Cindie Moore, NCTR Washington Counsel

Senator Judd Gregg (R-NH) added a provision to an appropriations bill that restricts how state and local governments use Social Security numbers (SSNs).  Many NCTR members use the numbers to identify plan participants.  The bill’s previous number was H.R. 4690; it is now H.R. 4942.

The provision is named “Amy Boyer’s Law” after a New Hampshire women who was murdered by someone who had purchased her SSN on the internet to locate her.  Senator Gregg chairs the Appropriations Subcommittee on Commerce, Justice, State and Judiciary.  The provision represents a worthy cause, but it was included in H.R. 4942 without debate, its language is unclear, and it contains many exceptions.

The original version included a preemption of state law.  Because some states provide more protection than would be granted by this provision, the National Conference of State Legislatures persuaded Senator Gregg to drop it.  Here are the highlights of the latest version. 

The provision states that “no person may display or sell to the general public any individual’s Social Security number, or any identifiable derivative of such number, without the affirmatively expressed consent, electronically or in writing, of the individual.”  “Display or sell to the general public” means “the intentional placing of an individual’s Social Security number, or identifying portion thereof, in a viewable manner on a web site that makes such information available to the general public, or otherwise intentionally communicating an individual’s Social Security number, or an identifying portion thereof, to the general public.”

Any individual who is aggrieved may bring a civil action in federal court for an award of actual damages, liquidated damages of $2,500, or liquidated damages of $10,000 if the violation was willful and resulted in profit or monetary gain.  A court may award reasonable attorney’s fees to the individual.  The violator is subject to other penalties. 

The provision exempts certain uses of SSNs: 

1) The federal government’s use for national security, law enforcement, public health, federal or federally-funded research conducted for the purposes of advancing knowledge, or in connection with a government benefit or program;

2) Uses in connection with certain enumerated federal laws;

3) Professional and commercial users who appropriately use “the information in the normal course and scope of their businesses for purposes of retrieval of other information, except that the professional or commercial user may not display or sell the number (or any identifiable derivative of the number) to the general public”;

4) Certain law enforcement uses; and

5) Uses in public records including, but not limited to, proceedings or records of federal or state courts.

We have identified the following general problems with the provision:

1) We are uncertain how it would affect state and local governments, including their retirement systems.  Although the governments do not generally display SSNs on a web site, they may use them in a way that might fall into the restriction relating to the “otherwise intentionally communicating an individual’s Social Security number, or an identifying portion thereof, to the general public;” 

2) The provision was included in H.R. 4942 without debate.  We have no idea, therefore, about Senator Gregg’s intent; 

3) Many federal government uses of SSNs are exempt as are “professional and commercial users.” These exemptions do not generally include state and local governments, and should cover them in the event the provision is not eliminated.

Rep. Harold Rogers (R-KY), who chairs the House Appropriations Subcommittee, has agreed to retain the provision in the final version of the bill, even though Kentucky state officials have warned him about its problems.  Thus, both House and Senate chairmen support it.  On a related matter, Rep. Clay Shaw (R-FL) sponsored legislation (H.R. 4857), similar to the Gregg-Rogers provision that passed the House Ways and Ways Committee in September. 

The President has threatened to veto H.R. 4942.  Among other reasons, he feels the provision fails to address in any meaningful way the real privacy concerns about SSNs.  Specifically, “it does not include needed protections against the inappropriate sale and display of individual citizens’ [SSNs] and [it] creates loopholes that seriously undermine the goal of the legislation to protect privacy.”  The latter point is directed to the exemption for business and commercial users of SSNs.

Because of the President’s veto threat, Congress will likely modify the provision.  We wrote Chairmen Gregg and Rogers on October 6 (see letter elsewhere on this website) urging them to strike the provision from the bill until a study is completed on the issue.