The Social Security Number
Everything you ever wanted to know about the Social Security Number
Submitted by Beagle Bill
Illegitimi Non Carborundum
PART I YOUR RIGHTS WHEN AN SSN IS REQUESTED
1. Question: Do I have to get my newborn child a social security number?
Answer: No. There is no law that requires parents to get a social security number for their newborn children. The Social Security Administration was recently asked this very question. In their response the Assistant Commissioner of Social Security stated:
“The Social Security Act does not require a person to have a Social Security number (SSN) to live and work in the United States, nor does it require an SSN simply for the purpose of having one.”Many hospitals automatically generate social security number application forms (Form SS-5) for newborns before they leave the hospital. This is done under the “enumeration at birth” program instituted under the GATT legislation. But hospital personnel are required to ask the parent if they want to get a SSN for their child. The parent can simply decline the service. Many people, such as those who give birth at home, never deal with this hospital paperwork at all. Once a number is assigned to a child it is difficult if not impossible to get it expunged from the SSA records. (See “5. Can I rescind my social security number?”below.)
Subsequent to the “Family Support Act of 1988” (Pub. L. 100-485) some States now require parents to give their Social Security numbers in order to get a birth certificate for a newborn.As amended, Title 42 U.S.C. 405(c)(2)(C)(ii) includes the following:”In the administration of any law involving the issuance of a birth certificate, each State shall require each parent 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 the parent has more than one such number) issued to the parent unless the State (in accordance with regulations prescribed by the Commissioner of Social Security) finds good cause for not requiring the furnishing of such number. The State shall make numbers furnished under this sub clause available to the agency administering the State’s plan under part D of subchapter IV of this chapter in accordance with Federal or State law and regulation. Such numbers shall not be recorded on the birth certificate.”The federal law (another federal funding-contingent requirement) allows the SSN requirement to be waived for “good cause.” There is no definition included in the Act for “good cause.” And more importantly, there is absolutely NO PENALTY imposed on anyone for refusing to provide the “required” [requested] SSNs.
2. Question: Can I claim a tax deduction for dependents without usingSocial security numbers?
Answer: Probably not. In 1994 Congress enacted “Uruguay Round Agreements Act,”
(H.R.5110, Public Law: 103-465), to implement certain requirements imposed upon the member nations that signed on to the NAFTA and GATT treaties. The GATT implementing legislation includes the following provision: “TITLE VII–
REVENUE PROVISIONS, Subtitle E – (amendments to the U.S. Code)”SEC. 742.
TAXPAYER IDENTIFICATION NUMBERS REQUIRED AT BIRTH.
“(b) DEPENDENCY EXEMPTION- Subsection (e) of section 6109 is amended to read as follows:
“`(e) FURNISHING NUMBER FOR DEPENDENTS- Any taxpayer who claims an exemption under section 151 for any dependent on a return for any taxable year shall include on such return the identifying number (for purposes of this title) of such dependent.’
“During floor discussion on passage of this treaty-implementing legislation, the following exchange took place between Senators Moynihan and Domenici:
“Mr. DOMENICI: A final question of special concern is that GATT requires that every United States citizen receive an identification number at birth, and that this matter is unrelated and irrelevant to matters of trade. The answer is that this requirement is included in the implementing language of GATT; it is not part of the GATT itself. This language was included in the implementing legislation because to ensure accurate assessments of income taxes, improper deductions on tax returns must be minimized.
“Mr. MOYNIHAN: It is the Social Security number.
“Mr. DOMENICI: The Social Security number, that is right. As a consequence, this section is designed to reduce tax cheating by people who claim children they do not have, which has the effect of reducing their taxes. This is important because it has a significant effect on the amount of tax revenue collected, which directly correlates with the overall net cost of the agreement to the U.S. Treasury. Therefore, the United States has decided that it is critical to maintain an accurate accounting of its taxable population.” [Congressional Record, 1994, Page: S15275]
Additionally, in 1997 Congress passed the “Taxpayer Relief Act of 1997” –
(HR2014, Public Law: 105-34). Section 101 of the Act entitled “Child Tax Credit” amended the Internal Revenue Code, Title 26, section 151, subpart A of part IV of subchapter A of chapter 1, (regarding deductions for dependents), by adding Section (24), so as to now read:
“(e) No credit shall be allowed under this section to a taxpayer with respect to any qualifying child unless the taxpayer includes the name and taxpayer identification number of such qualifying child on the return of tax for the taxable year.”
Recently, the following letter was sent by the IRS to a family claiming their children on their tax return without supplying their social security number:
“This letter is your legal notice that we have disallowed your claim(s). We can’t allow your claim(s) for refund or credit for the period(s) shown above for the reason(s) listed below.
“PER SECTION 151(e) STATES THAT EACH DEPENDENT MUST HAVE AN IDENTIFICATION NUMBER IF THEY ARE BEING CLAIMED AS A DEPENDENT ON THE TAX RETURN. SECTION
152(e) HAS BEEN CORRECTLY APPLIED. (emphasis added)
“If you want to sue to recover tax, penalties, or other amounts, you may file a lawsuit with the United States District Court having jurisdiction or with the United States Court of Federal Claims. These courts are independent bodies and have no connection with the Internal Revenue Service.
“The law permits you to do this within 2 years from the mailing date of this letter. If you decide to appeal our decision first, the 2-year period still begins from the mailing date of this letter.
“However, if you signed an agreement that waived your right to the notice of disallowance (Form 2297), the period for filing a lawsuit began on the date you filed the waiver.”
The IRS Code states that the “taxpayer identification number, (TIN)” in certain cases is a social security number. Claims for dependent children without associated SSNs may be disallowed. (See also “4. Can I get a TIN?” included in this FAQ.) The 1998, Form 1040 instructions state, regarding dependents, “If you do not enter the correct SSN, at the time we process your return, we may disallow the exemption claimed for the dependent.”
3. Question: Can I give some other number when I am asked to provide an SSN?
Answer: Yes, with caveats.
