Georgia State University Law Review
Volume 25
Issue 2 Winter 2008
Article 1
2008
Illegal Immigration, Social Security Numbers, and
the Federal Privacy Act: A Suggested Avenue of
Litigation
Katharine Madison Burnett
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Burnett: Illegal Immigration, Social Security Numbers, and the Federal Pri
IMMIGRATION, SOCIAL
SOCIAL SECURITY
SECURITY
ILLEGAL IMMIGRATION,
NUMBERS, AND
AND THE FEDERAL
FEDERAL PRIVACY
PRIVACY ACT:
NUMBERS,
A SUGGESTED
SUGGESTED AVENUE
AVENUE OF LITIGATION
INTRODUCTION
INTRODUCTION
In
In the summer
summer of 2007,
2007, Gwinnett
Gwinnett County, Georgia, passed
passed an
ordinance that included
included the section, "Employment
"Employment of Unauthorized
Unauthorized
ordinance
Prohibited.,,1 It stated:
Aliens Prohibited."'
The County shall not enter
enter into a contract
contract for the physical
performance
services within the state of Georgia
Georgia unless the
performance of services
contractor shall provide
provide evidence
evidence on County-provided
County-provided forms that
contractor
12-month
subcontractors have within the previous 12-month
it and its subcontractors
of
numbers
security
social
of
the
a
verification
of
conducted verification
period conducted
employees who will perform
all employees
perform work on the County contract
contract to
2
2
ensure
ensure that no unauthorized aliens will be employed.
Social Security
Security numbers (SSN),
(SSN), though
though created
created for the purposes
purposes of
of
administering Social
Social Security
Security benefits, now essentially
essentially serve as a
administering
national
for
national identification
identification number.33 In the private arena they are used for
tracking financial information
information (including credit reports), identifying
identifying4
tracking
records. 4
medical
on
indicated
commonly
are
and
students,
university
commonly indicated on medical records.
university
Publicly, they are used for tax purposes, employment verification,
verification,
55
Komuves
and for law enforcement
enforcement purposes, among others. Flavio Komuves
(June
1. Gwinnett County, Ga., Ordinance
I.
Ordinance to Revise the Gwinnett
Gwinnett County Purchasing
Purchasing Ordinance
Ordinance (June
26,2007) (4th Revision),
Revision), at 6(1)(D)
[hereinafter Gwinnett County Ordinance 1]. The
6(1)(D) (on file with author) [hereinafter
is available at
ordinance has been
been modified
modified and renewed (5th Revision) and
http://www.gwinnettcounty.comldepartmentslfinancialserviceslpdWurchasing_Ordinance5_2008.pdf.
http://www.gwinnettcounty.com/departments/financialservices/pdfPurchasingrdinance5_2008.pdf.
of
direct submission
submission of
H1]The new version no longer requires direct
[hereinafter Gwinnett County Ordinance
[hereinafter
Ordinance II]
13security numbers, instead requiring the bidder to utilize the system outlined in O.C.G.A. §§ 13social security
11I.B.3.
infra Parts 1.A.2
I.A.2 and III.B.3.
also discussion infra
10-90 to -91 (Supp. 2008). See also
10-90
2. Id.
2.
Id.
to
Decisions to
Number: An Overview of Legislation
Got Your Number:
3. Flavio L. Komuves, We've Got
Legislation and Decisions
&
J. COMPUTER
COMPUTER &
J. MARSHALL
MARSHALL J.
Identifiers, 16 J.
PersonalIdentifiers,
Control
Social Security Numbers
Numbers as Personal
the Use
Use of Social
Control the
529,531-32
(1998).
INFO. L. 529,
531-32 (1998).
supranote 3, at 536-40.
536-40.
4. Komuves, supra
File: Tax
Tax Compliance
Compliance
3, at 540-49; Jacqueline
5. Komuves, supra
supra note 3,
Jacqueline Lainez, To File
File or Not to File:
Workers, 3 AM. U. Bus. L. BRIEF 23,23
UndocumentedImmigrant
Among
Among Undocumented
Immigrant Workers,
23, 23 (2007).
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503
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Georgia State University Law Review, Vol. 25 [2008], Iss. 2, Art. 1
504
GEORGIA STATE UNIVERSITY
UNIVERSITY LAW REVIEW
(Vol.
