Immigration

Facebook Check Wouldn't Have Stopped San Bernardino Terrorists, No Matter What GOP Candidates Say

Did an Obama-administration policy prevent the feds from looking at Tashfeen Malik's social-media profiles? Yes and no.

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During Tuesday night's Republican presidential debates, several candidates referenced an alleged Obama administration policy that prevents federal authorities from checking social media profiles of suspected terrorists. Said policy, they suggested, was to blame for the recent terrorist attack in San Bernardino, California. As it goes in politics, these debate statements can best be characterized as truthiness—based on actual facts but distorted for maximum blame-casting and fear-mongering potential. In actuality, only immigration officials approving visas—not federal agents investigating terrorism—were barred from social media snooping, and the policy has since been suspended. And even if authorities had checked out San Bernadino shooter Tashfeen Malik's Facebook page, it's unlikely it would have raised any red flags.  

What the candidates said: Asked about Silicon Valley's resistance to helping the FBI "crack encrypted communication from ISIS," Carly Fiorina said it wasn't about metadata but that "the bureaucratic processes that have been in place since 9/11 are woefully inadequate." She continued:  

DHS vets people by going into databases of known or suspected terrorists. And yet, we also know that ISIS is recruiting who are not in those databases. So of course, we're going to miss them. And then we now learn that DHS says, 'No, we can't check their social media.' For heaven's sakes, every parent in America is checking social media and every employer is as well, but our government can't do it. The bureaucratic procedures are so far behind. Our government has become incompetent, unresponsive, corrupt. And that incompetence, ineptitude, lack of accountability is now dangerous.

Texas Sen. Ted Cruz disputed Fiorina's characterization slightly, saying "it's not a lack of competence that is preventing the Obama administration from stopping these attacks" but "political correctness." 

We didn't monitor the Facebook posting of the female San Bernardino terrorist because the Obama DHS thought it would be inappropriate. She made a public call to jihad, and they didn't target it. The Tsarnaev brothers, the elder brother made a public call to jihad and the Obama administration didn't target it. … The problem is because of political correctness, the Obama administration, like a lot of folks here, want to search everyone's cell phones and e-mails and not focus on the bad guys. And political correctness is killing people.

During the undercard debate, former Arkansas Gov. Mike Huckabee used his opening remarks to talk about how Americans were "angry" and "scared," in part because "they realize that our government, who promises that it can vet people and is begging us to approve bringing 10,000 Syrian refugees into this country, can't even catch somebody after a third background check, who had posted things on social media clearly indicating she wanted to kill Americans."

Rick Santorum said he agreed with Huckabee "that we should in fact be looking at people's social media posts. That's just common sense." 

Former New York Gov. George Pataki had the most to say on the subject, telling Wolf Blitzer: 

When that murderer came from Pakistan to San Bernardino and committed those atrocious crimes just a few weeks ago, she applied for a visa. She had posted on social media jihadist messages. Because this administration is so politically correct, they have a rule that they cannot look at social media postings of people applying to come to the United States. That is utterly absurd. One of the things we must do, the next president must do is get rid of that law and make sure we do everything in our power to find out if someone poses a threat to our existence here.

Later, asked about accepting Syrian refugees, Pataki alleged that the Obama administration "vetted the woman who carried out the attacks in San Bernardino and never found out that she had a false address and was on social media talking about radical Jihad." (His answer on accepting any Syrian refugees, by the way, was "no.") 

What they got right: Earlier this week, ABC News reported on a "secret U.S. policy" that blocked immigration officials from looking at the social media posts of visa applicants. Agents working for U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) "were not allowed to use or review social media as part of the screening process," John Cohen, a former acting under-secretary for intelligence and analysis with DHS, told ABC News.

It is unclear when this policy went into effect, or who authorized it, but its demise began in late 2014, when DHS "began three pilot programs to include social media in vetting." Tashfeen Malik—the Pakistani immigrant who went on a killing spree with her husband in San Bernardino, California, earlier this month—received a U.S. visa in May 2014, so DHS probably did not investigate her online presence. 

The whole truth: It's unlikely that looking at Malik's social media accounts as part of the visa-screening process would have yielded any different results. The FBI is now reporting that Malik and her husband, Syed Rizwan Farook, never publicly expressed any support for "jihad and matyrdom" on social media, though officials did turn up such sentiments in the couple's private communications. This means that Cruz, Pataki, et al. are simply wrong that Malik made ISIS-supportive statements that could have been targeted by federal agents, either during the visa screening process or subsequently. 

If Malik had made such statements publicly on Facebook (as rumor originally had it), however, there would have been nothing preventing federal agents from looking into them. Contra the implications of Republican candidates, it is federal immigration officials and only immigration officials who were instructed not to access social-media profiles. There is nothing stopping FBI, CIA, Drug Enforcement Administration, National Security Agency, Internal Revenue Service, or non-immigration DHS agents from tuning into the socia media activity of immigrants or anyone else they suspect of criminal activity. 

The FBI, in fact, uses Facebook all the time in its investigations (as do municipal police departments such as the NYPD). "U.S. law enforcement agents are … going undercover with false online profiles to communicate with suspects and gather private information," the AP reported in 2010 after the Electronic Frontier Foundation obtained an internal Justice Department document about the practice. The feds routinely employ such tactics in investigating everything from gang activity to terrorism, drug sales to sex trafficking. In one 2012 survey, four out of five federal, state, and local law-enforcement agents said they use social media for intelligence-gathering during investigations. (Note that we're not talking about collecting metadata or compelling companies to turn over information but good, old-fashioned subterfuge and digital legwork.) 

One last point of contention: Whatever the shortcomings of prohibiting immigration agents from looking at visa applicants' online accounts, the policy seems rooted more in civil-liberties concerns than "political correctness." While Cohen called the policy "primarily a question of optics," he also stated that "there were concerns from a privacy and civil liberties perspective." Which makes sense: opening up social media profiles to immigration-agent scrutiny may be worth it from a security perspective, but it does also open up legitimate questions about how agents could legally obtain access, what sorts of posts should be disqualifying for visas, etc. While I'm suspicious of why an administration little concerned with privacy and civil liberties should suddenly find them so compelling, dismissing these concerns here as mere "political correctness" is a mistake.

For what it's worth, DHS spokeswoman Marsha Catron told ABC News that the department is "actively considering additional ways to incorporate the use of social media review in its various vetting programs." But it "will continue to ensure that any use of social media in its vetting program is consistent with current law and appropriately takes into account civil rights and civil liberties and privacy protections," she said.