On 6 May 2003, Fairfax County Circuit Court Judge Leslie M. Alden dismissed the Commonwealth Attorney's effort to revoke Virginia Citizen's Defense League ("VCDL") member Mike Stollenwerk's Concealed Handgun Permit ("CHP"). For reasons not yet known, apparently the Commonwealth Attorney in Fairfax County had endorsed an effort (by a person or persons unknown) to force Mike to reveal his Social Security Number ("SSN"), or suffer revocation of his CHP lawfully granted 79 days earlier by Fairfax County Circuit Court Judge Jane Marum Roush. On his original application for the CHP, Mike wrote "Not Disclosed, If Any" in the SSN space on the CHP application (Commonwealth Form SP-285).
At a hearing on 18 April 2003, Mike represented himself (pro se) and hired his own court reporter for a "Rule to Show Cause" hearing conducted in public and witnessed by many citizens, including VCDL member Chip Fetrow, and Pete Clark. Mike argued that he had "cause" to not disclose his SSN, if any, and still keep his CHP because of:
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Lack of Grounds for Revocation:
The court had no grounds to revoke his permit under Va. Code § 18.2-308(D). See Virginia Attorney General ("AG") Opinion dated 27 July regarding the advisability of "strict construction" of this statute.
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2.
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State Privacy Law:
That even if the court found merit in the Commonwealth's clever arguments to see "implied" grounds for revocation, that because the General Assembly did not specifically require SSN disclosure in conjunction with CHP applications, that denying a CHP privilege due to a refusal to disclose an SSN would be unlawful under the Commonwealth of Virginia Government Data Collection and Dissemination Practices Act at Va. Code § 2.2-3808. See also Hinderliter v. Humpheries, 224 Va. 439; 297 S.E.2d 684 (Supreme Court of Va., 1982), and Va. AG Opinions dated 24 November 1987, and also 16 July 1987, that advise that both state and federal privacy law control government agency solicitation of SSNs.
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3.
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Federal Privacy Law:
That even if the General Assembly did require SSN disclosure of CHP applicants, that Section 7(a) of PL 93-579 [the Federal Privacy Act of 1974, 5 USC 552a note] still prohibits the revocation of the CHP because there is no specific Congressional authority for the collection of SSNs by state and local governments in conjunction with the regulation of firearms. See also Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993), Deeds vs. County of Fairfax, 151 F.3d 1028 (4th Cir. 1998), Tennessee AG Opinion 01-023 dated 14 February 2001, and Va. AG Opinions dated 24 November 1987, and also 16 July 1987.
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Judge Alden's order to dismiss is instructive because the same objective "disqualification" criteria is used under law to deny CHP applications, as to revoke a CHP once issued. Statutorily prescribed objective criteria for Virginia's CHP permit system is the heart of the meaning of "shall issue." Therefore, all applicants for Virginia CHPs (and CHP renewals) may lawfully refuse to disclose their SSN, if any, in conjunction with CHP applications, including fingerprinting forms (if used).
Still a mystery is "who was behind the attempted CHP revocation?" And "why the Fairfax County Clerk's office tried to photo copy Mike's US Passport when he first picked up his permit?" There appears to be no legal authority to copy the photo-IDs presented by CHP holders when picking up their permits from the Clerk of Courts...
so "why are they doing it?" After all, Va. Code § 2.2-3808 states:
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1.
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There shall be no personal information system whose existence is secret.
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2.
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Information shall not be collected unless the need for it has been clearly established in advance.
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3.
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Information shall be appropriate and relevant to the purpose for which it has been collected.
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4.
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Information shall not be obtained by fraudulent or unfair means.
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10.
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The Commonwealth or any agency or political subdivision thereof shall not collect personal information except as explicitly or implicitly authorized by law.
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Expect Virginia citizens to begin to also challenge SSN disclosure on Commonwealth Form SP-65 when transferring guns from or through licensed gun dealers. As noted in Tennessee AG Opinion 01-023 (14 February 2001), Section 7 of the Federal Privacy Act prohibits state governments from demanding SSN disclosure in the regulation of firearm sales. In fact, both Commonwealth Forms SP 65 and SP-248 unlawfully request disclosure of SSNs because the forms do not advise the citizen that SSN disclosure is not required, nor what uses will be made of the SSN if voluntarily disclosed (see Va. Code § 2.2-3606 and Section 7(b) of the Federal Privacy Act).