[Vol. 25:2
"ironic...
points out that it is "ironic
... that the one area in which a person6can
itself",
Security itself.,,6
Social Security
is Social
benefits is
receive benefits
but receive
refuse the number[] but
As the use of the Internet has increased, so have concerns about data
As
privacy and the increasing use ofSSNs.
of SSNs.77 However, SSNs continue to be
widely used; recent changes in illegal immigration law, including
including the
Gwinnett County Ordinance, reflect this trend.88
Part II of this Note briefly reviews examples
examples of recent legislation in
the area of illegal immigration, with a particular focus on Georgia,
II
and why such legislation's use of SSNs is of concern. 99 Part II
discusses the new proposed amendments
amendments to Department of Homeland
Homeland
Security (DHS) employment
verification
procedures,
a
resulting
employment
lawsuit, and possible challenges under the Federal Privacy Act.l°
Act. 10 Part
III examines
examines various state and local legislation
legislation regarding employment
eligibility
verification
with a focus on Georgia and possible
eligibility
challenges
under
constitutional
law and under the Federal
Federal Privacy
Privacy
challenges
Act. I1"
I
RECENT LEGISLATION
WHY WE SHOULD
SHOULD BE WORRIED
I.I. RECENT
LEGISLATION AND
AND WHY
A.
ImmigrationLegislation
Legislation at Federal,
State, and
and Local
A. Snapshot
Snapshot of Immigration
Federal, State,
Levels
Illegal
Illegal immigration
immigration and immigration
immigration policy are
are near-constant
near-constant
12
topics of discussion in the news today.
The
following
sections
today.12
6.
6. Komuves,
Komuves, supra
supra note
note 3,3, at 549.
7. See generally
generally Judith
Judith Beth
Beth Prowda,
Prowda, Report: AA Lawyer's Ramble Down the Information
Information
Superhighway:
Security ofData,
(1995).
Superhighway: Privacy
Privacy and Security
Data. 64 FORDHAM
FORDHAM L. REv.
REv. 738
738 (1995).
8. See infra Part
Part I; Gwinnett
Gwinnett County
County Ordinance I && II, supra
supra note
note 1.I.
9. See infra Part
Part I.I.
10. See infra Part
Part II.
11.
lL
II. See infra Part
Part m.
12.
12. See
See Valerie
Valerie Barney,
Barney, Katharine
Katharine Field
Field & Nichole
Nichole Hair,
Hair, Peach
Peach Sheet,
Sheet, Professions
Professions andBusiness, 23
23
GA.
GA. ST.
ST. U.
U. L. REv.
REv. 247,
247, 249
249 (2006) (describing illegal
illegal immigration
immigration as "one
"one of
of the
the most
most controversial
controversial
issues
issues inin the
the United
United States
States today").
today"). For
For example, from
from October
October 10th toto 17th, 2007,
2007, the
the New
New York
York Times
Times
featured
featured eight
eight articles
articles on
on the
the topic,
topic, describing
describing aa variety
variety of
of new
new federal,
federal, state
state and
and local
local immigration
immigration
legislation
C. Archibold,
legislation and
and associated
associated issues.
issues. Randal
Randal C.
Archibold, State Strikes Balance on Immigration,
Immigration, N.Y.
N.Y.
TIMES,
2007, at
2007, at
TIMES, Oct.
Oct. 14,
14,2007,
at A27;
A27; Editorial,
Editorial, A Crackdown
Crackdown on Hold,
Hold, N.Y.
N.Y. TIMES,
TiMEs, Oct.
Oct. 12,
12,2007,
at A26;
A26;
Steven
Steven Greenhouse,
Greenhouse, Immigrant
Immigrant Crackdown
Crackdown Upends a Slaughterhouse's
Siaughterhouse's Work
Work Force,
Force, N.Y.
N.Y. TIMES,
TIMES, Oct.
Oct.
12,
at Al;
Danny Hakim,
12, 2007,
2007, at
A I; Danny
Hakim, D.M V. Chief is Pressed
Pressed to Defend
Defend Plan
Plan to Give Licenses to Illegal
llIegal
Immigrants,
16, 2007,
Immigrants, N.Y.
N.Y. TIMES,
TIMES, Oct.
Oct. 16,
2007, atat B1;
BI; Jonathan
Jonathan Miller,
Miller, AA Mayor with
with a Tough Stance on
Immigration
16, 2007, at
Immigration is
is on
on Both
Both Sides
Sides Now,
Now, N.Y.
N.Y. TIMES,
TIMES, Oct.
