‘Extreme Vetting’ Also Threatens Privacy of Americans

Noah Feldman,

The “extreme vetting” proposals floated this week by Homeland Security Secretary John Kelly include the idea of making visitors to the U.S. open their phones and disclose their contacts, passwords and social media handles to immigration authorities. This might potentially be constitutional, because visitors outside the U.S. don’t necessarily have privacy protection. But it’s a serious threat to Americans’ constitutional rights anyway. The intrusion into core privacy of visa applicants through the fiction of consent can easily be extended to U.S. citizens in a wide range of situations.

There’s a theoretical legal basis for the vetting proposals: because there’s no inherent legal or constitutional right for foreigners (other than lawful permanent residents) to visit the U.S., there’s nothing wrong with conditioning entry on disclosure of private information.

I’m not sure this argument holds water. It’s true that non-Americans outside the U.S. don’t always have constitutional rights. But it doesn’t necessarily follow that the government could impose every conceivable condition on their entry, without constitutional limits.

For example, could the government tell foreigners seeking visas that if they enter the U.S., they must agree to discriminate on the basis of race while here? Surely not — because the government would itself be discriminating through that condition.

What if the government said you could get a visa only if you agree to racially discriminate before entering the country? That, too, seems highly problematic — even if it doesn’t lead to discrimination against Americans in the U.S.

Nor, I think, could the government tell foreigners that they must convert to Christianity while abroad in order to get a visa. That would violate the Constitution’s establishment clause and almost certainly the free exercise clause as well. It’s more coercive even than saying that only Christians may enter the country.

Free speech raises similar questions. The government may presumably exclude certain people on the ground that it hates their views. But it seems doubtful that the government could tell foreigners that they can enter the U.S. only on the condition that they promise to hand out pro-Trump leaflets on the street corners, or refrain from criticizing the Republican Party when they’ve gone back home. That would amount to prohibited viewpoint discrimination, I think — even if all the speech took place outside the U.S.

The upshot is that, even when the subject is a foreigner who wants to visit the U.S., the government probably can’t condition entry on some actions that would violate the structural protections in the U.S. Constitution.

So there’s some reason to think that making visitors forfeit privacy rights is constitutionally worrisome. If you have to give up your privacy permanently as a condition of entry, then the U.S. government is going to be systematically acting as Big Brother.

The intuition underlying these examples is twofold. Part is the idea that there are some governmental motives that are always constitutionally impermissible, no matter where the government is acting. Race discrimination, religious coercion and coerced speech against conscience probably qualify. The destruction of privacy is likely on the same level.

The other core element of the intuition is that certain actions taken with respect to foreigners threaten the constitutional rights of U.S. citizens. A law requiring visa holders to discriminate or to support one political party would affect Americans directly, even if it didn’t include them.

As it turns out, the same may be true of privacy at the border. Under long-standing Supreme Court precedent, the right against warrantless search and seizure doesn’t apply when you’re entering or leaving the country. The logic goes back to a law passed by the first Congress, which was intended to prevent the flow of contraband. Apparently relying on this exception, the Department of Homeland Security has occasionally tried to make American journalists share their electronic contacts when entering the country.1

That practice hasn’t become widespread. But it seems probable that it would if Homeland Security began requiring similar electronic searches of foreigners. After all, if foreigners can be made to give up their privacy rights as a condition of entering the U.S., why not extend the logic to say that citizens should give up the same rights in exchange for the privilege of leaving the country and coming back?

In the end, even if the true motive for extreme vetting is protecting the U.S. against terrorists, that laudable motive comes with constitutional limits. Those limits should take into account the normalization of conduct that would violate the core values of U.S. government — and threaten the rights of Americans.