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What Does H.R.3475 Really Accomplish?

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U.S. Congressman Sam Johnson (TX) submitted a bill on 18 November 2011 called the “Keep IDs Safe Act.”[1] It was given the number H.R.3475.[2] As Rep. Johnson is the chairperson of the Social Security subcommittee of the House Ways and Means Committee, this bill was immediately scheduled for a hearing before his subcommittee. That hearing took place last week. It was delayed by a few minutes so that at least one other member of the committee could be present before testimony was taken. The testimony was limited to only those people whom Rep. Johnson had pre-approved.

 

When researching bills here in Massachusetts, I keep a three-column Excel spreadsheet. Column 1 contains the part of the Massachusetts General Laws which describe vital records where each paragraph is in a different row/cell down the column. Column 2 contains the text of the bill where each Section of the bill is in the same row as the text it will change, eliminate or simply alter. Column 3 shows the outcome of the bill’s action on the law.

 

H.R.3475 is a good example of the type of bill that is hard to understand as it takes a little bit of decoding. It is short and refers to altering existing law. What I want to do in this blog entry is take you through the decoding process for the bill. First, let’s look at this short-and-sweet bill.

 

H.R.3475

 

 

 

IN THE HOUSE OF REPRESENTATIVES

 

NOVEMBER 18, 2011

 

Mr. SAM JOHNSON of Texas (for himself, Mr. BERG, Mr. BRADY of Texas,

 

Mr. HERGER, Ms. JENKINS, Mr. MARCHANT, Mr. SCHOCK, and Mr.

 

TIBERI) introduced the following bill; which was referred to the Committee

 

on Ways and Means

 

A BILL

 

To protect information received by the Commissioner of

 

Social Security related to deceased individuals.

 

 

 

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

 

 

 

SECTION 1. SHORT TITLE.

 

 

 

This Act may be cited as the ‘‘Keeping IDs Safe Act of 2011’’.

 

 

 

SEC. 2. PROTECTING INFORMATION RECEIVED BY THE COMMISSIONER OF SOCIAL SECURITY RELATED TO DECEASED INDIVIDUALS.

 

 

 

Section 205(r) of the Social Security Act (42 U.S.C. 405) is amended—

 

 

 

(1) in paragraph (5) by striking ‘‘for statistical and research activities’’ and all that follows and inserting ‘‘for law enforcement, tax administration, and statistical and research activities conducted by Federal agencies and for statistical and research activities conducted by State agencies.’’; and

 

 

 

(2) by adding at the end the following new paragraph:

 

‘‘(10) Information related to a deceased individual received by the Commissioner of Social Security other than as described in paragraph (1) shall be treated for purposes of paragraph (6) in the same manner as information received as described in paragraph (1).’’

 

The law affected by the bill is the U.S. Code, called U.S.C. for short. In particular the law will affect the part about the Social Security Administration, for short 42 USC § 405.[3]

 

First we have to find r in the text. That is under the subtitle Use of Death Certificates to Correct Program Information. This is the section which describes the Death Master File, which we genealogists know as the Social Security Death Index.

 

Within r, paragraph 5 states:

 

(5) The Commissioner of Social Security may use or provide for the use of such records as may be corrected under this section, subject to such safeguards as the Commissioner of Social Security determines are necessary or appropriate to protect the information from unauthorized use or disclosure, for statistical and research activities conducted by Federal and State agencies.

 

Let’s alter this paragraph using the directions from the bill’s Section 2, paragraph 1 to see how this part of the law would be affected by the bill: First we need paragraph 1 in section r, which is:

 

(5) The Commissioner of Social Security may use or provide for the use of such records as may be corrected under this section, subject to such safeguards as the Commissioner of Social Security determines are necessary or appropriate to protect the information from unauthorized use or disclosure, for statistical and research activities conducted by Federal and State agencies for law enforcement, tax administration, and statistical and research activities conducted by Federal agencies and for statistical and research activities conducted by State agencies.

 

The law would not change to what uses State agencies are expected to put the Death Master File. It does, however, add to new uses to the Federal agencies: law enforcement and tax administration. But it doesn’t make the I.R.S. or law enforcement use the Death Master File. Instead it only states that the Social Security Commissioner can determine what safeguards are appropriate should Federal agencies involved in law enforcement or tax administration wish to use the Death Master File.

 

The next section of the bill takes more decoding. First we need to look at all the paragraphs references in the bill’s section 2, paragraph 2.

 

(r)(1) The Commissioner of Social Security shall undertake to establish a program under which—

 

 

 

(A) States (or political subdivisions thereof) voluntarily contract with the Commissioner of Social Security to furnish the Commissioner of Social Security periodically with information (in a form established by the Commissioner of Social Security in consultation with the States) concerning individuals with respect to whom death certificates (or equivalent documents maintained by the States or subdivisions) have been officially filed with them; and

 

 

 

(B) there will be (i) a comparison of such information on such individuals with information on such individuals in the records being used in the administration of this Act, (ii) validation of the results of such comparisons, and (iii) corrections in such records to accurately reflect the status of such individuals.

