The Connecticut General Assembly
OFFICE OF LEGISLATIVE RESEARCH
October 18, 1994 94-R-0864
FROM: Pamela Lucas, Research Attorney
RE: Social Security Number Identifiers
You asked (1) under federal and Connecticut statutes, when can governmental agencies require applicants for benefits or privileges to furnish their social security numbers (SSNs); (2) what legal remedies would applicants have if they were denied benefits or privileges because of their refusal to furnish their numbers; (3) which state agencies request SSNs; and (4) what are the restrictions on state agency disclosure of the numbers.
Federal law allows state agencies to require applicants for benefits or privileges to furnish their SSNs only if: (1) a federal statute requires disclosure of the numbers; (2) the agencies have required disclosure and maintained an operating records system pursuant to a statute or regulation enacted before 1975; or (3) the numbers are used for identification purposes in the administration of a tax, general public assistance, driver's license or motor vehicle registration law. Various state laws require SSNs to be furnished for particular programs or benefits. In addition, PA 93-288 requires persons applying for a license, selling goods, or leasing property to a state agency to furnish a federal social security number or federal employer identification number or both, if available. (This memo does not examine statutory and regulatory requirements for discrete state programs or benefits. Upon request we will research such requirements.)
If an individual were required to furnish a SSN in contravention of federal law or the powers granted to the state agency by the legislature, he or she might consider appealing the agency's decision denying benefits or privileges, or moving in court for injunctive or declarative relief.
Agencies which require applicants for a particular benefit or privilege to furnish SSNs include the departments of Public Safety, Revenue Services, and Social Services, and the Insurance Department. Other agencies request SSNs but have informed OLR they would not deny benefits or privileges to applicants who refuse to provide SSNs. It appears that some of these agencies do not inform applicants that the numbers are to be furnished on a voluntary basis, as required by federal law. In researching this part of the memo, OLR spoke with staff of selected agencies and inquired about selected programs or benefits.
Federal law prohibits agencies from disclosing SSNs to the public if the state has obtained the numbers pursuant to any law enacted on or after October 1, 1990. State law contains no explicit restrictions on agency disclosure of SSNs, but the Freedom of Information Act appears to except SSNs from its public disclosure requirements.
REQUIREMENTS TO FURNISH SOCIAL SECURITY NUMBERS AS A CONDITION OF RECEIVING BENEFITS OR PRIVILEGES
The SSN system originated in 1936 as a means for the federal government to track earnings to determine the amount of social security taxes to credit to each worker's account. Since then SSNs have been permitted to be used for purposes other than those related to administration of the social security system. For example, in 1961 Congress authorized the Internal Revenue Service to use the numbers for taxpayer identification purposes (Pub. L. No. 87-397, 75 Stat. 828 (codified, as amended, at 26 U.S.C. §§ 6113, 6676)).
Recognizing the dangers of widespread use of SSNs as universal identifiers, and responding to concerns about privacy infringement arising from extensive accumulation of personal data, Congress passed the Privacy Act of 1974 (see S. Rep. No. 1183, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. and Admin. News 6916, 1943). The act makes it 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" (5 U.S.C. § 552a note, Section 7 of Pub. L. 93-579). The act excepts from this provision those disclosures (1) required by federal statute; or (2) to agencies which have maintained an operating records system and, pursuant to statute or regulation enacted before 1975, have required disclosure for identification purposes.
The act also requires agencies which request SSNs to inform the individuals "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." In enacting this section, Congress sought to "permit an individual to make an informed decision whether or not to disclose the social security account number" and "to bring recognition to, and discourage, unnecessary or improper uses of that number" (Analysis of House and Senate Compromise Amendments to the Federal Privacy Act, printed in 120 Cong. Rec. S21, 817 (Dec. 17, 1974) and in 120 Cong. Rec. H12, 243 (Dec. 18, 1974)).
In 1976 Congress amended the Social Security Act, in effect providing an additional exception to the statutory protection afforded people who refuse to disclose their SSNs (see Doyle v. Wilson, 529 F. Supp. 1343, 1349 (D. Del. 1982)). The amendment declared that it is U.S. policy that social security numbers may be used and required for identification purposes by state agencies "in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law within [the state's] jurisdiction. . ." (codified at 42 U.S.C. § 405(2)(C)(i)).
