The government policy that prohibits immigration officials from reviewing social media messages of visa applicants is under fire again.

Most Americans didn’t even know such a policy existed, that it had been questioned by John Cohen, a former acting under-secretary at the Department of Homeland Security two years ago or that the recent San Bernardino shootings may have been prevented had the U.S. been allowed to include screening of Tashfeen Malik’s social media as part of her background check.

What happened?

In May 2014, Pakistani-born Tashfeen Malik was granted a U.S. visa. This despite several very troubling red flags. 1. Malik provided false information on her visa application. 2. Malik’s husband, Syed Rizwan Farook, was reportedly in contact with several suspected jihadists who had attracted the Feds’ attention. 3. Malik passed three background checks by immigration officials, but none of them uncovered that she talked openly on social media about her desire to participate in violent jihad and that she and her husband had pledged allegiance to ISIS.

On December 2, 2015 Malik and her husband, murdered 14 people and injured 22 at a holiday party in San Bernardino, CA, both later died in a police shootout. It was the deadliest terrorist attack on American soil since September 11, 2001.

Despite the DHS’ Cohen’s efforts and officials from the United States Citizenship and Immigration Services (USCIS) and the U.S. Immigration and Customs Enforcement (ICE)–which also pressed for a change in policy in 2014- the primary concern for the Obama Administration was that reviewing social media of foreign immigrants would be an “invasion of privacy.” No changes were made and the tragedy in California unfolded like a scene from a horror movie.

What happens now?

Late last month, The Washington Post reported that the couple’s messages were only private, but other reports sustain that Malik’s public social media rants went back years. Regardless, the disaster has created a great deal of interest in whether or not social media should be used in background checks.

On December 22, U.S. Senators Joe Manchin (D-WV) and Mark Kirk (R-IL) sent a letter to President Obama asking him to include the vetting of social media accounts as a part of background checks. It read in part, “ in an era where a growing number of communications takes place on Internet platforms, it would be foolish to ignore this goldmine of information. “

 

Amid the controversy with visa applicants, a growing number of U.S. employers have quietly been using social media as part of their background checks on prospective employees. The 2015 Annual CareerBuilder Social Media Recruitment Survey revealed that 52 percent of employers use social media sites to research job candidates, up from 39 percent in 2013. The survey also found that 35 percent of employers were less likely to interview applicants they could not find online.

 

While the call for widespread social media use in background checks makes all the sense in the world theoretically, it does not necessarily take into account the practical and financial realities of scouring the Internet looking for useable data. The scope of material is overwhelming, not everything on the Internet has identifiers and anyone can easily operate under a pseudonym or false name or put privacy settings in place. Even if accurate information is visible, there are no foolproof techniques for review of flagged words or terms. If software is used to find key words, it can result in false positives. Thus, armies of people would be needed to review the postings to determine if someone is using words associated with terrorism in a benign discussion or one with more nefarious meaning.

 

Likewise, with regards to employment, using social media in background checks isn’t a panacea for the hiring process. Employers are discovering that just because information exists online and that they might be able to access it, that doesn’t mean it can legally be used.

 

In some cases, the only way for the government to obtain information on persons of interest is to go through back doors—similar to the arrangement they had with Verizon. Remember Edward Snowden? Nobody wants their privacy to be invaded like that, but they want the bad guys caught. So screening social media makes sense. But the monumental hurdles to cross to gather that information may make it impossible for every visa applicant. What about those applicants such as Tashfeen Malik, however, who provided false information on her visa application, whose husband had known ties with terrorists and who flaunted her terrorist leanings on Facebook? Don’t cases like those demand a little extra sleuth work? Yes.