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DHS and privacy- new rules, old practices.

DHS recently updated their information-gathering and recordkeeping practices. This notice has received a lot of publicity because it gives the agency very broad powers- both in terms of the information they can collect, and who they can investigate.

DHS can investigate not only non-citizens, but also attorneys, naturalized citizens, visa petitioners, and the "relatives and associates" of others being investigated. Also, the information can include things like social media activity and internet searches.

Despite the recent attention, however, DHS has long had many of these powers, though they have received less attention previously. The recent rules are not entirely new, but expand a list that has been in existence for many years. The prior rules, in fact, already allowed investigation of the same people listed above. Similarly, while it has not been listed as a source before, DHS has freely acknowledged that it investigates social media and other internet presence of foreign nationals in benefit applications.

Also, the new rules explicitly include record-keeping on internet search results. From the rule, it's unclear if this means the result of DHS searches on the subject, or if they will attempt to obtain searches by the subject. The rule also includes data sharing agreements as a source of information.

Search providers such as Google, however, explicitly acknowledge that they receive requests for user information for agencies and in investigations of regulatory violations, though they may require a warrant or subpoena.

Ultimately, the rules serve as a reminder that any foreign national, citizen, petitioner, attorney, or the "relative or associate" of a foreign national should be aware that DHS may potentially be investigating them. There are, however, some key steps people can take to protect themselves.

Those who may be investigated by DHS should do internet searches for themselves to determine what is publicly available. This is essential for those applying for immigration benefits, especially if they have old information about jobs and relationships on profiles they have not updated in a long time. In some cases, it may be better to simply end one's social media presence.

Those applying for immigration benefits should ensure that all accounts reflect your current address and marital status, if appropriate. DHS has long used commercial searches of publicly available information, similar to a credit check, and if it locates a bank or other accounts reflecting different information that what has been provided, that could lead to further investigation.

Also, if immigration authorities deny a petition or application based on information from an investigation, it may be possible to contest that decision. Applicants generally have a right to review derogatory information being used against them, and may be able to contest introduction of unlawfully obtained records in removal proceedings. (One key qualification is that these rules may not always apply with national security and terrorism issues. How to address investigations and negative evidence in these circumstances is very complex, depends on the specific situation and is beyond the scope of this post.)

Finally, people who believe they have been investigated may be able view their files through the Freedom Of Information Act ("FOIA"). While non-citizens routinely do this, it may be wise for others who may have DHS files to do so as well.

In many ways, therefore, DHS's new rules continue existing practices more than establish changes. Given that they have drawn more attention to how much DHS can investigate, however, the expanded rules may have the unintended effect of motivating people to better protect themselves.

Bean + Lloyd, LLP is an immigration law firm in Oakland, California

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