Oct. 16,2007,
at B6;
B6; Julia
Julia Preston,
Preston, Judge
Judge Suspends Key
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Burnett: Illegal Immigration, Social Security Numbers, and the Federal Pri
20081
2008)
IMMIGRATION,
NUMBERS, AND
AND PRIVACY
IMMIGRATION, SS NUMBERS,
PRIVACY
505
explore three current
current examples of legislation that use SSNs as an
enforcement tool in illegal immigration: one federal, one by the state
enforcement
county.'133
of Georgia, and one by aa Georgia
Georgia county.
1. Federal
FederalLegislation
Legislation
1.
At the federal level, the DHS recently announced
announced increased
enforcement
of
illegal
immigration
laws,
including
more workplace
enforcement
immigration
workplace
employers who hire
raids and harsher criminal and civil penalties for employers
illegal immigrants. 1144 This new policy came to national attention with
12, 2008 raid on the Agriprocessors
Agriprocessors meat packing
the May 12,
packing plant in
Postville, Iowa.1
Iowa. IS5 Over 300 workers were arrested.1
arrested. 166 The
controversial processes
processes resulted in many workers pleading to jail time
and deportation after being charged with social security
security fraud for
for
17
numbers.
false
numbers. 17
using
The new DHS regulations also included increased
increased penalties
penalties for
"no-match" letters sent by the Social Security
employers who ignore "no-match"
Security
Bush Effort in Immigration; N.Y. TIMES, Oct. 11,2007,
I1, 2007, at Al
Al [hereinafter Preston I];
1]; Julia Preston, No
No
Need for
TIMES, Oct. 14,2007,
14, 2007, at 43 [hereinafter
II];
for a Warrant, You're an Immigrant, N.Y. TIMES,
[hereinafter Preston II];
Two Hires a Mistake, Mayor Says, N.Y. TIMES,
TIMES, Oct. 14,2007, at A40.
13. See infra notes 20, 24, 28.
14. Julia
Julia Preston, US.
u.s. Set for a Crackdown on Illegal
Illegal Hiring, N.Y. TIMES,
TIMES, Aug. 8, 2007, at AI
Al
[hereinafter Preston
Ill]. Concerns have
Preston III].
have been raised about the use of these raids to bring sanctions
against
& Robert F. Lourghran, Fear the ICE Man:
against employers.
employers. See Kevin
Kevin R. Lashus, Magali S. Candler, &
Lessons from the Swift
Swift Raids to Warm You Up-The
Employer
U~The New Government Perspective on Employer
Sanctions, 32 NOVA
NOVA L. REV.
391, 391-92 (2008).
REv. 391,
(2008). Some of these workplace
workplace raids have resulted in the
detention
U.S. citizens. See Emily Bazar, Citizens Sue After Being Detained in Workplace: An
detention of u.s.
Inconvenience or a Violation ofRights?,
25, 2008, at 1IA.
Rights?, USA
USA TODAY, June 2S,
15. Adam
Raid, THE GAZElTE
GAZETTE (Cedar Rapids,
IS.
Adam Belz, Hundreds of Detainees Await Fate After
After Raid,
Rapids, IA),
IA),
May
13, 2008,
May 13,
200S, at IA; Press Release,
Release, U.S. Attorney's Office, N. D. Iowa, ICE and Department
Department of Justice
Justice
Joint Enforcement Action Initiated at Iowa
Meatpacking Plant (May 12,
12, 200S),
2008), available at
Iowa Meatpacking
http://www.usdoj.gov/usao/ian/press/May.
08/5 12 08_Agriprocessors.html.
http://www.usdoj.gov/usao/ian/press/MaLOS/S_I2_0S_Agriprocessors.html.
US., LINCOLN J. STAR (Lincoln, NE),
14, 2008,
16. Immigration Raid in Iowa Largest Ever in U.S.,
NE), May 14,
200S,
at A
11; Henry
US., CHI. TRIB.,
All;
Henry C. Jackson, Iowa Raid Called Largest in U.s.,
TRIB., May 14, 2008,
200S, at C6.
17. See The Arrest, Prosecution and Conviction of 297 Undocumented Workers in Potsville,
Potsville, Iowa,
from
Refugees,
from May 12 to 22, 2008: Hearing Before the H.
H. Subcomm. on Immigration, Citizenship, Refugees,
Cong. (200S)
(2008) (statement
(statement of Dr. Erik Carnayd-Freixas,
Camayd-Freixas,
Border Security and International Law, 1I 10th
10th Congo
Fed.