Giving ANY false information to a government agency for any reason may result in prosecution, fines, and even imprisonment. Title 42 U.S. Code, section 408 imposes fines and penalties for misuse of social security numbers. Title 18 U.S.
Code, section 1028 imposes criminal penalties and fines for misuse of government documents. It is a violation of one or more federal laws to make a misrepresentation to a federal agency.
A person may arrange by agreement with a private concern, business, or enterprise to use a substitute number other than a social security number, but it should be made clear that the number being used is not an SSN.
4. Question: Can I get a TIN?
Answer: Only if you are an “alien.” A “TIN” (an IRS “Taxpayer Identification Number”) may be assigned ONLY to “alien” individuals who are not eligible to work in the United States. Additionally, TINs are issued by the Internal Revenue Service, unlike the SSN which is the only number issued by the SSA. A TIN is not an alternative or a “substitute” for a SSN.
The Code of Federal Regulations, Title 26 – Internal Revenue, ChapterI, Sec. 301.6109-1 titled “Identifying Numbers” states that:
“(a)(1)(i) [T]here are generally three types of taxpayer identifying numbers:
social security numbers, Internal Revenue Service (IRS) individual taxpayer identification numbers, and employer identification numbers. Social security numbers take the form 000-00-0000, IRS individual taxpayer identification numbers take the form 000-00-0000 but begin with a specific number designated by the IRS, and employer identification numbers take the form 00-0000000. Both social security numbers and IRS individual taxpayer identification numbers identify individual persons… For the definition of IRS individual taxpayer identification number, see paragraph (d)(3) of this section.”
“(d)(3)(i) The term IRS individual taxpayer identification number means a taxpayer identifying number issued to an alien individual by the Internal Revenue Service… the term alien individual means an individual who is not a citizen or national of the United States.”
5. Question: Can I rescind my social security number?
Answer: You can only file a request for the SSA to delete the record of your SSN “application,” they will not rescind a SSN once assigned. The Social Security Act Does Not Require Anyone to Obtain a SSN: It should be first noted that the Social Security Act does not require anyone to obtain a Social Security number.
The Social Security Administration has consistently stated as follows:
“The Social Security Act does not require a person to have a Social Security number (SSN) to live and work in the United States, nor does it require an SSN simply for the purpose of having one.”
The SSA only says that if someone works without a SSN the agency cannot correctly credit the person’s account for the period in which they work without a number.
Rescinding Numbers Assigned to Children at Birth:
As stated earlier, many hospitals have (relatively recently) begun filling out social security number application forms (SSA form SS-5) for newborn children under the enumeration at birth program. The Social Security Administration can remove the record of a number being assigned to a child, however they will resist doing so. In fact, the SSA office will likely try to intimidate a parent into keeping a number once one has been assigned. A parent requesting to have a number removed from their child will be treated in accordance with SSA Policy RM00205.95, as indicated below:— SSN ASSIGNED THROUGH ENUMERATION AT BIRTH RM 00205.95 Parent Objects to Assignment of SSN to Child Under the Enumeration at Birth (EAB) Program A. POLICY – SSA does not change, void or cancel SSNs. In special situations, SSA will delete the applicant information from the SSN record.
B. PROCEDURE – PARENT OBJECTS TO SSN
– A parent may object when a child is assigned an SSN via the EAB program. If a child is issued an SSN card via the EAB program (the online Numident shows “FMC:6” for Enumeration at Birth items) and the mother states she answered “no” to the enumeration question when providing birth information for the newborn, assume that either the hospital made an error or the State inadvertently keyed “yes”. Explain that the child will need an SSN eventually if he/she will be listed as a dependent on an income tax return. If the parent accepts this explanation and will keep the SSN card, stop. If this explanation is not acceptable explain that on SSA’s records, the record will remain dormant, unless earnings are posted. If the parent accepts this explanation and will keep the SSN card, stop. If the parent accepts the explanation but does not want the SSN card:
– repossess and destroy the card (RM 00201.060).
– explain that if the parent later applies for an SSN card for the child, the same number will be assigned.
C. PROCEDURE – REQUEST FOR DELETION
If the parent insists that we delete the applicant information from the SSN record, explain that the deletion action may take several months:
– Document the parent’s objection and advise the parent that the case must be sent to the central office (C0) for review.- Explain to the parent that if we delete the applicant information from the SSN record, a subsequent SSN request (likely before the child is age one) will result in a different SSN. In addition, if and when the parent files for an SSN for the child in the future, he/she should enter “no” in item 10 on the SS-5.
– Forward all material pertinent to the situation (including F0 observation and recommendation) to the CO at:
Social Security Administration OPBP, DE, E&E 3-E-26 Operations Building, 6401 Security Boulevard, Baltimore, Maryland 21235
– Request CO review of the case and take action concerning the parent’s request for deletion of the data from the SSN record. – – Send a copy of the entire file to the appropriate regional office staff so that they can discuss ongoing problems with the involved State.
[End of Policy Statement]
The Social Security Administration will remind the parent that, (as stated elsewhere in this FAQ) a parent can no longer claim their child for a “child tax credit” on IRS tax forms without identifying their child using a SSN. The SSA representative may also say that the child will need a SSN to enroll in school and in order to work. Although schools often do ask for a SSN when a child enrolls there is no requirement that the child must have one in order to go to school. (The issue of working without a SSN is addressed in this FAQ under Part II, Number 2: “Do I have to provide a social security number to my employer?”)
With persistence a SSN assigned to a child will likely be removed under the above procedure.
Applying to Have the SSN Application Removed From an Adult:
If a person decided they do not need or want an SSN, they may request that SSA delete the record of their SSN application. Since the SSA policy states that in special situations, SSA will delete the “application information from the SSN record,” the agency should honor all such requests.
The Social Security Administration May Not Remove The Record of Some SSNs:
A question was recently posed to the Social Security Administration regarding rescinding an adult’s Social Security number. The Agency’s response indicates that once payments have been made under an assigned account number, the record of the Social Security number — and all information about the person it was assigned to — will never be removed from SSA files.
