Personal Privacy in an Information Society. Restrictions on the Use of the SSN

07/12/1997

The Privacy Protection Study Commission is not the first government organization to study the use of the SSN and other identifiers and make recommendations regarding them. The Social Security Administration's Social Security Number Task Force,4 the DHEW Secretary's Advisory Committee on Automated Personal Data Systems,5 and the Federal Advisory Committee on False Identification,6 have all reported on the use of the Social Security number and other means of labelling individuals. In addition, the Congress has enacted legislation regarding the conditions under which disclosure of an individual's Social Security number can be compelled.

The enactment by the Congress of Section 7 of the Privacy Act of 1974 was the first step in establishing a Federal policy limiting compulsory divulgence of the SSN.7 Section 7 provides that:

(a)

(1) It shall be unlawful for any Federal, State or local 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.

This statute implicitly endorses two proposals of the DHEW Secretary's Advisory Committee on Automated Personal Data Systems: (1) that an individual whose SSN is requested should be informed as to whether or not divulging his number is legally required; and (2) that no individual should be denied a benefit because of his refusal to divulge his SSN for purposes other those required by Federal law.

The Privacy Act's Section 7 exempts from its restrictions demands for an individual's SSN that are mandated by statute or regulation adopted prior to January 1, 1975 for systems of records in operation prior to that time, and, of course, does not apply at all to private organizations. Section 7 was not, however, intended to do more than impose a moratorium on demands for an individual's Social Security number by government agencies under circumstances where the individual has no choice but to comply.

In 1976, for the first time since passage of the Privacy Act, the Congress exercised its authority to authorize compulsory divulgence of the SSN. Section 1211 of the Tax Reform Act of 1976 provides that:

(i) It is the policy of the United States that any State (or political subdivision thereof) may, in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law within its jurisdiction, utilize the social security account numbers issued by the [HEW] Secretary for the purpose of establishing the identification of individuals affected by such law, and may require any individual who is or appears to be so affected to furnish to such State (or political subdivision thereof) or any agency thereof having administrative responsibility for the law involved, the social security account number (or numbers, if he has more than one such number) issued to him by the Secretary.

(ii) If and to the extent that any provision of Federal law heretofore enacted is inconsistent with the policy set forth in clause (i) of this subparagraph, such provision shall, on or after the date of the enactment of this subparagraph, be null, void, and of no effect.

(iii) For purposes of clause (i) of this subparagraph, an agency of a State (or political subdivision thereof) charged with the administration of any general public assistance, driver's license, or motor vehicle registration law which did not use the social security account number for identification under a law or regulation adopted before January 1, 1975, may require an individual to disclose his or her social security number to such agency solely for the purpose of administering the laws referred to in clause (i) above and for the purpose of responding to requests for information from an agency operating pursuant to the provisions of part A or D of title IV of the Social Security Act [AFDC and Child Support Enforcement programs].

This provision was designed primarily to help State Child Support Enforcement units locate parents who have defaulted on their child support obligations, and to facilitate the matching of information on Federal and State tax returns by State taxing authorities.

The Privacy Act's Section 7 appears to have had little impact on Federal, State, and local government agencies. Most Federal agencies have been able to cite some legal authority in effect before January 1, 1975 that lets them continue to demand disclosure of the SSN. Although a few State and local agencies have abandoned the use of the SSN because they lack such legal authority, the Tax Reform Act grants most State and local government agencies that found its continued use necessary the authority to demand it. In short, the Privacy Act and the Tax Reform Act essentially preserved the status quo with respect to the SSN: namely, widespread collection and use of the number.

To make Section 7 of the Privacy Act truly effective-that is, to severely restrict the circumstances under which an individual can be required to divulge his SSN to a government agency-could easily entail costly changes for agencies that rely on the SSN for identification and authentication. If even a few persons asserted their right to refuse to divulge the SSN to a government agency, it would be required to develop and administer a new labelling system, and to revise its automated record-keeping processes. Because of the character of such revisions-which involve creating the capacity for an automated record system to deal with identifiers and authenticators other than the SSN-the cost involved would be essentially the same whether only a few individuals refused to divulge the SSN or all subjects of the system's records declined to disclose the number.