June 5th, 2016
U.S. Customs and Border Protection
Attn: Paperwork Reduction Act Officer
Regulations and Rulings
Office of Trade
90 K Street NE.
Washington, DC 20229-1177.
I am writing in response to the notice published in Federal Register on 6/23/2016 entitled “Agency Information Collection Activities: Arrival and Departure Record (Forms I-94 and I-94W) and Electronic System for Travel Authorization”
I am responding to the question of “whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility.”
The proposed changes to the I-94W and I-94 forms, albeit small, have potentially grave ramifications to the fundamental ideals upon which the United States is founded and practically will result in no net improvement to the security of the country.
Constitutional Problems – Chilling effect on speech
In 1996, a three judge panel from the Eastern District of Pennsylvania declared the Communications Decency Act unconstitutional. Judge Dalzell, writing the opinion of court, declared: “[T]he Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion (emphasis added).”
The Internet, in its present form, is used by billions of individuals around the world to communicate with each other. Whether it is for business, pleasure, entertainment, enlightenment or political discourse, social media on the Internet is perhaps the principle forum today by which people of diverse cultures, countries and mindsets interact on a daily basis. Ostentatiously, the objective of the form change, is to identify social media profiles of visitors to the United States. The social media profiles will be reviewed and analyzed, whether by automated or manual means. Potentially, individuals whose social media profiles indicate they are in some way threatening to the United States, will be prohibited from entry, or their entry will be more closely scrutinized.
What is more likely the outcome is that
(1) Individuals with controversial writings will choose not to visit the United States, reducing the diversity of ideas and discussion on those topics (within the geographic United States).
(2) Individuals with controversial thoughts will scrutinize their social media presence and avoid discussions on those thoughts on what Judge Dalzell called “a never-ending worldwide conversation.” This will reduce the diversity of ideas and discussions on those topics (on the Internet).
The chilling effect is not just on foreign nationals but negatively affects the ability of United States citizens to listen to and discuss controversial topics with foreigners abroad. In 1965, the Supreme Court in Lamont v. Postmaster General, 381. U.S. 301 struck down section 305 of the Postal Service and Federal Employees Salary Act because it required the Postmaster General to detain foreign mailings of communist political propaganda unless the addressee affirmatively acknowledge their acceptance and desire to receive such material. The Supreme Court recognized that this would reduce the recipient’s unfettered access to constitutionally protected speech, and thus the act was unconstitutional. The courts have consistently ruled that acts of government, even when they do not have a direct prohibition on speech, but have a chilling effect, are never the less, unconstitutional. This change to form I-94 and I-94W will have a similar effect.
As to the necessity of the proposed change to the function of the agency, an unconstitutional act can never be necessary.
Practical Utility of the proposed change
Selection bias is defined as “selection of individuals, groups or data for analysis in such a way that proper randomization is not achieved, thereby ensuring that the sample obtained is not representative of the population intended to be analyzed.” The simple fact is that those attempting to enter the United States to perform terrorist acts are simply not going to list their Jihadi forum screennames on the I-94 forms. Those filling out this optional section are most likely to be people who believe the mundanity of their social presences leaves them immune from any issue with entering the U.S. This will result in three practical problems:
(1) While Facebook, Twitter and a few others constitute the biggest players in social media, there are thousands upon thousands of smaller social media sites catering to every niche, minority and social group. Further, many people maintain multiple identities on different platforms. Any collection of information will, no doubt, be incomplete.
(2) Large amounts of data from visitors who pose no threat will be collected, resulting in wasted effort and resources by the government to review that data, whether by automated or manual means.
(3) Since many of the most threatening visitors or potential visitors will provide no or sanitized information only, the most likely people that this is going to stop are those whose social media posts or connections are taken out of context or who, while not representing a threat to the U.S., have controversial views. This will result in investigatory efforts into and dealing with appeals from individuals who have wrongly denied entry. Additionally, for those that are denied entry, it will result a chilling effect and inability for those in the U.S. to interact, learn from and discuss topics with the denied party.
The net result is the proposed change is likely subject to a claim of unconstitutionality and practically will not achieved the desired ends.
R. Jason Cronk, Esq.
Florida Bar #90009