As an arcane, but technical point, it should be noted that Americans are not required to obtain assignment of an SSN from the Social Security Administration ("SSA") in order to live, work, or carry a gun in the United States. The Social Security Act only requires assignment of an SSN in order to qualify for, or draw, public assistance benefits. Admittedly, the Internal Revenue Service ("IRS") has issued regulations in the Internal Revenue Code requiring Americans to obtain assignment of an SSN if they are required to pay federal income taxes. However, the Internal Revenue Code also requires employers to still withhold income taxes of employees who have not disclosed their SSN, if any. This obvious weakness of the IRS's position on SSNs likely stems from it's tepid Congressional authority to "use" the SSN as a Tax Payer Identification Number ("TIN"). The Congress only speaks definitively on SSN assignment per se in the Social Security Act.
Notably, the federal handgun transfer screening form, mandated by the Brady Act, explicitly warns that SSN disclosure is OPTIONAL in bold letters. The same Federal Privacy Act that controls SSN collection on the federal form also covers state and local forms. So the next time you are asked to disclose your SSN on a CHP application form, or as part of any state or local scheme of firearm regulation, just write "Not Disclosed, If Any (per 5 USC 552a note)."
US citizens have the right to expect our government to follow the law. Arguably, it is our civic duty to demand that government follow the law. After all, as the late US Supreme Court Justice Louis D. Brandeis warned us: "Crime is contagious. If the government becomes a law breaker, it breeds contempt for the law."
REFERENCES:
1. Section 7 of the Federal Privacy Act (5 USC 552a note) states, in it's entirety:
Sec. 7 (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 provisions of paragraph (1) of this subsection shall not apply with respect to--
(A) any disclosure which is required by Federal statute, or
(B) any 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.
*****Author's NOTE: A Commonwealth agency requesting SSN disclosure pursuant to a specific state statute must still adhere to Section 7 of the Federal Privacy Act (see Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993) and Deeds vs. County of Fairfax, 151 F.3d 1028 (4th Cir. 1998)). If there is not a federal statute also requiring SSN disclosure, if any, then the Commonwealth agency may not (under Section 7(a) of the Federal Privacy Act) "... 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." So there may be cases where a Commonwealth agency may not be in violation of Va. Code § 2.2-3808, but still be in violation of Section 7 of the Federal Privacy Act.****
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2. Violations of Section 7 of the Federal Privacy Act (5 USC 552a note) could be construed as felonious under both the Social Security Act (42 USC 408) and the Civil Rights Act (18 USC 241):
42 USC 408
Penalties
(a) In general
Whoever -
(8) 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.
18 USC 241
Conspiracy against rights
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured -
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
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3. The Commonwealth of Virginia Government Data Collections Act also prohibits the denial of rights, benefits and privileges to persons who refuse to disclose their SSN, if any. Va. Code § 2.2-3808 states in it's entirety:
Disclosure of social security number.
It shall be unlawful for any agency to require an individual to disclose or furnish his social security account number not previously disclosed or furnished, for any purpose in connection with any activity, or to refuse any service, privilege or right to an individual wholly or partly because the individual does not disclose or furnish such number, unless the disclosure or furnishing of such number is specifically required by federal or state law.
(1976, c. 597, § 2.1-385; 2001, c. 844.)
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4. SSN Solicitation Warnings: The Commonwealth of Virginia Government Data Collections Act also requires state and local agencies to warn persons if SSN disclosure is required (similar to Section 7(b) of the Federal Privacy Act (above)):
Va. Code § 2.2-3806. Rights of data subjects. A. Any agency maintaining personal information shall:
1. Inform an individual who is asked to supply personal information about himself whether he is legally required, or may refuse, to supply the information requested, and also of any specific consequences that are known to the agency of providing or not providing the information.
2. Give notice to a data subject of the possible dissemination of part or all of this information to another agency, nongovernmental organization or system not having regular access authority, and indicate the use for which it is intended, and the specific consequences for the individual, which are known to the agency, of providing or not providing the information. However documented permission for dissemination in the hands of the other agency or organization shall satisfy the requirement of this subdivision. The notice may be given on applications or other data collection forms prepared by data subjects."
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5. Tennessee AG Opinion 01-023 dated 14 February 2001 ("Ability of the Tennessee Bureau of Investigation to Require Firearm Purchaser to Supply His/Her
Social Security Number"):
QUESTION
Can the Tennessee Bureau of Investigation pursuant to Tenn. Code Ann. § 39-17-1316 and federal law require a person who is purchasing a firearm to provide his/her social security number in order to purchase the firearm?
OPINION
No. While the Tennessee Bureau of Investigation can request an individual to provide his/her social security number in an application for approval of a firearm purchase under certain conditions, the Bureau may not deny approval of a firearm purchase solely upon the individual's refusal to supply a social security number.
See
http://www.tennesseefirearms.com/law_regs/agopinions/op01-023.pdf
for full opinion with analysis.
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