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From [email protected] Sun Mar 17 06:54:15 1996 Newsgroups: comp.society.privacy Subject: Legal Restrictions o SSN From: Robert Gellman Date: 17 Mar 1996 14:54:15 GMT
There were some recent postings here about legal restrictions on SSNs that had some erroneous information.
The only real federal law restricting the collection of SSNs is section 7 of the Privacy Act of 1974. That is Public Law 93-579, and section 7 is uncodified. It can be found at §5 USC 552a or §5 USC 552a note. (use your browser to search for "Disclosure of Social Security Number"). Here is the text:
(a)(1) It shall be unlawful for any Federal, State or localH
government agency to deny to any individual any right,
benefit, or privilege provided by law because of such
individual's refusal to disclose his social security account
number.
(2) the provisions of paragraph (1) of this subsection shall
not apply with respect to -
(A) any disclosure which is required by Federal statute, or
(B) the disclosure of a social security number to any Federal,
State, or local agency maintaining a system of records in
existence and operating before January 1, 1975, if such disclosure
was required under statute or regulation adopted prior to such
date to verify the identity of an individual.
(b) Any Federal, State, or local government agency which requests an
individual to disclose his social security account number shall inform
that individual whether that disclosure is mandatory or voluntary, by
what statutory or other authority such number is solicited, and what
uses will be made of it.
Note that this only applies to government agencies and not to the private sector.
There are quite a few other federal laws that expressly permit or mandate the use the SSNs and that supersede the section quoted above.
In 42 USC 405, states are authorized to use SSNs for motor vehicle purposes, welfare, and state tax purposes. The Selective Service can also use SSNs under another federal law. The tax code REQUIRES people who pay wages, dividends, interest, and engage in some other activities to collect and report SSNs.
There is no federal law that I know of that restricts the collection of SSNs by a private entity. I can't speak to state constitutions or state laws, but there just isn't much help here from federal law. I repeat: private companies can collect and disclose SSNs without restriction under federal law.
State governments are mostly unrestricted in how they can disclose SSNs by federal law. The section quoted above only restricts collection. The federal government itself is restricted by the Privacy Act in its ability to disclose SSNs.
If someone knows of any other relevant federal laws, please post them with specific cites.
+ + + + + + + + + + + + + + + + + + + + + + + + + + Robert Gellman [email protected] + + Privacy and Information Policy Consultant + + 431 Fifth Street S.E. + + Washington, DC 20003 + + 202-543-7923 (phone) 202-547-8287 (fax) + + + + + + + + + + + + + + + + + + + + + + + + + +
One interesting provision of the Social Security Act does provide
for penalties:
42 USC 408
If you can prove ANY federal law has been violated in CONJUNCTION with disclosing, using, or compelling the disclosure of the social security number of any person, the folowing "penalties" section of the Social Security Act would seem to apply. A search of this section on Lexis, however, turns up zero case law to indicate that it has ever been enforced!! 42 USCS 408 (a)(8)(1996) 408. Penalties (a) Whoever-- (8) discloses, uses, or compels the disclosure of the social security number of any person in violation of the laws of the United States; shall be guilty of a felony and upon conviction thereof shall be fined under title 18, United States Code, or imprisoned for not more than five years, or both.
[After stating the Privacy Act only applies to federal agencies]
"There is, however, one limited exception to this
rule--the social security number usage restric
tions, contained in Section 7 of the Privacy
Act, do apply to federal, state, and local gov
ernment agencies. (Section 7, originally part
of the Privacy Act, Public Law 93-579, was not
codified; it can be found at 5 U.S.C. 552a
note (Disclosure of Social Security Number)).
This special provision is discussed below under
"Social Security Number Usage."
Ingerman v. IRS, No. 89-5396, slip op. at 6 (D.N.J. Apr. 3,
1991) ("An individual's social security number
does not contain his name, identifying number or
other identifying particular. . . . [A] social
security number is the individual's identifying
number, and therefore, it cannot qualify as a
record under . . . the Privacy Act."), aff'd, 953
F.2d 1380 (3d Cir. 1992) (table cite)
p.407-13
SOCIAL SECURITY NUMBER USAGE
Section 7 of the Privacy Act (found at 5 U.S.C. 552a note
(Disclosure of Social Security Number)) provides that:
"It shall be unlawful for any Federal, State or local govern-
ment agency to deny to any individual any right, benefit, or
privilege provided by law because of such individual's
refusal to disclose his social security account number." Sec. 7(a)(1).
comment -- Note that although this provision applies beyond
federal agencies, it does not apply to: (1) any dis
closure which is required by federal statute; or (2)
any disclosure of a social security number to any
Federal, State, or local agency maintaining a system
of records in existence and operating before January
1, 1975, if such disclosure was required under
statute or regulation adopted prior to such date to
verify the identity of an individual. See Sec.
7(a)(2)(A)-(B).
Note also that the Tax Reform Act of 1976, 42 U.S.C.
