scientist-detained.
[23] See supra, note 4.
[24] Exec. Order No. 14243, 90 Fed. Reg. 13681 (Mar. 20, 2025).
[25] Id.
[26] Rachel Levinson-Waldman et al., Social Media Surveillance by the U.S. Government, Brennan Center for Justice (Jan. 7, 2022), https://www.brennancenter.org/our-work/research-reports/social-media-surveillance-us-government. See also 5 U.S.C. 552a(a)(2); 5 U.S.C. 552a(e).
[27] Id.
[28] 5 U.S.C. § 552a(e)(7).
[29] See e.g., Josh Gerstein, Trump is Already Delivering on his Promise to go After the Press, Politico (Dec. 17, 2024), https://www.politico.com/news/2024/12/17/media-lawyers-trump-lawsuits-fears-00194938; Brendon Drenon, Why Has Trump Revoked Hundreds of International Student Visas?, BBC (Apr. 9, 2025), https://www.bbc.com/news/articles/cg411rrnkkko.
[30] See supra note 1; supra note 23.
[31] Exec. Order No. 14160, 90 Fed. Reg. 8449 (Jan. 20, 2025).
[32] See e.g., Should I Stay or Go? Immigrants Across the U.S. Consider Self-Deportation, NPR (Apr. 14, 2025), https://www.npr.org/transcripts/nx-s1-5323918.