The Social Security Administration policy manual, “RM 00205.095,” addresses this issue; it states:
“SSA does not change, void or cancel SSNs. In special situations, SSA will delete the application information from the SSN record.” This specific SSA policy statement is in regard to numbers assigned to children at birth.
However, the statement appears to be a “blanket” policy. Apparently this is the SSA policy with regard to all assigned SSNs. Accordingly, it appears that the SSA does not delete or remove SSNs from their records under any circumstance. All indications are that once a SSN has ever been assigned, the record is permanently maintained by the Administration.
According to the Social Security Regulations, a person must use a SSN if they apply for public benefits. An applicant for government benefits who does not have, or does not use, a SSN will be denied.
In conclusion, once a person has ever been assigned a SSN – and paid into the Social Security system – they will ALWAYS HAVE A SSN in the records maintained by the SSA. This fact alone should be enough to make people choose to NOT get Social Security numbers assigned to their children. If they do, however, the SSN will remain associated with them forever. Only in certain cases – and then, only with persistence – will the SSA remove the record of the “application” for a SSN.
Rescinding an SSN:
Some people have sent letters to the Social Security Administration stating that they were “rescinding” their social security number. They publicly “give it back” so to speak. However, the Social Security Administration continues to maintain a record pertaining to each person using their social security account number. It’s sort of analogous to the theme of the pop song “Hotel California” by the Eagles band where it says, “you can check out anytime you like, but you can never leave.” We are not aware of any cases where the SSA agreed to expunge an adults records. Neither are we aware of any occasion where the SSA refunded any amount of contributions.
Social Security is Not a Contract:
Some people argue that when they applied for a SSN, they “unknowingly” entered into a “contract” with SSA and that by rescinding their number they absolve themselves of any commitment they may have unknowingly made. But the simple fact is, Social Security is not a contract. This very important point is clearly brought out by Larry Becraft in his brief entitled “Comment Upon Voluntary Nature of Social Security.” Therein, he states:
“Is Social Security a contract? A private insurance policy is clearly a contract because the policyholder makes a promise to pay money to the insurance company, which in turn agrees to likewise pay the policyholder if certain contingencies arise. These “promise to pay” elements are essential for a contract, but they simply are not present with Social Security. First, Social Security “payments” are not premium payments, but are taxes instead.
“Secondly, there is no corresponding and enforceable ‘promise to pay’ from the Social Security Administration to its ‘beneficiaries.’ [G]overnment contracts are very special and require an appropriation from Congress before money can be expended and a contract made. Regarding Social Security, the only ‘beneficiaries’ who have any claim against the public treasury are those for whom Congress has already made an appropriation, which can last no longer than a year. The rest of the Social Security claimants in America have no enforceable claim on public funds, and all they possess is a ‘political promise,’ upon which Congress can renege at any moment. If Congress decided tomorrow to cut off all Social Security, nobody would have any claim for payment. Thus, Social Security has never been and is not now a contract.”
Simply applying for (and receiving) a Social Security number does not constitute the making of a contract. And additionally, the Social Security Administration has never asserted that Social Security was a “contractual” agreement.
PART II OBJECTING TO REQUESTS FOR SSNs BUSINESSES REQUESTING SSNs
1. Do I have to give my SSN to “XYZ” Company in order to get [some service or goods]?
Answer: No, but you may be denied the service or goods.
When an individual and a private company engage in any business transaction they are actually entering into a contractual agreement – whether written, stated, or implied. The contractual “terms and conditions” (which may be included in a written contract or may simply be a “policy”) may include a requirement for a social security number as a condition to conducting business. In such case it is totally up to the individual to decide whether or not they want to conduct business according to the contractual terms. If the person does not agree to the terms, they will notbe able to conclude the transaction. It’s that simple. There is no “law” specifically requiring a private company to conduct business with a person who refuses to comply with their contractual terms – even if it includes a requirement for a SSN.
The Social Security Administration in their publication “SSA Publication No. 05-10064”, July 1997, regarding business requests for social security numbers states:
“If a business or other enterprise asks for your Social Security number, you can refuse to give it to them. They may have another method of keeping their records. However, this may mean doing without the benefit or service for which your number was requested. Giving your Social Security number is voluntary, even when you are asked for the number directly.
“If requested, you should ask- “- why your Social Security number is needed; “- how your Social Security number is going to be used; “- what law requires you to give your Social Security number; and “- what are the consequences if you refuse to give your Social Security number. “Answers to these questions will help you decide whether you want to give your Social Security number to get the benefit or service. The decision is yours.”
The Social Security Administration recognizes and acknowledges the fact that in some cases individuals may not be able to “buy or sell” if they refuse to give out their social security number. However, many businesses will agree to use a number other than a social security number if asked to do so.
If you decide to resist giving out your social security number to a private company but you would like to do business with them anyway, you need to determine why they want your number. The two most likely answers are: 1) They simply want a unique nine digit number to enter into a computer database so that they can identify and distinguish you from other customers within their record keeping system; or, 2) They want to obtain a “consumer credit report” for use in determining whether they want to extend you credit. In the latter case, the business may have a contract with a credit-reporting agency to “exchange” information about you and your account, typically using a SSN. Both of these “reasons” can be satisfied, upon agreement, without necessitating the use of a SSN. A credit report can be obtained without using a SSN.
Once it is determined exactly why the business wants to obtain a SSN, then determine whether an alternative arrangement can be worked out.
The “simple” answer to the question as to whether a person must give their social security number to engage in some business transaction is “NO”. But the business may refuse to conduct business with the resistor. The options here are to either: 1) give out your social security number; 2) do without the goods, benefit, service, or access; 3) persuade the other party to amend or modify the contractual terms and conditions; or, 4) sue the other party in court – the grounds for such suit would have to be determined by tort merits of the complaint (perhaps discrimination).
2. Do I have to give my employer my SSN?
Answer: No. Employment is a form of contractual agreement. Generally, the same points made in the previous answer regarding contractual agreements also apply here.