 

Paragraph 6 in section r states:

 

(6) Information furnished to the Commissioner of Social Security under this subsection may not be used for any purpose other than the purpose described in this subsection and is exempt from disclosure under section 552 of title 5, United States Code, and from the requirements of section 552a of such title.

 

The bill adds a new paragraph to this section. That paragraph states:

 

(10) Information related to a deceased individual received by the Commissioner of Social Security other than as described in paragraph (1) shall be treated for purposes of paragraph (6) in the same manner as information received as described in paragraph (1).

 

This triple-recursive paragraph does make my eyes cross. Taking a far view, paragraph 1 essentially says that (a) states send death certificate information to the Social Security Administration; and (b) the S.S.A. uses that information to update their own records.

 

The new paragraph 10 discusses information that S.S.A. gets about dead people from sources other than the states via death certificates. What information would that be? Truly, I don’t know. In any event, paragraph 10 says it should be treated in the same way as death certificate information. I think the key words here are:

 

may not be used for any purpose other than the purpose described in this subsection and is exempt from disclosure

 

My interpretation is that the death certificates or other (undefined) information can only be used by the S.S.A. to update their own records. The whole subsection, however, includes other paragraphs which state that this information is available to State and Federal welfare agencies, and to State driver’s license and voter registration agencies.

 

At this point, I sigh as I recognize a feeling I also get when decoding legislation in Massachusetts. I think, “But this bill is badly written!” Here are some of the things that don’t make sense to me:

 

  1. The bill would not force the I.R.S. to use S.S.A. files to ensure that children’s tax deductions are only taken by the parents of record. In fact, this bill has no affect whatsoever on I.R.S. policies.
  2. The bill does not order law enforcement to stop the unauthorized use of social security numbers of children by adults for fraud.
  3. The bill does not take into account the Federal Trade Commission’s Red Flag Rules and the access to the Death Master File mandated there.

 

In a fundamental way, this bill is a “no-op” in computer parlance. That is, it makes no serious or useful alteration to the issue at hand, which is the fraudulent use of children’s social security numbers. My belief is that this bill does not address the fundamental problem about how children’s social security numbers end up being mis-used. My goodness, it would take a whole new blog entry to explain how complex that issue is.

 

All this bill does is put exempt from disclosure language into a situation where information had been public.

 

The Mondaq information people have stated, in regards to this bill, "Based on the comments made at the hearing, it appears that it is more important to protect the identity of citizens and minimize improper payments by the SSA and other government agencies that pay benefits, than to make the death statistics available to the public. The key issue is whether Bill HR 3475 will be enacted by Congress with similar provisions to the format introduced by Chairman Johnson."[4]

 

I speculate that Rep. Johnson saw a great chance to gain media attention for protecting children. However he did not actually address the issue in a way which would have protected children.

 

Last year, according to the S.S.A., around 140,000 living children had their social security numbers stolen and used by adults.[5] These children don't appear in the Death Master File, a.k.a., the SSDI. This is a staggering statistic and it demands attention. Rep. Johnson, chair of the Social Security Committee, did not do one thing, not even one little thing, to protect those children who were victimized and whose names never ever appeared in the Death Master File. Frankly, I think the people of Texas as well as all Americans should be asking him for some answers about why his "Keep IDs Safe Act" does no such thing.

 



[1] You can read Rep. Johnson’s press release on his personal website, “Sam Johnson Introduces Keep IDs Safe Act,” 18 Nov 2011, Washington, DC; http://www.samjohnson.house.gov/News/DocumentSingle.aspx?DocumentID=269671 : viewed 15 Feb 2012.

[2] You can view, print, or download that bill by accessing it on the Government Printing Office website at http://www.gpo.gov/fdsys/pkg/BILLS-112hr3475ih/pdf/BILLS-112hr3475ih.pdf : viewed 15 Feb 2012.

[3] There are two sources you can use to read this law. It is online as a part of Cornell University’s site for accessible law (http://www.law.cornell.edu/uscode/text/42/405 ) and it is also reproduced on the Social Security Administration website (http://www.ssa.gov/OP_Home/ssact/title02/0205.htm ): viewed 15 Feb 2012.

[4] Bruce E. Baty, Kara Baysinger, Thomas E. Hampton and Stephanie Duchene, “United States: Hearing On Social Security Death Master File And The Effect On Life Insurers,” Mondaq, 13 Feb 2012; http://www.mondaq.com/unitedstates/x/164412/Insurance/Hearing+On+Social+Security+Death+Master+File+And+The+Effect+On+Life+Insurers : viewed 15 Feb 2012.