Interpreter),
at
http'//judiciary.house.gov/hearings/pdf/CamaydCertified
Interpreter),
available
http://judiciary.house.gov/hearings/pdf/CamaydFreixas08O724.pdf;
THE GAZETTE
GAZETTE (Cedar
FreixasOS0724.pdf; Trish Mehaffey, 234 Detainees Sentenced in Potsville Raid, THE
(Cedar
Rapids,
IA),
2008,
IA),
May
23,
200S,
at
IA,
available
at
http://www.gazetteonline.com/apps/pbcs.dll/article?AID=/20080522/NEWS/503716059/1006/news;
http://www.gazetteonIine.com/apps/pbcs.dIVartic1e?AID=/200S0S221NEWS/S037I60S9/IOO6/news;
2008, at Al
Julia Preston, 270 Immigrants Sent to Prison in Federal Push, N.Y. TIMES,
TIMES, May
May 24, 200S,
Al
[hereinafter
TIMES, July II,
11,
[hereinafter Preston IV];
IV); Julia Preston, An Interpreter Speaking Up for Migrants, N.Y. TIMES,
2008,
Al [hereinafter
200S, at Al
[hereinafter Preston V].
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Georgia State University Law Review, Vol. 25 [2008], Iss. 2, Art. 1
506
UNIVERSITY LAW
GEORGIA STATE UNIVERSITY
LAW REVIEW
[Vol. 25:2
25:2
(Vol.
18
Administration (SSA).18
(SSA). No-match
No-match letters
letters are
are sent
sent by
by the
the SSA
SSA to
to
Administration
inform employers
employers that
that worker
worker names
names and
and SSNs
SSNs submitted
submitted by
by the
the
inform
19 Subsequently,
employer
do
not
match
agency
records.
October
on
employer do not match agency records.
Subsequently, on October
11, 2007, the
the Northern
Northern District
District of
of California
California issued
issued aa preliminary
preliminary
11,
injunction barring
barring the
the use
use of
of SSA
SSA no-match
no-match letters
letters as
as an
an exclusive
exclusive
injunction
2o
2
0
basis
for employer
employer notice
notice requirements.
requirements. DHS,
continues
basis for
DHS, however,
however, continues
to
encourage
use
of
its
Basic
Pilot/Employment Eligibility
Eligibility
to encourage use of its Basic PilotlEmployment
Verification
program,
which
uses
SSNs
to
allow
employers
to match
match
Verification program, which uses SSNs to allow employers to
21
2
1
employee information
information against
against an
an online
database. DHS
DHS Secretary
Secretary
employee
online database.
Michael Chertoff
Chertoff defended
defended the
the system
system in
in aa June
press
Michael
June 9, 2008 press
22
conference. 22
2. State Legislation
Legis!ation23
At
the state
state level,
level, the
Georgia General
General Assembly
At the
the Georgia
Assembly recently
recently passed
passed
Senate
Bill
529,
making
the first
to enact
such aa large
large
Senate
making it
it the
first state
state to
enact such
24
24
collection
of anti-immigration
anti-immigration measures.
The Act
such
collection of
measures.
The
Act includes
includes such
18. Preston II,
Al.
UI, supra note 14,
14, at AI.
19. Preston III,
Ill, supra note 14.
14.
20.
1002, 1006
1006 (N.D. Cal. 2007); Safe-Harbor
Safe-Harbor
20. Am.
Am. Fed'n of
of Labor
Labor v. Chertoff, 552 F. Supp. 2d 999, 1002,
Procedures
14, 2006) (to be
Procedures for Employers
Employers Who Receive
Receive aa No-Match
No-Match Letter, 71 Fed. Reg. 34281 (June
(June 14,2006)
be
codified at 8 C.F.R. pt. 274a) [hereinafter
Safe-Harbor Procedures].
Procedures].
codified
[hereinafter Safe-Harbor
21.
21. See U.S.
U.S. Dep't of
of Homeland Security Press Office,
Office, Fact
Fact Sheet: E-Verify (Aug. 9, 2007),
available at http://www.nilc.org/immsemplymnt/ircaempverif/E-Verify
Fact Sheet_2007-08-09.pdf.
available
http://www.nilc.orglimmsemplymntlircaempveriflE-Verify]act_Sheet_
2007 -08-09 .pdf.