Thus a state agency's practice of requiring a SSN can pass muster under federal law only if the following two elements are proved. First, it must fall within one of the following two statutory exceptions to the Privacy Act: (1) it must be incident to the administration of a tax, general public assistance, driver's license, or motor vehicle registration law and be used to establish the identification of individuals affected by the law; or (2) disclosure must be required under a statute or regulation adopted prior to January 1, 1975, under a records system operating before that date. Second, the state agency must have provided individuals tendering their numbers with information on whether the disclosure was mandatory or voluntary, the authority for the agency's request, and the uses to be made of the number.
There are no Connecticut statutes or laws which explicitly limit when agencies can request disclosure of SSNs. Any request for disclosure, however, must be authorized either explicitly or implicitly by the legislature's grant of powers to the agency. The only law to generally require disclosure of SSNs is PA 93-288. (Statutes dealing with specific benefits, including some involving federal programs such as Aid to Families with Dependent Children, may also require applicants to furnish a SSN.)
PA 93-288 makes it state policy "to require persons applying for a license, selling goods or services or leasing real or personal property to an agency to furnish a federal social security number or federal employer identification number or both, if available, to establish the identification of persons affected by the tax laws of the state." It requires executive branch agencies to incorporate, as part of their procedures for issuing or renewing licenses, contracting to purchase goods or services, or leasing property, requests for federal social security numbers or federal employer identification numbers, or both, if available. Agencies must provide the reasons, if the numbers are not available.
Beginning in 1995, every agency that issues a license must annually furnish the revenue services commissioner with a list, by February 1, of those licensed during the preceding calendar year. The list, on a tape file or other acceptable form, must include the licensee's name, address, federal social security account number or federal employer identification number, or both, or the reasons why those numbers are unavailable. The annual lists, with the same information, from agencies of people furnishing goods or services or leasing property are due August 1, beginning in 1995 for transactions of the preceding fiscal year.
LEGAL REMEDIES FOR INDIVIDUALS DENIED BENEFITS OR PRIVILEGES
There are various ways an individual can challenge SSN requirements or the denial of benefits or privileges based on the refusal to furnish the number. They would include appealing the agency's denial in state court, and moving for declarative or injunctive relief (i.e., asking a federal or state court, depending on the wrong asserted, to declare the agency's action to be illegal, and to enjoin it from further action).
If the agency's request for a SSN is not authorized by a specific statute or the legislature's grant of powers, the individual can assert that the agency's action is ultra vires and contrary to state law. If the agency's denial of benefits or privileges does not fall within the exceptions to the federal Privacy Act outlined above, or if the agency does not accompany its request for the number with the information required by the act, the individual can assert that the agency's action violates federal law.
The individual is unlikely to succeed, however, with a challenge based on the federal constitutional right to privacy, even though both federal and state courts have recognized the privacy concerns raised by the use of SSNs for identification and indexing information. The privacy issued was recently underscored in Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993), when the United States Court of Appeals for the Fourth Circuit held that a Virginia law requiring voter registrants to disclose their SSNs and make the numbers subject to public disclosure imposed an "intolerable burden on the right to vote." The court observed:
[s]ince the passage of the Privacy Act, an individual's concern over his [social security number's] confidentiality and misuse has become significantly more compelling. For example, armed with one's [social security number], an unscrupulous individual could obtain a person's welfare benefits or Social Security benefits, order new checks at a new address on that person's checking account, obtain credit cards, or even obtain a person's paycheck. . . . Succinctly stated, the harm that can be inflicted from the disclosure of a [social security number] to an unscrupulous individual is alarming and potentially financially ruinous
(id. at 1353-54 (citations omitted); see also Simitis, Reviewing Privacy in an Information Society, 135 U. PA L.Rev. 707 (1987) (SSNs have been used to access taxes, motor vehicle registrations, school records, prison files, veteran records, workers' compensation records, low income housing records, employment records, bank records, and credit reports)).
The federal courts have held that privacy interests implicated in SSN requirements are not, however, protected by the federal constitutional right to privacy (McElrath v. Califano, 615 F.2d 434, 441 (7th Cir. 1980); Doyle v. Wilson, 529 F.Supp. 1343 (D. Del. 1982); Greater Cleveland Welfare Rights Org. v. Bauer, 462 F.Supp. 1313, 1318-19 (N.D. Ohio 1978); Cantor v. Supreme Court of Pennsylvania, 353 F.Supp. 1307, 1321-22 (E.D. Pa.), aff'd without opinion, 487 F.2d 1394 (3rd Cir. 1973); Conant v. Hill, 326 F.Supp. 2S, 26 (E.D. Va. 1971)). The constitutional right to privacy embodies only "'those personal rights that can be deemed fundamental or implicit in the concept of ordered liberty'" (McElrath, 613 F.2d at 441 (quoting Roe v. Wade, 410 U.S. 113, 152 (1973)). Generally the activities covered by the right relate to the intimate details of an individual's personal life: marriage, procreation, contraception, family relationships, child rearing, or education (Paul v. Davis, 434 U.S. 693, 713 (1976)). These activities would not appear to be threatened by a SSN requirement.
