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Noah Feldman

'Extreme Vetting' Also Threatens Privacy of Americans

Once the government starts asking visitors for their phone contacts and passwords, where will it stop?
Your passwords, please.

Your passwords, please.

Photographer: Erik S. Lesser/Getty Images

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.