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In the recent case of Badasa v. Mukasey, the U.S. Court of Appeals for the Eighth Circuit granted Plaintiff Lamilem Badasa’s Petition for Review following the Department of Homeland Security’s denial of her application for asylum. The court’s reason for granting the petition? Merely the fact that the Department based its interpretation of Ms. Badasa’s supporting documentation, and ultimately its denial, on an entry found on Wikipedia.org, the online self-described “free encyclopedia that anyone can edit.” Finding that the Department’s reliance on Wikipedia’s defintion of Plaintiff’s “laissez-passer” document was improper, the court remanded the case for further evaluation (presumably, a review not including Wikipedia entries as evidence).
Besides its obvious effect on the fate of Ms. Badasa, this case is important because it illustrates an emerging trend being adopted by the Department of Homeland Security and the FBI: that of consulting online sources — including Wikipedia.org, Google.com, YouTube.com, Facebook.com, and MySpace.com, among others — when evaluating individuals’ applications for admission into the United States. Sources report that these agencies may also be using these tactics to spy on American citizens as well. For instance, the Department may access the Facebook or MySpace profile of an airline passenger who has been flagged for security reasons in order to garner information on the person.
The major problems that most critics cite, including the Eighth Circuit in Badasa , is that the content of these websites is user-generated and unverifiable. As such, any user may anonymously post entries on Wikipedia or create videos on YouTube. Although MySpace and Facebook accounts are intended to be accessible only by the account’s owner, account hacking is not unusual and allows others to alter a user’s information without his or her consent. Because evidence from these websites is unverifiable, use of such information implicates serious evidentiary problems, specifically, hearsay and authentication issues. Furthermore, the government’s practice of accessing individuals’ personal accounts smacks of privacy invasion. It is unlikely that most users take into account the fact that the Department of Homeland Security or the FBI may view their information when deciding what to post online; armed with this knowledge, many would likely exercise greater discretion in their disclosures.
Unfortunately, until courts strike down using evidence found through Google, YouTube, Facebook, MySpace, and other similar sites, as they have with Wikipedia in Badasa, the Department of Homeland Security and FBI remain free to consult these sources for information on individuals. For now, an individual’s primary line of defense is to be cognizant of his or her personal information that is available on the Internet, and to practice discretion when publishing personal information online. Fortunately, Badasa offers hope that future courts will similarly strike down governmental use of unverifiable online information and provides notice to the public that, for now, this information is fair game.
– Marci Britt
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