If the terms of employment include a requirement that the employee must supply their social security number then there are basically four options available: 1) supply the requested SSN; 2) ask to work out another arrangement where the SSN isn’t required; 3) don’t work for that company; or, 4) sue the business in court.
An employee or job applicant may be able to receive protection from coerced submission of a SSN for employment purposes by relying on federal anti-discrimination laws. The Civil Rights Act of 1964 Section 703(a)(1), Title VII, 42 U.S.C. Section 2000e-2(a)(1) makes it unlawful to discriminate against any employee or perspective employee on the bases of his or her religion. (This is in addition to the basic Constitutional First Amendment protection of the free exercise of religion.)
In 1992 a complaint was filed with the Equal Employment Opportunity (EEOC) by a Mr. Hanson, wherein he claimed as a “Christian Fundamentalist” he could not obtain or use a SSN. The EEOC filed suit against the business that fired Mr. Hanson on his behalf. The suit claimed that firing Mr. Hanson due to his not having or getting a SSN constituted discrimination due to his religious belief. The business claimed that they were required to either force Mr. Hanson to get a SSN or fire him because they were required by certain IRS Code sections and regulations to report all employees’ SSNs on certain IRS forms. The business also responded that it was required by federal law to report all employees’ SSNs to the Immigration and Naturalization Service (INS).
The EEOC countered that the only requirement imposed upon a businesses by the various tax laws was that employers must “request” an employee’s or potential employee’s taxpayer identification number, and that there was be no penalty for a business not succeeding in obtaining one. The EEOC, itself a federal government agency, stated in its “Plaintiff’s Response to Defendant’s Motion to Dismiss” that:
“the Internal Revenue Code and the regulations promulgated pursuant to the code do not contain an absolute requirement that an employer provide an employee social security number to the IRS.”
The EEOC further argued that employers were permitted to use any one of several acceptable forms of identification and employment eligibility verification other than a SSN and still comply with the Immigration Reform Act requirements.
The Court denied the employer’s motion to dismiss the complaint. A settlement was later reached in which Mr. Hanson was awarded back pay. The Court’s final decree setting out the terms of the settlement stated that: “The [employer] shall be permanently enjoined from terminating an employee for failure to provide a social security number because of religious beliefs.”
A sincerely held religious belief may serve as a valid basis for objecting to requirements for a social security number for employment purposes. A business could be found guilty of discrimination for taking adverse action against an employee or applicant due to their refusal to use or obtain a SSN.
GOVERNMENTAL AGENCIES REQUESTS FOR SSNs
3. Do I have to give the State my SSN to get a driver’s license?
(The answers addressed in this section apply equally to State “Voter Registration” and “Blood Banks,” in that the same sections of law reviewed herein are worded similarly for these two additional State administered functions.)
Answer: No, but you may be unlawfully denied the license depending on the particular State you live in. Driver licensing, voter registration, and blood donation laws vary from state to state. Federal, state, and local laws regulate what information may or may not obtained from individuals by governmental agencies. These laws govern how and when information may be requested as well as what uses may or may not be made of the personal information collected by government agencies.
By far the most common “governmental” request for social security numbers comes from state driver’s licensing agencies.
When someone applies for a driver’s license and objects to giving out their SSN the license administrator will often respond, “Federal law requires that we must get it,” or “Federal law authorizes us to get it.” So, to answer the questions regarding use of SSNs by government agencies we must first look at the controlling “Federal” laws.
Title 42 of the United States Code, Section 405(c)(2)(C)(i) “PERMITS” States to use social security numbers in the administration of their driver licensing programs. However, this is not a federal “requirement” that States must obtain social security numbers when issuing driver’s licenses. Therefore, Title 42 U.S.C. 405(c)(2)(C)(i) is not an “authority” for states to require SSNs. The Social Security Administration addressed this fact in their publication “SSA Publication No. 05-10002”, October 1996, which states:
“You should not use your Social Security card as an identification card.
However, several other government agencies [other than SSA] are permitted by law to use Social Security numbers, but there is no law either authorizing or prohibiting their use.”
As shown in the above quoted publication, several government agencies are “PERMITTED” by law to use social security numbers, but THERE IS NO LAW “AUTHORIZING” such use. An important recent U.S. Supreme Court decision reaffirmed the fact that the federal government cannot compel [force] states to enforce a federal regulatory program – such as requiring SSNs. In the case “Sheriffs Mack and Printz v. The United States,” June 27, 1997, the nation’s highest court stated:
“We held in “New York” that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Under the Printz line of U.S. Supreme Court cases the federal government cannot, even if it wanted to, force states to obtain a social security numbers as a condition to getting a driver’s license. To do so would constitute a federal subjugation of each State law-making lawmaking authority in direct violation of the fundamental and historical legal principle of “dual sovereignty”.
However, Congress HAS enacted a multitude of new laws (all connected to federal funding) which do require states to comply with federal “guidelines” in order to receive federal money. Several of these new laws include “requirements” that the states must enact state laws requiring their licensing agencies to obtain social security numbers. Funding contingent type laws are so relatively new that the U.S. Supreme Court has not ruled on their constitutionality. The U.S. Supreme Court did, however, comment on this very issue in Printz, and the Court indicated that the practice of enacting federal funding contingent laws is as unconstitutional as the direct commands themselves. (More on these type laws can be found below in Part III of this FAQ in the section entitled: NEW FEDERAL REQUIREMENTS FOR SOCIAL SECURITY NUMBERS.) We can safely conclude that Title 42 U.S. Code, Section 405(c)(2)(C)(i) does not, and cannot impose a requirement that the states must obtain social security numbers from driver’s license applicants.