405(c)(2)(C)(i), (iv) (1988 & Supp. V 1993),
expressly exempts state agencies from this restriction
to the extent that social security numbers are used
"in the administration of any tax, general public
assistance, driver's license, or motor vehicle reg
istration law within its jurisdiction." See also
42 U.S.C. 405(c)(2)(C)(ii) (authorizing state use
of social security numbers in issuance of birth cer
tificates and for purposes of enforcement of child
support orders); 42 U.S.C. 405(c)(2)(C)(iii) (au
thorizing use of social security numbers by Secre
tary of Agriculture in administration of Food Stamp
Act of 1977 and by Federal Crop Insurance Corpora
tion in administration of Federal Crop Insurance
agency's Act).
"Any Federal, State or local government agency which requests
an individual to disclose his social security account number
shall inform that individual whether that disclosure is mandatory or
voluntary, by what statutory or other authority such
number is solicited, and what uses will be made of it." Sec.7(b).
comment -- Jurisdiction to enforce the social security number
provision might appear questionable inasmuch as the
Act does not expressly provide for a civil remedy
against a nonfederal agency, or for injunctive re
lief outside of the access and amendment contexts.
However, the courts have recognized implied remedies
for violations of its requirements. See
Yeager v. Hackensack Water Co., 615 F. Supp. 1087, 1090-92 (D.N.J. 1985);
Wolman v. United States, 501 F. Supp. 310, 311 (D.D.C. 1980),
remanded, 675 F.2d 1341 (D.C. Cir. 1982) (table cite),
on remand, 542 F. Supp. 84, 85-86 (D.D.C. 1982);
Greater Cleveland Welfare Rights Org. v. Bauer, 462 F. Supp. 1313,
1319-21 (N.D. Ohio 1978). For other decisions construing
the provision, see
Alcaraz v. Block, 746 F.2d 593, 608-09 (9th Cir. 1984) (Section 7(b)'s
notice provision satisfied where agency informed
"participants of the voluntariness of the disclosure, the
source of authority for it and the possible uses to
which the disclosed numbers may be put");
Brookens v. United States, 627 F.2d 494, 496-99 (D.C. Cir. 1980)
(agency did not violate Privacy Act because agency
maintained system of records "before January 1, 1975
and disclosure of a social security number to identify
individuals was required under [executive order]");
McElrath v. Califano, 615 F.2d 434, 440 (7th Cir. 1980)
(because disclosure of social security number required
by Aid to Families with Dependent Children program under
42 U.S.C. 602(a)(25) (1988), regulations that give effect
to that requirement are not violative of Privacy Act);
Green v. Philbrook, 576 F.2d 440, 445-46 (2d Cir. 1978) (same);
Krebs v. Rutgers, 797 F. Supp. 1246, 1256 (D.N.J. 1992)
(although state-chartered, Rutgers is not state agency
or government-controlled corporation subject to Privacy
Act);
Greidinger v. Davis, 782 F. Supp. 1106, 1108-09 (E.D. Va. 1992)
(Privacy Act violated where state did not provide
timely notice in accordance with Section 7(b) when
collecting social security number for voter registra
tion), rev'd & remanded on other grounds, 988 F.2d
1344 (4th Cir. 1993);
Libertarian Party v. Bremer Ehrler, Etc., No. 91-231, slip op. at 17-18
(E.D. Ky. Sept. 30, 1991) (requirement that voter include
social security number on signature petition
violates Privacy Act);
Ingerman v. IRS, No. 89-5396, slip op. at 3-5 (D.N.J. Apr. 3, 1991)
(Section 7(b) not applicable to IRS request that tax
payers affix printed mailing label containing social
security number on tax returns; no new disclosure occurs
because IRS already was in possession of taxpayers'
social security numbers), aff'd, 953 F.2d 1380 (3d
Cir. 1992) (table cite);
Oakes v. IRS, No. 86-2804, slip op. at 2-3 (D.D.C. Apr. 16, 1987)
(Section 7(b) does not require agency requesting
individual to disclose his social security number to
publish any notice in Federal Register);
Doyle v. Wilson, 529 F. Supp. 1343, 1348-50 (D. Del. 1982)
(Section 7(b)'s requirements are not fulfilled when
no affirmative effort is made to disclose information
required under 7(b) "at or before the time the number
is requested");
Doe v. Sharp, 491 F. Supp. 346, 347-50 (D. Mass. 1980)
(same as Green and McElrath regarding Section 7(a);
Section 7(b) creates affirmative duty for agencies
to inform applicant of uses to be made of social
security numbers--"after-the-fact explanations" not
sufficient); and
Chambers v. Klein, 419 F. Supp. 569, 580 (D.N.J. 1976)
(same as Green, McElrath, and Doe regarding Section 7(a);
Section 7(b) not violated where agency failed to notify
applicants of use to be made of social security
numbers as state had not begun using them pending
full implementation of statute requiring their
disclosure), aff'd, 564 F.2d 89 (3d Cir. 1977) (table
cite)...."