Social Media and Online Persecution

SOCIAL MEDIA AND ONLINE PERSECUTION

LIANE M. JARVIS COOPER*

ABSTRACT

Are the targets of online harm on social media eligible for asylum under

U.S. law? A crucial consideration in answering this question is whether

online harm may be evidence of past persecution. No U.S. court has

adequately addressed this issue.

On January 11, 2021, the U.S. Departments of Homeland Security and

Justice added a new definition of persecution for the first time to their respec-

tive regulations. The new definition could be interpreted to exclude or limit

online harm as evidence of past persecution. Such an interpretation reflects

neither existing legal precedent addressing offline harms nor the realities of

online harm on social media.

This Article proposes two frameworks for addressing online harm in U.S.

asylum claims. Under one proposed framework, online harm is evidence of

overall or cumulative past persecution. Under the other framework, online

harm by itself is past persecution. Both frameworks are supported by U.S.

precedents addressing offline harms and reflect the unique and novel charac-

teristics of online harm, including its potential to amplify injury and offend

an asylum-seeker’s right to privacy and right to be forgotten.

TABLE OF CONTENTS

INTRODUCTION .........................................751

I. THE CURRENT LEGAL LANDSCAPE ........................753

A. U.S. Courts’ Approaches to Offline Persecution........753

B. New Regulatory Definition of Persecution. . .. .. .. .. .. 759

*J.D., University of Michigan Law School, 2001; A.B., Occidental College, 1998. The author has

served as an asylum officer with the U.S. Department of Homeland Security and in several attorney posi-

tions with the U.S. Department of Justice, including as Chief Regulatory Counsel and Associate General

Counsel in the Executive Office for Immigration Review’s Office of the General Counsel. The views in

this Article are solely the author’s and do not reflect those of any employers. The author would like to

thank Gil Cooper, Ellen Liebowitz, and the editors of the Georgetown Immigration Law Journal. © 2021,

Liane M. Jarvis Cooper.

749

C. U.S. Courts’ Approaches to Online Harm in Asylum Claims 760

II. UNDERSTANDING ONLINE HARM IN ASYLUM CLAIMS . . . . . . . . . . . . 763

A. Types of Online Harm ...........................763

1. Novel Harms ..............................763

2. Privacy Harms .............................766

3. Persecutory Harms under International Law. . . . .. . . 769

B. Characteristics of Online Harm ....................772

1. Entanglement of the Online and Offline Realms . . ... 772

2. Reinforcement of Offline Power Dynamics and

Societal Divisions ..........................773

3. Amplification of Injury.......................773

4. Difficulty in Avoiding Past Online Harm.. . .. . .. .. 777

III. FRAMEWORKS FOR RECOGNIZING PAST ONLINE HARM IN ASYLUM

CLAIMS . . . . . . . . .. . . . . . . .. . . . . . . .. . . . . . . .. . . . . . . . 778

A. A History of Recognizing Novel Harms...............778

B. Framework 1: Evidence of Overall or Cumulative

Persecution . . . . . . . . . . .. . . . . . . . .. . . . . . . . .. . . . . 780

C. Framework 2: Online Persecution . . . . . . . . . . . . .. . . . . 781

1. As the Equivalent to the Offline Version of Harm . ... 782

2. As a New Form of Persecution .................783

3. As Online Harm that Amplifies Injury............784

IV. REFUTING ARGUMENTS AGAINST RECOGNIZING ONLINE HARM AS

PERSECUTION .....................................788

A. Declaring Asylum as an Inappropriate Remedy for Online

Harm .......................................788

B. Treating Online Harm as a Continuation of Offline Harm . . . . 791

C. Requiring Avoidance of Online Harm. . . . . . . . . . . . . . . . 792

D. Redefining Persecution to Exclude Online Harm. .. . . .. . 793

V. CONCLUSION ......................................799

750 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:749

INTRODUCTION

Online harm on social media is a global phenomenon.

1

The perpetrators on

social media include governments and non-state actors who may be acting on

their own or in concert with a government.

2

The targeted individuals include

“e-dissidents” who use social media to advocate for changes in their home

countries.

3

Others are “digital witnesses” who use social media to document

events in their home countries.

4

Some are individuals in the public sphere,

such as journalists and members of non-governmental organizations,

5

while

others are ordinary citizens broadcasting their beliefs, words of protest, and

fear of persecution.