The next point to consider then is whether there are any federal regulatory requirements which “regulate” the use of social security numbers when a State is “permitted” or “allowed” to obtain them for any purpose.Then we must determine whether or not the “regulatory” law is “inconsistent,” with section 405(c)(2)
This brings us to the Privacy Act. The Privacy Act of 1974 By far the most significant Federal law regulating the uses that may be made of social security numbers is the “Privacy Act of 1974” (Pub. L. 93-579, Section 7). The Privacy Act clearly “regulates” the use of social security numbers by federal, state, and local government agencies. Section 7 of the Act states:
”(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.and, ”(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.” An adjacent section of the Privacy Act found at 7(a)(2) states:
”(a)(2) [The] provisions of paragraph (1) of this subsection shall not apply with respect to… any disclosure which is required by Federal statute…”
As can be seen here, The Privacy Act at Section 7(a)(2) provides an exception to the prohibitive statement in paragraph (1), (the absolute prohibition against any federal, state, or local agency denying to any individual a benefit, right, or privilege due to their refusal to disclose their social security number). The key words used in the exception are found in the phrase “required by federal statute.” As we saw in “Printz,” the federal government cannot enact laws “compelling” (or requiring) a State to obtain SSNs. Which means that federal law cannot “require” a state agency to obtain social security numbers. Therefore, the “exception” found at 7(a)(2) does not, (and cannot), apply to state requests for SSNs.
Title 42 U.S.C. section 405(c)(2)(C)(v) also states:
“(v) If and to the extent that any provision of Federal law heretofore enacted is inconsistent with the policy set forth in clause (i), such provision shall, on and after October 4, 1976, be null, void, and of no effect.”
Paragraph, “(i)” is the permissive clause of Section 405 reviewed earlier which “allows” or “permits” the states to use a social security number for their driver’s licensing programs. There is nothing “inconsistent” with the above interpretation. In fact, any other interpretation would create inconsistencies. Hence, there is nothing “inconsistent” with the federal regulatory provisions of the Privacy Act with regards to the “permissive” clause found in 42 U.S.C. section 405(c)(2)(C)(i). It follows then that while 42 U.S.C. section 405(c)(2)(C)(i) does permit states to use social security numbers in the administration of their driver licensing programs, they must comply with the Privacy Act requirements and prohibitions. Unfortunately, many states are not complying. (It must be assumed that since the SSN is a federally assigned number, federal laws can be used to regulate and restrict its use.)
Are there any penalties for misuse of a person’s social security number by a state agency? In fact, there are.
Title 42 U.S. Code, section 408(a)(8) states:
“[Whoever] discloses, uses, or compels the disclosure of the social security number of any person in violation of the laws of the United States; shall be guilty of a felony and upon conviction thereof shall be fined under title 18 or imprisoned for not more than five years, or both.”
State Driver’s License Laws:
Some States have enacted State laws requiring social security numbers as a condition for being issued a driver’s license. Some states even use a person’s social security number as the driver’s license number. Most of these states, (but not all), have policies or laws which allow the use of alternative numbers when requested. In either case, when states require a social security number under the authority of state law, they are supposed to be regulated by the requirements and prohibitions contained within the Federal Privacy Act of 1974, Section 7.
Currently, a person living in a state with laws requiring a social security number as a condition to getting a driver’s license may have only one recourse – should they decide to force the issue they may have to file a lawsuit. As of this writing (2/0/99) two such suits are pending on appeal in both California and Alabama. (See “Religious Objections to Social Security Number Requirements” below.)
Of special note: A few states recently passed legislation which actually PROHIBITS the use of social security numbers for purposes related to the issuance of a driver’s licenses. Most notably, Georgia and Louisiana in 1997, both enacted State laws prohibiting their State’s licensing agency from obtaining a SSN from driver’s license applicants.
The answer to the driver’s license question is: No federal law “compels,” “authorizes,” or directly “requires” states to obtain social security numbers from driver’s license applicants. Even if such a federal law did exist – based upon recent U.S. Supreme Court decisions – states would be in violation of fundamental, court adjudicated constitutional principles should they decide to enforce it. All requirements for social security numbers by state government agencies, for any purpose, must comply with the regulatory requirements stipulated in the federal Privacy Act of 1974 prohibiting states from denying any right, benefit, or privilegebecause of an individual’s refusal to disclose his social security account number. Whenever a state does request a SSN it must provide the Privacy Act “notice” identifying: the uses that will be made of the number; whether supplying the SSN is mandatory or voluntary; and, the statutory authority for the request.
Religious Objections to Requirements for a SSN as a Condition for Licensing:
Several people have already won court cases objecting on religious grounds to State requirements for a SSN as a condition to receiving a driver’s license. In “Leahy v. District of Columbia” Circuit Judge Ruth Bader Ginsburg, (now a U.S. Supreme Court Justice), wrote the Court’s opinion upholding John C. Leahy’s religious objection to providing his social security number in order to get a driver’s license. Also, as recently as October 1997, five plaintiffs sued the City of Los Angeles, on religious objection grounds, objecting to the State’s requirement that driver’s license applicants must provide a social security number as a condition to getting a license. They won the case in the State Superior Court but the State is currently appealing. A similar case is pending in Alabama on appeal.
QUASI-GOVERNMENTAL ENTITIES REQUESTS FOR SSNs
4.Do I have to give banks and non-governmental entities a social security number?
Answer: No (For the purpose of this FAQ, entities such as banks and utility companies are classified as “quasi-governmental” entities. Public schools and universities, banks, utility companies, libraries, and even airlines are also grouped in this class. All of these entities generally provide social services and are typically regulated by federal, state, or local laws. The Postal Service is also classified in this group because they are regulated under the banking laws when issuing postal money orders.)
As publicly regulated entities these “quasi-governmental” entities must also comply with the requirements and prohibitions of the Privacy Act. However, here again, not all of them do. (See “Yeager v. Hackensack under “Social Security Number Related Court Cases” in the FAQ Addendum.) Each “misuse” of a social security number by one of these entities must be challenged on a case-by case basis. This may necessitate a lawsuit.
