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 INTL, Toxic Twitter (2018), https://www.amnesty.org/en/
latest/research/ [hereinafter AMNESTY INTL, 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 INTL 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. TRANSNATL 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 INTL 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., COMMCN & SOCY 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 INTL, 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

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