This Supreme Court case could criminalize online immigration activism.

When the Trump administration announced plans to phase out Deferred Action for Childhood Arrivals in 2017 — the federal program which offers renewable legal status to undocumented immigrant children —  Twitter blew up overnight with hashtags like #HereToStay, #HomeIsHere and #DefendDACA. Three years later, discussions around immigration continue to gain visibility online: Photos and videos of border detention centers go viral on social media, while immigration activists and organizations alike use Twitter to show solidarity and mobilize supporters with hashtags like #NoBusinessWithICE, #CloseTheCamps, and #AbolishICE.

But after a Supreme Court hearing on Feb. 25, this type of online political activism, which is currently protected by the First Amendment, could become a criminal liability for those who advocate for undocumented immigrants. 

The case, U.S. v. Sineneng-Smith, originates from a federal district court in California where a federal grand jury convicted immigration consultant Evelyn Sineneng-Smith for fraud after she told her undocumented clients they could maintain legal status under a program she knew had expired. The 9th U.S. Circuit Court of Appeals did little to overturn that conviction. What it did overturn, however, was a separate conviction that found Sineneng-Smith guilty under a 1986 federal law that makes it a crime to “encourage” and “induce” known undocumented immigrants to reside in the U.S. And it did so on First Amendment grounds.

But the government didn’t give up on that conviction just then. It filed an appeal to the Supreme Court, which, in October of 2019, granted writ of certiorari to listen to the case.

Now, for the first time, the Supreme Court is determining what the words “encourage” and “induce” mean in the context of this 1986 law, and whether the ambiguous nature of those two words would constitute an interpretation so broad that it criminalizes or discourages legal political speech the First Amendment is otherwise designed to protect. 

Who’s at risk: Grassroots immigration advocates

According to Judge A. Wallace Tashima’s majority opinion for the appeals court, the current 1986 statute could criminalize individuals and organizations engaging in “pure advocacy on a hotly debated issue in our society” on social media.

But it could also apply to those whose sole mission is to provide information, education, and work opportunities for undocumented immigrants, according to Saira Hussain, staff attorney for Electronic Frontier Foundation. That includes the likes of Sam Yu, communications director for the National Korean-American Service & Education Consortium, who said they use social media daily to relay information on immigration policy changes, ICE raid alerts, know-your-right training, and calls to action for hard-to-reach populations. 

“One of the things that social media has done is tremendously lowering the potential cost of getting organized, simply because of the ease of communication,” said Joshua Tucker, who co-directs the Center for Social Media and Politics and is professor of politics at NYU. “But if people have to wonder whether they’re going to get arrested for activism online, that raises the expected cost.”

The idea that activists can be arrested for something as simple as a tweet or a Facebook post, he added, is something that normally happens in authoritarian regimes — not democratic governments.

This fear is especially resonant for grassroots, community-based organizations with “extremely limited resources,” said Niyati Shah, assistant director of legal advocacy at Asian Americans Advancing Justice, a non-profit legal aid and civil rights organization. Whereas larger organizations may be able to easily access legal experts who can help navigate the restrictions of the statute, smaller organizations may not have the resources to do the same.

And that jeopardizes the work of activists like Maru Mora-Villalpando, founder of immigration consultancy Latino Advocacy. 

“We have to [use social media] because, for example, we notice that Facebook is one type of audience, Instagram is another one, and Twitter is another one,” said Mora-Villalpando. “And again, we have no money. So we have to use these platforms to reach as many different communities as possible.” 

What it’ll probably do: Muzzle protected political speech online

Seeing as how immigrant rights activists and organizations are increasingly taking their work online, digital rights experts like Hussain are concerned about how this Supreme Court case might also encourage internet platforms to stifle advocacy. 

Social media platforms that do not wish to be held criminally liable as publishers, aiders, or abetters, too, are incentivized to refrain from hosting such speech — even censoring them altogether, according to Hussain. 

This is because social media platforms are not immune from federal criminal enforcement, even though laws like section 230 of the Communication Decency Act generally protect them from being held liable for the user content they host.

For example, Hussain points to the Fight Online Sex Trafficking Act, which holds online platforms liable for “facilitating” and “promoting” prostitution. In theory, it attempts to curb online sex work; in practice, it often censors speech that shouldn’t be restricted under the law. 