Banks (Financial Institutions):
Banks may deny service or resist opening an account or transferring funds for an individual who does not provide a social security number when requested. Banks are required by federal regulations to make and file certain reports on the purchase of money orders and other transfers of funds. This requirement is in furtherance of the federal Financial Crimes Enforcement Network (FinCEN) laws. As of January 16, 1996, Title 31 USC Sec. 5325, Subtitle IV – Chapter 53 – Subchapter II, imposes a requirement upon financial institution for the filling of reports for certain financial transactions.
Title 31 USC Sec. 5325 Section 5325, titled “Identification required to purchase certain monetary instruments” states that:
“(a) No financial institution may issue or sell a bank check, cashier’s check, traveler’s check, or money order to any individual in connection with a transaction or group of such contemporaneous transactions which involves United States coins or currency… in amounts or denominations of $3,000 or more unless the individual has a transaction account with such financial institution… or the individual furnishes the financial institution with such forms of identification as the Secretary of the Treasury may require in regulations…”
The regulations state that banks must request a social security number when establishing a bank account for an individual and from anyone that does not have an established account seeking to obtain “bank checks, cashier’s checks, traveler’s checks, or money orders.” Pursuant to Title 31, Code of Federal Regulations, Section 103.34, banks are required to ask for the Social Security number when opening a bank account or issuing a certificate of deposit for a new customer. But “in the event that a bank has been unable to secure, within the 30-day period specified, the required identification, it shall nevertheless not be deemed to be in violation of this section if (i) it has made a reasonable effort to secure such identification, and (ii) it maintains a list containing the names, addresses, and account numbers ofthose persons from whom it has been unable to secure such identification, and makes the names, addresses, and account numbers of those persons available to the Secretary as directed by him.” This provision applies also to purchases of bank checks, cashier’s checks, traveler’s checks, or money orders without providing a SSN.
Under the federal regulations (with the exception of casinos and the Postal Service) financial institutions are required to file “reports” for all financial transactions in amounts of $10,000.00 or more. And all institutions which issue or sell “bank checks and drafts, cashier’s checks, money orders and traveler’s checks” must file a report on all purchases made by a single person totaling $3,000.00 or more.
The Code of Federal Regulations, Title 31, section 103, states that(as of July 1, 1997):
“Subpart A – Definitions “Sec. 103.11 Meaning of terms.
“(l) Established customer. A person with an account with the financial institution, including a loan account or deposit or other asset account, or a person with respect to which the financial institution has obtained and maintains on file the person’s name and address, as well as taxpayer identification number (e.g., social security or employer identification number) or, if none, alien identification number or passport number and country of issuance, and to which the financial institution provides financial services relying on that information.”
“Subpart B–Reports Required To Be Made “Sec. 103.20 Determination by the Secretary.
“The Secretary hereby determines that the reports required by this subpart have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.”
“Sec. 103.22 Reports of currency transactions.
“(a)(1) Each financial institution other than a casino or the Postal Service shall file a report of each deposit, withdrawal, exchange of currency or other payment or transfer, by, through, or to such financial institution which involves a transaction in currency of more than $10,000.”
“Sec. 103.28 Identification required (for filing reports).
“Before concluding any transaction with respect to which a report is required under Sec. 103.22, a financial institution shall verify and record the name and address of the individual presenting a transaction, as well as record the identity, account number, and the social security or taxpayer identification number, if any, of any person or entity on whose behalf such transaction is to be effected…”
“Sec. 103.29 Purchases of bank checks and drafts, cashier’s checks,money orders and traveler’s checks.
“(a) No financial institution may issue or sell a bank check or draft, cashier’s check, money order or traveler’s check for $3,000 or more in currency unless it maintains records of the following information: (2) If the purchaser does not have a deposit account with the financial institution: (i)
(A) The name and address of the purchaser; (B) The social security number of the purchaser, or if the purchaser is an alien and does not have a social security number, the alien identification number…”
U.S. Post Office:
The U.S. Postal Service has implemented a policy (again to implement the requirements of the federal Financial Crimes Enforcement Network (FinCEN) laws) requiring Postal employees to report “suspicious activities” when selling Postal Money Orders. Anyone attempting to purchase a Postal Money Order in amounts over $3,000.00 is requested to provide a SSN which is to be included on their Form 8105A. Anyone who resists or is reluctant about providing their SSN will be reported on Postal Form 8105B. A Money Order purchased without supplying an SSN is considered “suspicious activity” according to the new Postal guidelines.
Universities are regulated by the Privacy Act. Furthermore, the U.S. Supreme Court ruled in “Plyler v. Doe”, [457 U.S.202 (1982)] that requiring SSNs from students was discriminatory. The ruling must be enforced “equally,” which means that the prohibition against universities requiring social security numbers from students applies to all students. Most universities still expect students to have and to use an SSN. Some schools will even try to coax new students into filling out an SSN application form, but most schools and universities will accommodate an alternative proposal. And none may deny admittance based on the lack of an SSN.
Title 14 CFR 121.693(e), administered by the Federal Aviation Administration (FAA), requires operators of large aircraft to collect passenger names for each flight. In recent years, air carriers have begun to routinely check identification for every passenger. Currently, there is no requirement that airlines collect, record, or copy information from identification documents.
Section 203 of Public Law 101-604 (49 USC 44909) provides that the Secretary of Transportation shall require all United States air carriers to provide passenger manifests for flights. The statute further notes that the Secretary of Transportation shall consider the necessity and feasibility of requiring United States carriers to collect passenger manifest information as a condition for passenger boarding of any flight subject to the passenger manifest requirements.
On September 9, 1996, Vice President Al Gore submitted an initial report to President Clinton from the White House Commission on Aviation Safety and Security with recommendations regarding passenger manifests. Recommendation 15 states: The Commission believes that Section 203 of the 1990 Aviation Security Improvement Act, which requires airlines to keep a comprehensive passenger manifest for international flights, should be implemented as quickly as possible. While Section 203 does not apply to domestic flights, the Commission urges the Department of Transportation to explore immediately the costs and effects of a similar requirement on the domestic aviation system. The Final Report of the Congress, issued February 12, 1997, contained the same recommendation.
