Personal Privacy in an Information Society. Recommendations

07/12/1997

Although the Commission's mandate merely states that it may "research, examine, and analyze" the use of the Social Security number and other identifiers, its inquiry led it to conclude that some minor revisions to existing Federal policy on the use of the Social Security number are desirable. The Commission's recommendations and underlying rationale are set forth below.

SECTION 7 OF THE PRIVACY ACT

The Commission considered-and rejected-the idea of recommending repeal of Section 7 as it currently applies to Federal, State, and local government agencies. Although it does believe that, like any restrictions on the collection and use of the SSN, Section 7 does not address the complex problem of permissible exchanges and disclosures of records, the Commission recognizes that Section 7 may be somewhat successful in alleviating citizens' concerns about the "dossier-building" capacity of government. Accordingly, the Commission recommends:

Recommendation (1):

That Section 7 of the Privacy Act be retained for government agencies.

Although the Commission does not believe that legal restrictions on the collection or use of the SSN should be made to apply to private organizations, it recognizes that private organizations are in many cases willing to respond to inquiries by customers and employees regarding whether the organization requires the disclosure of the SSN, and how it will be used and disclosed. To the extent that private organizations respond to such specific inquiries, such information may permit a concerned individual to determine whether the drawbacks he perceives in giving the SSN outweigh the potential benefits, and thus whether he wishes to continue to do business with a company or to take his business elsewhere.

Individuals cannot exercise a similar option with respect to government agencies-there is generally only one government agency with which an individual can "do business"-and thus limitations on the collection of the SSN by government agencies are appropriate even though the Commission considers them to be inappropriate for the private sector.

EXECUTIVE ORDER 9397

The Commission also recommends:

Recommendation (2):

That the President amend Executive Order 9397 (November 30, 1943, 8 Federal Register 237, an order directing Federal agencies to use the Social Security account number when establishing a new system of permanent account numbers) so that Federal agencies may not, as of January 1, 1977, rely on it as legal authority by which to create new demands for the disclosure of an individual's SSN.

Executive Order 9397, issued in 1943 by President Roosevelt, provides in part as follows:

Whereas certain Federal agencies from time to time require in the administration of their activities a system of numerical identification of accounts of individual persons; and . . .

Whereas it is desirable in the interest of economy and orderly administration that the Federal Government move towards the use of a single, unduplicated numerical identification system of accounts and avoid the unnecessary establishment of additional systems;

Now, therefore, . . . it is hereby ordered as follows:

1. Hereafter any Federal department, establishment, or agency shall, whenever the head thereof finds it advisable to establish a new system of permanent account numbers pertaining to individual persons, utilize exclusively the Social Security account numbers ... .

This order has been cited by some Federal agencies as the legal authority permitting them to compel an individual to disclose his SSN to them, especially in cases in which no more specific legal authority for compelling SSN disclosure exists. Section 7 of the Privacy Act appears to suggest that government agencies need specific legal authority to support a request for SSN disclosure, rather than authority of general applicability such as that contained in E.O. 9397. Thus, to the extent that Federal agencies interpret E.O. 9397 as sufficient authority to establish requirements for collection of the SSN, the intent of Section 7 is undermined.

The Commission believes that Federal agencies should no longer be able to rely on E.O. 9397 as authority for new requests for SSN divulgence. In order to minimize the disruption that outright repeal of the order would cause, however, the Commission believes that agencies that cited it as the basis for their requests for the SSN prior to January 1, 1977 should be able to continue to do so. If the Commission's recommendation were adopted, any Federal agency that wishes to support a demand for the SSN after that date would have to seek specific legal authority from the Congress unless some other specific authority is otherwise available to them.

This means that if an agency had cited E.O. 9397 as authority to require disclosure of the SSN for one purpose prior to January 1, 1977-- such as personnel record keeping-it could not cite the executive order as authority for collecting the SSN for a new purpose-such as indexing records about individual contractors-after January 1, 1977. Because Section 7 of the Privacy Act currently requires Federal agencies to tell individuals under what legal authority they are soliciting the SSN, a record of the agencies citing E.O. 9397 as authority, and the purposes for which they requested the SSN pursuant to it, already exists and could be used in enforcing this recommendation.

MONITORING AND FURTHER STUDY

The Commission recommends:

Recommendation (3):

That the independent entity recommended by the Privacy Commission monitor the use of the SSN and other labels by private organizations and consider the desirability and feasibility of future restrictions on the use of the SSN and other labels for identification and authentication purposes.

Although the Commission does not believe that legal restrictions on the collection or use of the SSN by private organizations are appropriate at this time, it realizes that the use of the SSN may be a source of continuing public concern. The Commission hopes that as legislatures, public agencies, and private organizations take steps to apply its recommendations regarding the proper uses of records about individuals, this concern will diminish. If the independent entity recommended by the Commission11 is created by the Congress, it could, however, continue to monitor the use of the SSN by private organizations and recommend legislation if at any point it seemed to be warranted.

STANDARD UNIVERSAL LABEL

Finally, the Commission recommends:

Recommendation (4):

That the Federal government not consider taking any action that would foster the development of a standard, universal label for individuals, or a central population register, until such time as significant steps have been taken to implement safeguards and policies regarding permissible uses and disclosures of records about individuals in the spirit of those recommended by the Commission and these safeguards and policies have been demonstrated to be effective.

Here as elsewhere, the Commission stresses the need to adopt policies regarding the permissible uses and disclosures of records about individuals, and in other chapters of this report the Commission has made recommendations regarding what the permissible uses and disclosures should be in a number of record-keeping areas. These recommendations address the substantive issues of record use and exchange and their adoption would more effectively deal with these issues than would restrictions on the use of the SSN.

At the same time, however, there is currently much debate about the need to develop foolproof methods of identification in order to deter fraudulent uses of standard documents widely used for identification and widely authentication purposes, such as drivers' licenses and Social Security cards. The Commission recognizes that such use of identification documents imposes a heavy cost on industry, government, and society as a whole, but also recognizes that the development of improved identity documents is often viewed as inconsistent with America's tradition of civil liberties. The conflict would become especially acute if a standard universal label were linked to a central population register that maintained records of not only the name and label of each individual, but also his current address, and much more so if such location data were freely available to government agencies and private organizations. Such a central population register could be created anew, or an existing record system-such as one maintained by the Social Security Administration-could serve as such a register.

Because of this potential conflict, the Commission believes that any consideration of a standard universal label and of a record system approximating a central population register, should be postponed until society, through its legislatures, has made significant progress in establishing policies to regulate the use and disclosure of information about individuals collected by both private organizations and government agencies, and until such policies are shown to be effective.

The Commission sees a clear danger that a government record system, such as that maintained by the Social Security Administration or the Internal Revenue Service, will become a de facto central population register unless prevented by conscious policy decisions. Therefore, Recommendation (4), above, means also that the Federal government should act positively to halt the incremental drift toward creation of a standard universal label and central population register until laws and policies regarding the use of records about individuals are developed and shown to be effective.