The Basic
been re-branded
re-branded "E-Verify"
"E-Verify" and is
Basic Pilot/Employment
Pilot/Employment Eligibility
Eligibility Verification
Verification program has been
described
described as "a
"a free and simple
simple to use Web-based system that electronically
electronically verifies
verifies the employment
employment
eligibility of newly
employees." Id.
newly hired employees."
Id. According
According to the press
press release,
release, it is "being
"being re-branded
re-branded to
eligibility
highlight key
highlight
key enhancements
enhancements in
in the program, including
including a new
new photo screening
screening tool that helps
helps employers
Id.
to detect
detect forged or faked immigration
immigration documents."
documents." Id.
22. Press Release, U.S. Dep't of Homeland
Homeland Security,
Security, Remarks
Remarks by
by Homeland
Homeland Security Secretary
Secretary
of Commerce
Commerce Secretary
Secretary Gutierrez
Gutierrez at the State
State of Immigration
Immigration Address
Address
Michael Chertoff
Chertoff and
and Department of
(June 9, 2008),
1213101513448.shtm.
2008), available
available at http://www.dhs.gov/xnews/releases/pr_
http://www.dhs.gov/xnewslreleaseslpr_1213101513448.shtm.
there has been a huge amount
amount of state
state immigration
immigration
23. Although
Although this Note focuses on Georgia, there
legislation.
See Kris
Kris W.
W. Kobach,
Kobach, Reinforcing
Reinforcing the
the Rule of
of Law:
Law: What States Can and
and Should Do to
legislation. See
Reduce
1,562 immigration
Reduce Illegal
Illegal Immigration,
Immigration, 22 GEO.
GEO. IMMIGR.
IMMIGR. L.J. 459, 459 (2008)
(2008) (reporting
(reporting 1,562
immigration bills
bills
introduced
introduced in
in 2007
2007 state
state legislative
legislative sessions);
sessions); NAT'L CONFERENCE
CONFERENCE OF STATE
STATE LEGISLATURES
LEGISLATURES
IMMIGRANT
IMMIGRANT POLICY
POLICY PROJECT,
PROJECT, STATE
STATE LAWS
LA WS RELATED
RELATED TO IMMIGRANTS
IMMIGRANTS AND
AND IMMIGRATION,
IMMIGRATION, JAN.
JAN. I-JUNE
30 1I (2008),
(2008), available
available at
at http://www.ncsl.org/print/immig/immigreportjuly2008.pdf
http://www.ncsl.orglprintlimmiglimmigreportjuly2008.pdf (reporting
(reporting 1,267
1,267
bills
2008). State
"law enforcement,
bills introduced
introduced in
in the
the first
first half
half of
of 2008).
State laws
laws commonly
commonly address
address issues
issues of
of "law
enforcement,
employment,
Immigration Outside the Law,
Law,
employment, housing,
housing, and
and identification
identification documents."
documents." Hiroshi Motomura,
Motomura, Immigration
108
108 COLUM.
COLUM. L. REv.
REv. 2037,2055
2037, 2055 (2008).
24. Georgia
Security and
Immigration Compliance
24.
Georgia Security
and Immigration
Compliance Act,
Act, 2006
2006 Ga.
Ga. Laws
Laws 105
105 (codified
(codified as
as amended
amended at
O.C.G.A.
§§ 13-10-90
13-10-90 to
to -91,
-91, 16-5-46,
16-5-46, 35-2-14, 42-4-14,
42-4-14, 43-20a-I
43-20a-1 to -4, 50-36-1
50-36-1 (Supp. 2008));
2008»; see
O.C.G.A. §§
also Barney, Field &
12, at
& Hair, supra
supra note 12,
at 270.
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Burnett: Illegal Immigration, Social Security Numbers, and the Federal Pri
20081
2008J
IMMIGRATION,
IMMIGRATION, SS
SS NUMBERS,
NUMBERS, AND
AND PRIVACY
PRIVACY
507
as: regulating public employers
employers and
and contracts,
varied provisions as:
providing criminal penalties for human trafficking, authorizing local
local
law
enforcement
of
federal
immigration
laws,
regulating
immigration
law
federal
regulating
assistance services, and denying tax deductions to employers who
25 Section
unauthorized workers. 25
pay wages to unauthorized
Section 2 of Senate Bill 529
put forth new work eligibility verification requirements that apply to
Georgia's
public employers
and their contractors and
26
26
subcontractors. All of these groups are now required to verify the
subcontractors.