“We’re representing a massage therapist who used to advertise his services on Craigslist. And, although he does not engage in any sort of sex work, his massage advertisements were being removed from Craigslist under the law because they were concerned about facing liability,” Hussain said. “What you see is how broadly the law sweeps and how the intermediaries oftentimes cannot differentiate legal from illegal work.”

The fact that most social media platforms often rely on contractors for content moderation doesn’t help, either. Hussain said protected speech “often ends up getting silenced” on social media platforms because of the sheer amount of content contractors have to go through and because they are often uncertain about what is and isn’t legal. It’s because of this content moderation flaw that activists of color who use Facebook for racial justice advocacy find their postings unfairly censored.

How it might be enforced: Internet surveillance

Apart from the possibility of censorship, the potential use of surveillance technology to enforce the 1986 statute is also a cause for concern, especially since a number of tech companies now partner with law enforcement and immigration agencies.

Albert Fox Cahn, founder of the Surveillance Technology Oversight Project, said there have already been “numerous” other instances where internet surveillance has been used to target activists. He pointed to the fact that law enforcement agencies have issued search warrants for Facebook records detailing the interactions of those who protested Trump’s inauguration in 2017 and students who participated in anti-austerity protests at the University of Puerto Rico.

An ACLU finding, too, documented how Facebook, Twitter, and Instagram handed over data to a surveillance software company used by law enforcement to monitor Black Lives Matter activists and protestors. Other instances of internet surveillance against racial justice activists are well-documented.

For activists like Mora-Villalpando, the threat of social media surveillance is all too real. In 2014, she’d met with the Department of Homeland Security as a known undocumented immigrant rights activist and lobbyist. But she only received a notice to appear in immigration court after her online activism came to the attention of Immigration and Customs Enforcement in 2017, according to documents obtained via the Freedom of Information Act.

“They knew of me. They would’ve come after me already. …I believe it was politically motivated because the Trump administration is really trying to stop dissent,” Mora-Villalpando said. “ICE is just a tool and they’re using what’s dangerous for [activists], which is online activity. I’m one of over a million people now waiting for another hearing. I don’t know what they’re going to come up with next.” 

But such discriminatory policing is only made easier by AI-assisted surveillance technology, Cahn added. For example, data analytics company Palantir has been helping ICE profile and arrest undocumented immigrants, and controversial facial-recognition software company Clearview AI has been providing its social media-scraping technology to agencies like the DHS.

Already, the DHS, ICE, and Customs and Border Protection have established “Operation Secure Line,” which uses social media to create a database for tracking and targeting immigration activists, journalists, attorneys, and others tied to the migrant caravan in 2018.

Then there’s the fact that the DHS uses a “shared social media screening service” to collect and analyze social media accounts and posts of non-citizens and aspiring immigrants — i.e., refugees, asylum seekers, and current visa holders — which often leads to anti-Muslim bias and unfounded entry denials.

If the statute currently debated by the Supreme Court is upheld, Cahn said he expects law enforcement will target communities of color that already face discriminatory policing.

So, what’s next?

The Supreme Court heard oral arguments for the case on Tuesday. While the case is pending, advocates like Mora-Villalpando and Yu will continue to use social media to rally support around their causes.

It is uncertain when the justices will arrive at a decision, but one thing is clear: Freedom of speech generally receives bipartisan protection, even when the justices disagree on what constitutes “speech.”

Erin Busby, who is a law professor and co-directs the Supreme Court Clinic at the University of Texas at Austin, said “everyone” agrees that protection for political speech makes up the bedrock of the First Amendment. And that applies not just to speech, but also to the actions taken to express them, she added.

“You can go all the way to the founders who basically said that if we’re going to rest sovereignty in the people rather than a monarchy, then essentially people need to be able to hold their rulers accountable, which will often involve people saying things that the rulers do not like,” Busby said.

But Cahn sees how the government may be “repeating mistakes of the past” with this case.

“In 1927, they were talking about the threat that came from speech supporting communism and they viewed that as such an extreme threat that they needed to crack down on the openness of free society. And I see now how all these ways in which new forms of online speech get treated as more dangerous because they are more novel,” Cahn said. “…When we try to suppress speech that makes us uncomfortable, we hurt people who are the most vulnerable.”