6

1. See HUMAN RIGHTS WATCH, WORLD REPORT: EVENTS OF 2020 (2021), https://www.hrw.org/

world-report/2021 [hereinafter HUMAN RIGHTS WATCH, EVENTS OF 2020] (documenting global online

harm on social media in 2020); AMNESTY INT’L, Toxic Twitter (2018), https://www.amnesty.org/en/

latest/research/ [hereinafter AMNESTY INT’L, Toxic Twitter 2018] (documenting global online harm on

social media targeting women). Social media refers to online platforms that allow users to create and

exchange content and engage in social interactions. See Amir Gandomi & Murtaza Haider, Beyond the

Hype: Big Data Concepts, Methods, and Analytics, 35 INT’L J. INFO. MGMT 137, 142 (2015). Social

media includes social networks such as Facebook; microblogs such as Twitter, Tumblr, and Weibo;

social news fora such as Reddit; video or media-sharing platforms such as Instagram, Snapchat,

YouTube, and TikTok; as well as mobile messaging apps such as WhatsApp and WeChat. See id.

2. See ADRIAN SHABAZ & ALLIE FUNK, FREEDOM HOUSE, Freedom on the Net 2019, The Crisis of

Social Media (2019), https://www.freedomonthenet.org/report/freedom-on-the-net/2019/the-crisis-of-

social-media (documenting the rising use of social media by governments and non-state actors as a tool to

harm others); ADRIAN SHABAZ, FREEDOM HOUSE, Freedom on the Net 2018, The Rise of Digital

Authoritarianism (2018), https://freedomhouse.org/report/freedom-net/2018/rise-digital-authoritarianism

[hereinafter SHABAZ, The Rise of Digital Authoritarianism] (documenting the rising use of other online

tools by governments to harm their citizens); see also Tamar Megiddo, Online Activism, Digital

Domination, and the Rule of Trolls: Mapping and Theorizing Technological Oppression by Governments,

58 COLUM. J. TRANSNAT’L L. 394, 395–425, 439–40 (2020) (examining governments’ harnessing of non-

state actors to fulfill their agendas of online harm).

3. See Rosemary Byrne, The Protection Paradox: Why Hasn’t the Arrival of New Media

Transformed Refugee Status Determination?, 27 INT’L J. REFUGEE L. 625, 631–32 (2015) (defining “e–

dissidents”). See, e.g., Rod Nordland, Cellphones in Hand, Saudi Women Challenge Notions of Male

Control, N.Y. TIMES (Apr. 21, 2017), https://www.nytimes.com/2017/04/21/world/middleeast/saudi-

arabia-women-male-guardianship-activists-social-media.html (reporting Saudi women’s use of social

media to protest against laws used to restrict women).

4. See MARIE GILLESPIE, LAWRENCE AMPOFO, MARGARET CHEESMAN, BECKY FAITH, EVGENIA

ILIADOU, ALI ISSA, SOUAD OSSEIRAN & DIMITRIS SKLEPARIS, THE OPEN UNIVERSITY/FRANCE ME

´DIAS

MONDE, Mapping Refugee Media Journeys: Smartphones and Social Media Networks 25–26, 35–37, 56–

77 (2016) (documenting how asylum-seekers and refugees use social media as “digital witnesses”); Sam

Gregory, Ubiquitous Witnesses: Who Creates the Evidence and the Live(d) Experience of Human Rights

Violations?, 18 INFO., COMMC’N & SOC’Y 1378, 1378–92 (2015) (describing such individuals as “citizen

witnesses”). See, e.g., HUMAN RIGHTS WATCH, WORLD REPORT: EVENTS OF 2019 278, 331, 373, 453

(2020), https://www.hrw.org/world-report/2020 (reporting that videos documenting police brutality were

uploaded to social media in multiple countries).

5. See UNESCO, Intensified Attacks, New Defences: Developments in the Fight to Protect

Journalists and End Impunity, U.N. Doc. CI-2019-WTR-3, at 1–73 (2019), https://unesdoc.unesco.org/

ark:/48223/pf0000371343 [hereinafter UNESCO Report 2019] (documenting the online targeting of

journalists); AMNESTY INT’L, Toxic Twitter 2018, supra note 1 (documenting the online targeting of

female journalists); see also Rosine Faucher, Social Media and Change in International Humanitarian

Law Dynamics, 2 INTER GENTES 48, 51–74 (2019) (discussing the positive role that social media may

play in assisting non-governmental organizations in documenting international human rights violations).

6. See supra notes 3–4. See generally Maren Borkert, Karen E. Fisher & Eiad Yafi, The Best, the

Worst, and the Hardest to Find: How People, Mobiles, and Social Media Connect Migrants In(to)

Europe, SOCIAL MEDIA þSOCIETY 1, 8–9 (2018) (documenting how and why asylum-seekers use social

media before, during, and after flight from their home countries); Rianne Dekker, Godfried Engbersen &

2021] SOCIAL MEDIA AND ONLINE PERSECUTION 751