work eligibility
eligibility of all newly hired employees through the electronic
electronic
work
federal work authorization program, effective as of July 1,
1, 2007 for
businesses of more than 500 employees, as of July 1,
1, 2008 for
employers,
businesses of more than 100 employees, and for all public employers,
7
subcontractors on July 1,
1, 2009.2
2009.27
contractors, or subcontractors
3. Local
Local Legislation
Legislation
Following the passage
passage of SB 529, Gwinnett County, Georgia,
passed an ordinance requiring county
county contractors
contractors to verify all
employee SSNs.2
SSNs.288 The ordinance
further
authorizes the county to
ordinance
perform
perform audits to ensure contractors
contractors have collected
collected and verified
verified the
SSNs. Failure to do so may result in an order
order to terminate
terminate employees,
29
2
9
the termination
termination of the contract, or both. Additionally, over thirty
towns nationwide
nationwide have passed
passed various anti-immigration
anti-immigration laws that
penalize
employers
who
hire
illegal
immigrants
penalize
immigrants or landlords who rent
25.
Immigration Compliance
25. Georgia
Georgia Security
Security and Immigration
Compliance Act;
Act; "Georgia
"Georgia Security
Security and Immigration
Compliance
Ga. Laws 105
amended at
Compliance Act,"
Act," 2006 Ga.
105 (codified as amended
at O.C.G.A.
O.C.GA §§
§§ 13-10-90
13-10-90 to
to -91,
-91, 16-5-46,
16-5-46,
35-2-14,
42-4-14, 43-20a-1
50-36-1 (Supp.
also Barney, Field
Field &
& Hair, supra
supra note 12,
12,
35-2-14,42-4-14,
43-20a-1 to
to -4,
-4,50-36-1
(Supp. 2008));
2008»; see also
at 261-62.
261-{)2.
26.
Immigration Compliance
26. Georgia
Georgia Security
Security and Immigration
Compliance Act, 2006
2006 Ga. Laws
Laws 105,
105, at
at § 2 (codified as
as
amended
amended at
at O.C.G.A.
O.C.GA §§ 13-10-90
13-10-90 (Supp. 2008));
2008»; see
see also
also Barney,
Barney, Field
Field &
& Hair, supra
supra note 12,
12, at 26126162.
62.
27.
27. O.C.G.A.
O.C.G.A. §§ 13-10-91(b)(3)
13-1 0-9 I (b)(3) (2008).
28.
28. Gwinnett
Gwinnett County
County Ordinance
Ordinance I, supra note 1,
I, pt. 6,
6, §§ I(D).
1(0).
29.
29. Gwinnett
Gwinnett County
County Ordinance
Ordinance II &
& II,
II, supra
supra note 1.
I. The
The statutory
statutory language
language is
is somewhat
somewhat ambiguous
ambiguous
in
in regard
regard to
to who,
who, specifically,
specifically, will
will be
be affected:
affected: itit states
states at one
one point
point that
that "the
''the County
County shall
shall not
not enter
enter into
into
aa contract"
contract" unless
unless the
the employer
employer provides
provides SSNs,
SSNs, which
which implies
implies that
that this
this would
would not
not apply
apply to
to pre-existing
pre-existing
contracts).
contracts). Id
Id But
But then
then itit states
states that
that "[t]he
"[t]he Purchasing
Purchasing Division
Division shall
shall further
further be
be authorized
authorized to
to conduct
conduct
periodic
periodic inspections
inspections to
to ensure
ensure that
that no
no County
County contractor
contractor or
or subcontractor
subcontractor employs
employs unauthorized
unauthorized aliens
aliens
on
with the
the County,
County, the
the contractor
contractor and
and subcontractors
subcontractors
on County
County contracts.
contracts. By
By entering
entering into
into aa contract
contract with
agree
agree to
to cooperate
cooperate with
with any
any such
such investigation."
investigation." Id.
Id (emphasis
(emphasis added.).
added.). This
This section
section implies
implies that
that prepreexisting
existing contracts
contracts are
are also
also subject
subject to
to such
such inspections.
inspections.
Published by Reading Room, 2008
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Georgia State University Law Review, Vol. 25 [2008], Iss. 2, Art. 1
508
GEORGIA
GEORGIA STATE
STATE UNIVERSITY
UNIVERSITY LAW REVIEW
REVIEW
(Vol. 25:2
25:2
[Vol.