On March 13, 1997 the Department of Transportation entered an “Advance Notice of Proposed Rulemaking (ANPRM)(Volume 62, Number 49) for the purpose of requesting information concerning operational and cost issues related to U.S. air carriers collecting basic information (e.g., full name, date of birth and/or social security number, emergency contact and telephone number) from passengers traveling on flights within the United States. This proposal is being issued pursuant to the Aviation Disaster Family Assistance Act of 1996. As of the date of this writing, the proposed rule which would require airlines to collect SSN from domestic passengers has not been finally adopted. Under present laws and regulations the airlines are not required to get social security numbers from passengers, but policy appears to be trending in that direction.
On June 25, 1985, a group of residential customers filed a complaint against the Hackensack New Jersey water company alleging violations of their constitutionally and statutorily protected privacy rights. Specifically, the plaintiffs claimed that the information sought by the water company, (which included the customer’s social security number), was protected by the Privacy Act of 1974, Pub.L. No. 93-579, section 7. In the final order the court ruled that in this particular case the Privacy Act did regulate the actions of the privately operated water company, Hackensack, to the extent that it functioned under State or Local regulations.
PART III NEW FEDERAL FUNDING CONTINGENT REQUIREMENTS
1. What new requirements were imposed by the recently enacted federal laws?
Answer: Several. [see below] Although, the U.S. Supreme Court ruled in “Printz” that the federal government may not “compel” states to enforce federal regulatory programs, Congress has nevertheless recently engaged in a practice of “strong-arming” the states by threatening to withhold federal funding if the they do not conform to federal funding guidelines. Examples of the federal strong-arm tactics are widespread.
Public Law 104-193 (“The Contract With America, Welfare Reform Act”):
Title 42 U.S. Code, section 666 entitled ” Child Support and Establishment of Paternity” is a prime example of federal “enticement” legislation. This section of federal law was amended by Public Law 104-193, “The Welfare Reform Act of 1996,” and further amended by the “Balanced Budget Act of 1997,” (H.R.2015) so as to now read as follows:
“42 U.S. Code Section 666.
“(a) In order to satisfy section 654(20)(A) [the funding contingentrequirements] of this title, each State must have in effect laws requiring the use of the following procedures…:
“(13) Procedures requiring that the social security number of-
“(A) any applicant for a professional license, driver’s license, occupational license, or marriage license be recorded on the application…”
The above section appears to impose a requirement upon the states to obtain SSNs from applicants for, among other things, driver’s licenses. But, remember that this is a “funding contingent” requirement. And remember also that the Privacy Act regulates the uses that may be made of SSNs by local and state agencies.
Another clause within 42 U.S. Code section 666(a) (as most recently amended by the Balanced Budget Act of 1997) requires that states must have in place: “(16) Procedures under which the State has (and uses in appropriate cases) authority to withhold or suspend, or to restrict the use of driver’s licenses, professional and occupational licenses, and recreational licenses of individuals owing overdue support or failing… to comply with subpoenas or warrants relating to paternity or child support proceedings.”
In order to locate individuals and suspend their licenses, states will typically “key” on social security numbers (since Child Support Enforcement agencies use SSNs in the administration of their payment program).
Section 666 also requires that states must have provisions in place which allow the state’s Child Support Enforcement Agency to attach an individual’s financial holdings. This also is accomplished using an individual’s social security number.
Even private utilities such as, electric, cable television, and phone service providers must make customer records and information available to each state’s Child Support Enforcement agency. This information will be accessed using a customer’s SSN if they have one on file.
Public Law 104-193 also established the “New Hires Directory” – yet another imposition upon the states as a condition to receiving federal funding. Under the New Hires program states must establish and maintain a database directory known as the “State Directory of New Hires.” Each state must enact laws requiring every employer to report each newly hired employee – along with their social security number – to the state’s New Hires Directory.
Public Law 104-208 (Immigration Reform Act):
Another law passed in 1996, Public Law 104-208, imposes an unprecedented “threat” to the states regarding driver’s licenses. Section 656 provides that after October 1, 2000, federal agencies may not accept for any identification-related purpose a driver’s license issued by a state unless the license contains a social security account number that can be read visually or by electronic means. The only exception for this requirement is if the State does not require the license or document to contain a social security account number but requires that: “every applicant for a driver’s license, or identification document, must submit their social security account number; and an agency of the state verifies the number withthe Social Security Administration.” Due to strong public objections, as part of the 1999 budget legislation Congress placed a one-year moratorium on implementation of this provision.
Public Law 104-208 included several new enactments intended to crackdown on illegal immigration and unlawful employment of illegal immigrants. PL104-208 established what’s known as the “Employment Eligibility Confirmation System”.
And, the law provided for the establishment of the “Machine Readable Document” pilot program as part of the Employment Eligibility Confirmation System. The Machine Readable Document pilot program requires that the documents used to confirmemployment eligibility must be machine-readable and must contain the individual’s social security number. Only a few States are presently participating in this pilot program.
Conclusion Regarding New Federal Funding Requirements for SSNs:
State requirements for SSNs – based on funding contingent federal enactments – are very new. States may take the position that they are not bound by the Privacy Act prohibitions regarding the use of social security numbers because, they will argue: “federal law requires” or “authorizes” them to obtain social security numbers. However, none of the above cited sections of recently enacted federal law constitute “authority” for the states to demand social security numbers. Court challenges will likely be necessary in order to settle the matter regarding these relatively new types of federally implemented “coercion”
PART IV ADDENDUM – WHO NEEDS A SOCIAL SECURITY NUMBER
Assignment of Social Security Numbers:
The section of federal law that addresses issuance and assignment of social security numbers is found at Title 42 U.S. Code, Section 405(c)(B)(i), (Pub. Law 92-603, 86 Stat. 1329, Section 137 of the Social Security Amendments of 1972).
Here, it states that the Commissioner of Social Security is to take affirmative measures to assure that social security account numbers will, “to the maximum extent practicable,” be assigned to all members of the appropriate groups or categories ofindividuals who m ay be assigned numbers.
