Privacy fears over identity theft leave access to SSN’s in question

From the Summer 2002 issue of The News Media & The Law, page 36.

By Kevin Capp

While efforts to seal Social Security numbers are hardly new, the looming specter of identity theft has ushered in a new wave of restrictions on such identifiers, leaving journalists worried about the availability of such a unique research tool.

To an average reader, unaware of how journalists use Social Security numbers in their research, restricting all access might seem like the prudent thing to do.

But Rosemary Armao, former managing editor of the Sarasota-Herald Tribune, believes journalists must find a better way to explain why reporters should have access to such numbers.

She offers examples such as the North Carolina newspaper that used Social Security numbers to track the movements of sex offenders via databases. She also cites newspapers that used them to examine the driving records of ambulance drivers, school bus drivers and taxi drivers.

If Social Security numbers are removed from public view, Armao said, “you’re cutting out a way to check systemic abuse stories.”

Brant Houston, executive director of Investigative Reporters and Editors, admits that the disappearance of Social Security numbers is partly the fault of reporters for failing to challenge the various privacy claims that shield the numbers.

“As journalists we’ve done an overall poor job of explaining what the First Amendment is and what privacy means,” he said.

Although they do not always push for completely barring access to Social Security numbers, many state and federal lawmakers have proposed — and, in some cases, passed — measures limiting their availability.

For example, at the federal level, the passage in 1994 of the Driver’s Privacy Protection Act prohibited states from releasing personally identifiable information — including Social Security numbers — from motor vehicle records. A number of bills during the 107th Congress aimed at restricting access to Social Security numbers have been proposed, but only one — the Privacy Act of 2001 — has received a hearing.

However, it appears that legislation at the state level creates the most restrictions for reporters.

Last year, the Georgia Assembly passed a bill which provides a disclosure exemption for public records containing birth dates as well as Social Security numbers. Public records with such information can only be accessed by reporters if they sign and notarize an affidavit attesting to the fact that they are with a legitimate news agency.

Tom Bennett, Georgia’s sunshine chair for the Society of Professional Journalists, said he finds it difficult explaining to reporters the ins and outs of the law. Comparing it to a “house of mirrors in a carnival,” he says that understanding all aspects of the law “takes stern stuff and a willingness to learn.”

David Milliron, who directs computer-assisted reporting at the Atlanta Journal-Constitution, has a similar take. He says that while “historically Social Security numbers were not exempted in the state of Georgia,” these days reporters have to “think very carefully” before submitting a request.

But securing the numbers can be a worthwhile endeavor, Bennett said.

The Journal-Constitution conducted an inves- tigation of employees at Atlanta’s Hartsfield International Airport, learning that 43 had felony records. Bennett said that publishing this type of story, which relied heavily on the use of Social Security numbers, is the very purpose of newspapers and the service they provide to the public because they assist people in making informed choices.

“We’re not intimately invasive, but rather want to responsibly use databases to weigh against felonies and determine wrongdoing and carry out our responsibility in our democratic society,” Bennett said. “If [Social Security numbers] are permanently sealed away, we’ve moved toward a totalitarian society.”

While the research for stories such as the one done by the Journal-Constitution could be done without access to Social Security numbers, it would be far more difficult if they were not available.

As Milliron noted, a person’s date of birth, address and a sex are good as identifiers, “but that type of verification is just not good enough.”

In addition, access to public records is not a right reserved exclusively for journalists. It is a public right, something that the Georgia law appears to be ignoring.

The restrictions continue anyway.

In Florida, Gov. Jeb Bush is expected to sign into law a measure very much like Georgia’s. The bill would create an exemption to the release of any public record containing an individual’s Social Security number unless it is being requested by a “commercial entity.” Representatives of newspapers — considered “commercial entities” under the bill — would have to fill out a written request before access to such records is granted.

Barbara Peterson of the Florida First Amendment Foundation describes the process as a “little hurdle that you have to step over.”

“We didn’t oppose this exemption” because it “lessens the push to close access to other records,” said Peterson, adding, it “allows for protection while still allowing for access.”

Two earlier bills making the rounds in the Florida Legislature sought to seal off all customer records for any public utility with no exemptions because of privacy concerns.

To Peterson, the alternative seemed much better.

“The writing was on the wall in regards to Social Security numbers,” she said. “Whether it’s perfect or not, I don’t know.”

So, in light of the numerous attempts at restricting access to Social Security numbers, is creating legislation that, on paper at least, provides for protection while still offering journalists some access the way to go?

Houston is not so sure. He says that corporations, insurance companies and other businesses need regulations, not journalists.

“The fact is, we’re not using them to sell products,” he said.

Marc Rotenberg, executive director of the Electronic Privacy Information Center, said companies exchanging financial information about people are the ones using Social Security numbers the most. He cites testimony given before the House Ways and Means Committee showing how credit bureaus maintain 400 million files with information on close to 90 percent of all American adults.

For those reasons and others, he says that “the privacy of Social Security numbers should be protected, because the disclosure of Social Security numbers leads to identity theft.”

But he added that “if there is information that is publicly available, I have always believed that reporters should be at the front of the line.”

One thing journalists and privacy advocates can agree on is there will be more and more legislation and other attempts at restriction to come. Armao calls trying to please both sides of the argument “a balancing act.”

“There probably are some solutions, but we haven’t seen them yet,” she said.