This February, my driver's license came up for renewal -- a fairly ordinary
event. I expected to wait briefly at the local Department of Transportation
office, take an eye test, have an unflattering photo taken, and be on my way
in short order. Alas, it was not to be. When I submitted the renewal form, I
was shocked and dismayed to discover that the clerk would not renew my
license unless I placed my Social Security number on it. There was no
Privacy Act notice on the form (as required by the 1974 Privacy Act), so I
asked the clerk why she believed she could to demand my Social Security
number -- and refuse me a license if I did not supply it.
What I found out was chilling. Not only does Federal Law -- thanks to the
striking of a single word from a huge statute -- require that drivers submit
their Social Security numbers when applying for licenses. It also requires
that all of the information maintained about a driver by a state --
including that number -- be revealed to virtually all comers. Here are the
details of these onerous laws, along with additional information about the
laws in my particular state (which are typical of state laws throughout the
country). I'll also describe the way in which one state is fighting the
Federal laws that would require it to compromise its citizens' privacy and
subject them to trivially easy identity theft.
Requirement for Collection
Very recently, welfare reform legislation changed Federal law to require
that states collect all citizens' Social Security numbers when they apply
for driver's licenses. (Earlier versions of the law only required it if one
applied for a *commercial* driver's license, on the theory that one could
threaten a deadbeat parent's livelihood if he or she required that license
to work.) But a subtle amendment, slipped in just recently, struck the word
"commercial," requiring the SSN to be collected from all applicants. The
ironically numbered passage at 42 USC 666(a) (see
http://www4.law.cornell.edu/uscode/42/666.html) says:
>(13) Recording of social security numbers in certain family matters. -
>Procedures requiring that the social security number of -
>
> (A) any applicant for a professional license, driver's
> license, occupational license, recreational license, or
> marriage license be recorded on the application;
>
> (B) any individual who is subject to a divorce decree,
> support order, or paternity determination or acknowledgment be
> placed in the records relating to the matter; and
>
> (C) any individual who has died be placed in the records
> relating to the death and be recorded on the death certificate.
> For purposes of subparagraph (A), if a State allows the use of a
> number other than the social security number to be used on the
> face of the document while the social security number is kept on
> file at the agency, the State shall so advise any applicants.
Note that while a different number may be used on the "face" of some
licenses, the state must still collect the Social Security number. Also note
that many of the items mentioned above are public records which can be
accessed by all comers (in some cases, due to open record laws such as
Wyoming's).
Requirement to Disseminate
The requirement that states disseminate Social Security Numbers it has
collected comes from a law misleadingly titled the "Drivers' Privacy
Protection Act." This law did in fact start out as a law to protect drivers'
privacy, but due to amendments promoted by monied lobbyists it has just the
opposite effect. (It is said, justifiably, that the law should really be
called the "Drivers' Privacy Prevention Act.")
The law is reproduced on the Web at
http://www.networkusa.org/fingerprint/page1b/fp-dmv-records-18-usc-123.html
Note that this law makes ALL of the information you submit to your state's
DMV/DOT available to *anyone* who claims that it's needed for any business
purpose. If I wanted your driving records and SSN, all I'd have to do is
walk into the courthouse and claim that you owed me a dollar.
The DPPA was challenged by the Alabama Attorney General on states' rights
grounds and was ruled unconstitutional by a Federal district court:
http://www.networkusa.org/fingerprint/page1b/fp-dppa-al-appeal.html
However, the US Supreme Court, in a chilling ruling that dubbed our
personal information "items in interstate commerce" and therefore subject
to Congressional control under the Commerce Clause, reversed the Circuit Court:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=98-1464
In retrospect, challenging the law on the basis of states' rights was
probably a big mistake. The Alabama AG might have had better success had he
cited the right to personal privacy delineated in Griswold v. Connecticut.
State SSN Requirements And Public Records Acts
The laws of many states also mandate the collection of Social Security
numbers -- and make the forms containing those numbers public records. I
live in Wyoming, and this is the case in my state. (The details of the
laws are instructive because they are similar to those in other states;
however, if you're uninterested in the specifics, you may want to skip
down to the heading "Michigan's Challenge" to learn more about a recent
challenge to the Federal laws.)
Wyoming law, at W.S. 31-7-111 (b) ("W.S." = "Wyoming Statutes"),
describes the information required on a driver's license application:
>(b) The application shall include:
>
> (i) The full legal name and current mailing and residential
> address of the
> person;
>
> (ii) A physical description of the person including sex, height
> and weight;
>
> (iii) Date of birth;
>
> (iv) The person's social security number or other numbers or letters
> deemed appropriate on applications for instruction permits,
> driver's licenses, commercial driver's licenses and
> commercial driver instruction permits;
Note that the statute does provide for an alternative; however, the
phrase "deemed appropriate" (By whom? What is the standard of propriety?)
is vague. The clerk said that she, at least, deemed no other numbers or
letters to be "appropriate."
The law also requires the state to keep the application on file even
after it is processed. According to W.S. 31-7-120,
>31-7-120. Records to be kept by division; exception.