[5] Joseph Ruzich, “Not Even Kids Are Safe from Identity Theft: When Children Are Victims, Crime Can Go Undetected for Years, Experts Say,” Chicago Tribune, 25 Jan 2012; http://articles.chicagotribune.com/2012-01-25/news/ct-x-child-identity-theft-0125-20120125_1_identity-theft-resource-center-social-security-number-id-analytics : viewed 15 Feb 2012.

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Tagged in: DMF HR3475 SSDI Tax Fraud
Barbara serves as the Federal Records Director. She is a Board-certified genealogist who works for the Massachusetts Society of the Colonial Dames of America as a Verifying Genealogist and for the Welles Family Association as a Genealogist. Her volunteer service includes a stint as President of MGC. She holds a master’s degree in the management of non-profits from the Florence Heller School at Brandeis University. You can read her own blog, The Demanding Genealogist, at demandinggenealogist.blogspot.com.

Comments

  • Guest
    Polly Kimmitt Thursday, 16 February 2012

    Barbara, thank you for this detailed analysis!

  • Guest
    Michael E. Pollock Monday, 19 March 2012

    Barbara,
    I agree with you that this is a poorly worded bill, not just in terms of what it does not force the IRS and other entities to do, but in the discretion it ultimately gives the Social Security Commissioner in that while public access to the Master Death Index in not specifically denied, it allows for denial simply by the Commissioner deciding that providing access to the public falls under "may not be used...."

    I don't need to comment (do I?) about the impact specifically for genealogists, but I am distressed that the impact will extend beyond genealogists to the entire population in ways that, for many, will ultimately more harmful than Identity Theft.

    This bill could deny medical researchers at drug companies access to death records outside of their state of operation for purposes of identifying individuals who have either died of a specific disease, particularly if hereditary, and their descendants or immediate families for such purposes as determining what characteristics they have in common that may ultimately be the basis for establishing the cause and a means to cure the disease.
    Closure of the Master Death Index also not prevents the same research being done by individuals or family associations, perhaps even set up specifically because a specific hereditary illness is common in that family, but will prevent such information from being shared with medical researchers. Most kinds of collaboration between medical researchers is illegal as it is seen as a conspiracy to "corner the market" for a specific drug that is developed to treat/cure the illness, and it thus increases the cost to bring any given drug to market. Collaboration between medical researchers and either individual genealogists or family associations is not only the one area where "collaboration" is legal under current law, but also does not add appreciably to the cost of the medical research because it does not obligate the medical researcher to pay for the death certificates or any genealogical research resulting from the same.

    As my own Congressman is none other than Rep. Eric Cantor (R-VA 7), Majority Leader of the House, I have contacted him to point these things out. I also pointed out to him that the justifications used to argue for passage of HR 3475 are some of the same arguments offered in opposition to passage of Virginia House of Delegates bill HB 272 which, among other things REDUCES THE "PRIVACY RESTRICTION" on access to death from 50 years to 25 years, and EXPANDS THE DEFINITION OF WHO IS ENTITLE TO A RESTRICTED RECORD to include grandchildren and great-grandchildren.

    Lest anyone be tempted to attribute the passage of this bill to the Republican majorities in both houses of the Virginia General Assembly ignoring the "will of the people" which is how the national press has characterized bills to deregulate purchase of handguns, to require ultra-sound screenings before an abortion can be performed, and require I.D. be shown at polling stations before a citizen can vote, HR 272 passed the Virginia Senate, where ther Republican Majority results for the Republican Lieutenant Governor breaking any 20/20 tie, UNANIMOUSLY, and with only 1 dissenting vote in the House! The Virginia General Assembly ultimate found the dire predictions of the consequences of passage, notwithstanding the volumes of evidence to the contrary, unconvincing.

    Mr. Cantor's reply to my letter to him reads, in part, "This legislation would protect information received by the Commissioner of Social Security related to deceased individuals. H.R. 3475 has been referred to the House Ways and Means Committee for consideration. To date, no futher action has been taken on this measure. You may rest assured that I will keep your concerns in mind should this legislatiion come before me...."

    Given both the specific wording of Mr. Cantor's reply to me and the fact that he was the chief patron of the Patriot Act, which in my personal opinion bought into the same specious arguments that are being used to advocate passage of H.R. 3475, I have little confidence that he will vote against the bill, though it does hold out hope that there will never be a vote on the same.

    However, I would encourage anyone reading this to point to the relaxation of access to public records in not just Virginia, but also Pennsylvania, two radically different states in so many ways, as establishing that the facts show H.R. 3475 and other bills like it not only will not achieve their stated goals but will also do substantial harm.

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