The law provides that the “appropriate” classes of individual to whom the Commissioner may assign social security numbers are: aliens; individuals who want to receive federal benefits; (including children who fall into either of those two classes); and the children of members of either of those two classes.
Code of Federal Regulations
301.6109-1 “(d) Obtaining a taxpayer identifying number-
“(1) Social security number.”Any individual required to furnish a social security number pursuant to paragraph (b) of this section shall apply for one, if he has not done so previously, on Form SS-5… Individuals who are ineligible for or do not wish to participate in the benefits of the social security program shall nevertheless obtain a social security number if they are required to furnish such a number pursuant to paragraph (b) of this section.
“(2) Employer identification number- [snip] “(3) IRS individual taxpayer identification number-
“The term IRS individual taxpayer identification number means a taxpayer identifying number issued to an alien individual by the Internal Revenue Service, upon application, for use in connection with filing requirements under this title. The term IRS individual taxpayer identification number does not refer to a social security number…”
“(iii)An applicant for an IRS individual taxpayer identification number must submit such documentary evidence as the Internal Revenue Service may prescribe in order to establish alien status and identity.”
Note that individual “Taxpayer Identification Numbers, TINs” may only be issued to “alien individuals” who may not be issued a social security number as you will see below. The application for a “TIN,” the W-7, plainly states on the face and in the instructions that only “aliens” may apply for a TIN.
If you apply for a social security number for yourself or for your child, you must either file under the “alien” status, or otherwise it is assumed that you are, or expect to be, a recipient of some federal benefit.
In fact, if a person not qualified to receive a social security number and nevertheless applies for one, they may in violation of Title 42 U.S. Code Section 408 for falsely claiming eligibility, or Title 18 U.S. Code, section 1028 for misuse of government documents.
Federal Requirements for Social Security Numbers:Applicants for public benefits must have and use a social security number in order to receive the benefit.
Title 42 U.S. Code, Section 405(c)(F) states:
“(F) The Commissioner of Social Security shall require, as a condition for receipt of benefits under this subchapter, that an individual furnish satisfactory proof of a social security account number assigned to such individual by the Commissioner of Social Security or, in the case of an individual to whom no such number has been assigned, that such individual make proper application for assignment of such a number.”
Courts have ruled that in order to receive government benefits from any federally funded benefit program – even if the funds are State administered – a person must use a social security number when applying. In the case of “PEISTER v. STATE of Colorado, DEPARTMENT OF SOCIAL SERVICES,” Peister objected, based on freedom of religion grounds, to using a social security number in order to get Colorado’s Old Age Pension benefits. The court ruled that a person must use their social security number in order to receive benefits under the State’s Old Age Pension Benefits Program.
Treaties and Social Security
A reference to social security is included in the United Nation’s “UNIVERSAL DECLARATION OF HUMAN RIGHTS” treaty. Article 22 of the treaty declares that: “Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”
Another treaty, the UN’s “INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS,” Article 24 states:
“2. Every child shall be registered immediately after birth and shall have a name.”
Social Security is Global As a consequence of various international treaties, every industrialized nation has instituted a national “social security” program. Under the GATT agreements, every signatory country is required to “register” (number) all child at birth.
Presently, over 170 countries currently have a social security system in place. The list includes every major country in the world. In terms of population, the world’s 10 largest countries which have a social security system are:
3. United States
Followed by the next 15 largest countries: Germany, Mexico, Italy, France, Philippines, Turkey, Thailand, Egypt, Spain, South Korea, Poland, Iran, Burma, El Salvador, and Ethiopia, each with a population of between 30 and 80 million people.
The complete list of Countries with existing Social Security programs includes:
Afghanistan, Albania, Algeria, Andorra, Antigua-Barbuda, Argentina,Armenia, Australia, Austria, Azerbaijan, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bermuda, Bolivia, Botswana, Brazil, British Virgin Islands, Bulgaria, Burkina Faso, Burma (Myanmar), Burundi, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, China, Colombia, Congo (Brazzaville),Congo (Kinshasa), Costa Rica, Cote d’Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Ethiopia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guernsey, Guinea, Guyana, Haiti, Honduras, Hong Kong, Hungary, Iceland, India, Indonesia, Iran, Iraq, Ireland, Israel, Italy,Jamaica, Japan, Jersey, Jordan, Kazakhstan, Kenya, Kiribati, Korea-South, Kuwait, Kyrgystan, Latvia, Lebanon, Liberia, Libya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Mali, Malta, Marshall Islands, Mauritania, Mauritius,Mexico, Micronesia, Federated States of Moldova, Monaco, Morocco, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Oman, Pakistan, Palau, Panama, Papua, New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Russia, Rwanda, Saint Kitts & Nevis, Saint Lucia, Saint Vincent and the Grenadines, San Marino, Sao Tome and Principe, Saudi Arabia, Senegal, Serbia and Montenegro, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, Somalia, South Africa, Spain, Sri Lanka, Sudan, Swaziland, Sweden, Switzerland, Syria, Taiwan, Tanzania, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Uganda, Ukraine, United Kingdom, United States, Uruguay, Uzbekistan, Vanuatu, Venezuela, Vietnam, Western Samoa, Yemen, Zambia, and Zimbabwe [http://www.ssa.gov/statistics/ssptw97.html]
Social Security Number Court Cases
– Callahan v. Woods 1981 religious objection to requirement that a minor must obtain a social security number to receive federal benefits.
– Callahan v. Woods 1984 again Callahan objected to a requirement that he get a social security number for his minor daughter.
-Yeager v. Hackensack 1985 case based on constitutional and Privacy Act objections to a New Jersey independent water company requirement for SSN.
– Leahy v. District of Columbia 1987 religious objection to the required use of social security number.
– Greidinger v. Davis 1993 objection to requirement to divulge a SSN as a condition to vote.
The Privacy Act The privacy Act of 1974 (Public Law 93-579) Section 7 states 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 (The) provisions of paragraph (1) of this subsection shallnot 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.” END