It is unclear, however, whether an individual could assert a violation of the state constitutional right to privacy. The Connecticut Supreme Court has interpreted the state constitution to afford broader protection than the federal in certain instances, but has not extensively explored the privacy right.
STATE AGENCIES THAT REQUEST SSNs
Department of Consumer Protection
SSNs requested but not required for occupational and professional licensing. Refusal to provide SSN might affect participation in apprenticeship programs.
Department of Liquor Control
SSNs requested but not required from permitees, partners, owners, corporate officers of liquor establishments. Citizenship would have to be proven by alternative methods.
Department of Motor Vehicles
SSNs requested but not required for new licenses and renewals. Insert in renewal form indicates SSNs to be furnished on a voluntary basis. Commissioner is revising application for new licenses to indicate the same.
Department of Public Health and Addiction Services
SSNs requested but not required for licenses and examinations, and for Healthy Start program benefits.
Department of Public Safety
SSNs required for handgun and pistol carrying permit, dealer's permit, eligibility certificate, certificate of transfer and certificate for possession of assault weapons.
Department of Revenue Services
SSNs required to file state tax forms.
Department of Social Services
SSNs required for Aid to Families with Dependent Children and associated Job Opportunities and Basic Skills Training programs, Medicaid, Food Stamps, state supplement to the Supplemental Security Income Program, and General Assistance benefits.
SSNs requested but not required for Connecticut Energy Assistance Program, state vocational rehabilitation programs, child support enforcement services, Connecticut Pharmaceutical Assistance Program for the Elderly and Disabled, childcare certificate program, protective services for the elderly, and nursing home ombudsmen program.
SSNs required for licensing.
Office of the Secretary of the State
SSNs requested but not required for voter registration purposes. Registrant is informed that SSN to be furnished on a voluntary basis only and that number will not be disclosed to others.
SSNs are not requested on forms for incorporation, limited partnerships, and limited liability companies.
RESTRICTIONS ON AGENCY DISCLOSURE OF SSNs
Once a state agency obtains an individual's SSN, it is subject to few, if any, restrictions on disclosure of the number to the public. There are no Connecticut statutory restrictions on such disclosure, although the Freedom of Information Act appears to allow an agency to refuse to disclose the number to the public. As discussed above, the right to privacy embodied in the federal constitution would not limit the agency's disclosure. Finally, federal statutory law prohibits disclosure but only if the numbers and related records are obtained or maintained pursuant to a state law enacted on or after October 1, 1990.
The Social Security Act, as amended, requires that "[s]ocial security account numbers and related records that are obtained or maintained by authorized persons pursuant to any provision of law, enacted on or after October 1, 1990 shall be confidential, and no authorized person shall disclose any such social security account number or related record" (42 U.S.C. § 405(2)(C)(vii)(I)). "Authorized person[s]" include state officers and employees (42 U.S.C. § 405(2)(C)(vii)(III)). Unauthorized wilful disclosure is a felony punishable by a fine of up to $5,000, imprisonment of up to five years, or both, together with the costs of prosecution (see U.S.C. § 405(2)(C)(vii)(II)). This provision of the Social Security Act would apply, for example to disclosure of SSNs obtained under Connecticut's PA 93-288.
Connecticut's Freedom of Information Act, (CGS § 1-19) which generally grants the public access to all records maintained by any public agency, appears to contain two exceptions which would allow agencies to refuse to disclose SSNs. First, it grants the public access to agency records "[e]xcept as otherwise provided by any federal law or state statute" (CGS § 1-19(a)). This would include, for example, the above provision of the Social Security Act. Second, the act's access provisions do not apply to "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy" (CGS § 1-19(b)). According to counsel for the
Freedom of Information Commission, the commission considers agency disclosure of SSNs to be such an invasion. If a member of the public sought access to someone else's SSN contained in agency records, the commission would advise the agency to deny the request and would, in turn, affirm on appeal the agency's decision.