>
> (a) The division shall maintain a readily available file of and
> suitable indexes for:
>
> (i) All license applications denied with the reasons for denial
> noted thereon;
>
> (ii) All applications granted;
>
> (iii) Every licensee whose license has been suspended or revoked
> and the reasons
> for the action;
>
> (iv) All accident reports and abstracts of court records of convictions
> received under the laws of this state with suitable notations for
> each licensee showing the convictions of the licensee and the
> traffic
> accidents in which he has been involved.
What's more, the application is, according to the state's open records
law, a public record that anyone may access. According to W.S. 16-4-201(a)(v),
>(v) "Public records" when not otherwise specified includes the original
>and copies of any paper, correspondence, form, book, photograph,
>photostat, film, microfilm, sound recording, map drawing or other
>document, regardless of physical form or characteristics that have been
>made by the state of Wyoming and any counties, municipalities and
>political subdivisions thereof and by any agencies of the state,
>counties, municipalities and political subdivisions thereof, or received
>by them in connection with the transaction of public business, except
>those privileged or confidential by law;
Needless to say, an open records law would be meaningless if a government
agency were allowed to censor the records on its own initiative before
revealing them! So, if the Social Security number were to be redacted,
the Department of Transportation would have to be specifically authorized
by law to do it. Alas, as in most states, there appears to be no Wyoming
statute declaring the form -- or the information on it, including the
Social Security number -- to be privileged or confidential. Worse still,
any such declaration would arguably be overridden by the Federal statute.
Wyoming Violates the Privacy Act
The Wyoming Department of Transportation (WYDOT) also violates the
Federal Privacy Act by failing to place a Privacy Act Notice on its
driver's license applications. 5 U.S.C. § 552a note (1982) (see
http://www.usdoj.gov/foia/privstat.htm), also called the Privacy Act of
1974, provides that:
>(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.
Without a Privacy Act notice (which does *not* appear on the current
application), WYDOT is not permitted to collect Social Security numbers
whether there is a Federal requirement for it to do so or not. This was
affirmed in Gredinger v. Davis (see
http://www.networkusa.org/fingerprint/page2/fp-ssn-davis.html).
Nonetheless, the state's Department of Transportation refuses to issue
the license based on an otherwise complete application.
Michigan's Challenge
The Michigan Secretary of State is challenging the Federal laws that,
together, require collection and disclosure of Social Security numbers.
The two press releases at
http://www.sos.state.mi.us/pressrel/active/010227-1n.html
and
http://www.sos.state.mi.us/pressrel/active/010104-1n.html
describe the progress of the case.
When the Federal law was modified to encompass all drivers' licenses, it
was claimed by overzealous legislators that the change was necessary to
collect drivers' Social Security numbers to pursue deadbeat parents. The
Michigan Secretary of State, however, says that it would actually make
their system LESS effective, not more, because of the actual logistics of
tracking deadbeat parents. In the second press release cited above, her
office wrote:
>Secretary Miller argued in her exemption requests that the collection of
>Social Security numbers would violate the strong interest her department
>has in protecting customer privacy. The process would be expensive and
>counterproductive to measures already in place by the state to track
>those owing child support. It was also noted that in addition to being
>an unfunded federal mandate, the law raises questions about its ability
>to protect the welfare of Michigan children.
>
>This federal law applies only to citizens with driver licenses, which
>severely limits the ability to locate deadbeat parents. Consequently in
>Michigan, more than four million people would be overlooked because the
>databases containing records of suspended drivers, state identification
>card holders and those on the Qualified Voter File would be excluded
>from any search.
>
>Currently, the Michigan Family Independence Agency (FIA) conducts
>searches of all Secretary of State databases for deadbeat parents using
>a name, or even part of a name. It is successful in obtaining
>identification 90 percent of the time, according to figures from FIA and
>the Secretary of State. The Secretary of State estimates that the
>success rate would drop to about 60 percent under the federal law
>primarily because searches would be limited to only residents with
>driver licenses. Other problems with the federal law identified by
>Secretary Miller include:
>
>* States would not be required to verify the Social Security numbers
>collected by their Department of Motor Vehicles or Secretary of State
>offices are correct.
>
>* The law represents a significant duplication of effort because both
>the Internal Revenue Service and Michigan Department of Treasury already
>have databases of Social Security numbers.
>
>* The law places the majority at risk for possible misuse of their
>Social Security numbers and identity fraud in attempts to target a
>minority guilty of delinquent child support payments.
Unfortunately, because the suit is being brought in only one Federal
district, a ruling in favor of the Michigan Secretary of State would not
be binding in the rest of the country.
My Status
Deb Ornelas, an administrator at the Wyoming Department of
Transportation, insists that I submit my Social Security number in order
to keep my license. She says that she believes that her hands are tied by
both state and Federal law. Indeed, due to a lack of vigilance by
legislators and citizens, they may well be unless the law is challenged
and that challenge is successful. Thus, I may need to decide between the
risk of trivially easy identity theft or loss of my right to drive.
Suggestions regarding how to proceed, and help in starting an initiative
to have the Federal laws changed, would be greatly appreciated.
[Brett Glass via risks-digest Volume 21, Issue 39]
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