3o One
One of the most
most well-known
well-known of
of the
the local
local ordinances
ordinances is that
that
to them. 30
of
of Hazleton,
Hazleton, Pennsylvania,
Pennsylvania, which
which required
required tenants
tenants to apply
apply for an
occupancy permit
permit to live within31the
the town limits. The
The permit
permit itself
itself
occupancy
required
proof of legal
legal residency.
residency.31
required proof
Some of the
the above laws require
require a verification
verification process, direct or
or
Some
SSN is matched
matched against federal
indirect, in which
which an individual's
individual's SSN
indirect,
records
records through the Department
Department of Homeland
Homeland Security
Security (DHS)
(DHS) online
online
database,
database, known
known as E-Verify.
E-Verify. 32
32 Although
Although originally
originally requiring
requiring direct
direct
submission
submission of social
social security
security numbers, the Gwinnett
Gwinnett County
Ordinance was later modified to require the use of E-Verify
E-Verify as
Ordinance
33
33
outlined in the state law. Other
Other laws are more
more vague regarding
regarding the
outlined
be
will
status
immigration
which
an
individual's
process
by
process
which
individual's immigration
be verified:
"proper identification
Hazleton's
Hazleton's ordinance
ordinance required
required "proper
identification showing proof
proof
citizenship and/or residency,"
residency," which
which the district 34court found
found
of legal citizenship
inquiry.
claim
privacy
necessary
the
conduct
too vague to
necessary privacy claim inquiry. 34
SocialSecurity Numbers
B. Risks of the Use of Social
Numbers in Immigration
Immigration Law
Recent legislation
legislation has created
created concern
concern in legal,
legal, business, and labor
Recent
communities about what these restrictions mean
communities
mean and how they will be
be
35 Specifically, there has been criticism
immigration
from
enforced.35
criticism
lawyers regarding the web-based
web-based verification
verification programs
programs touted by
by
3
6
DHS. In addition, with the increased
DHS.36
increased use of SSNs in government
government
Against Illegal
30. See Ken
Ken Belson
and Jill
Jill P. Capuzzo,
Illegal Immigrants,
Immigrants, NY
NY
Capuzzo, Towns Rethink Laws Against
Belson and
supranote
also Motomura, supra
26, 2007,
Al; see also
TIMES, Sept.
Sept. 26,
TIMES,
2007, atat AI;
note 23,
23, at 2055-67
2055-{i7 (discussing
(discussing the role of
of state
state
and local laws in illegal immigration
immigration enforcement, and the
the federalism
federalism issues
issues implicit
implicit inin such
arrangements).
arrangements).
ordinance was
31.
Hazleton's ordinance
31. Hazleton's
was struck
struck down
down by
by the district court on July 26, 2007.
2007. Lozano
Lozano v. City of
496 F.
Supp. 2d
Hazleton, 496
Hazleton,
F. Supp.
2d 477,
477, 529 (M.D. Pa.
Pa. 2007).
2007).
I(D).
supra note I,
], pt 6, §§ 1(0).
(2006); Gwinnett
O.C.G.A. § 13-10-91
13-10-91 (2006);
32. E.g., O.C.G.A.
Gwinnett County Ordinance, supra
direct submission
supra note
note I1 (requiring
(requiring direct
Ordinance I, supra
Gwinnett County
County Ordinance
33. Compare
submission of social
Compare Gwinnett
Ordinance II,
H,
Gwinnett County
County Ordinance
for contracts),
contracts), with Gwinnett
in order
order to
to be eligible
security
eligible for
to county
county in
security numbers
numbers to
to -91
-91 (Supp.
(Supp.
§§ 13-10-90
13-10-90 to
and O.C.G.A.
authorization program)
program) and
use of
of federal
federal authorization
supra
note I1 (requiring
(requiring use
O.C.G.A. §§
supra note
2008) (outlining federal authorization program
program requirements).
530-31.
496 F.
F. Supp.
Supp. 2d
34. Lozano,
Lozano, 496
2d atat 530-31.
See, e.g., ABA
ABA Center for Continuing
35. See,
Continuing Legal Education,
Education, New Rule on Social Security "No''Nohttp://www.abanet.orgtcle/programs/t07ssn l.html.
availableat
at http://www.abanet.org/cleiprogramslt07ssnl.html.
Match" Letters,
Match"
Letters, available
36. Concerns include the possibility
possibility that databases contain
contain mistakes that, when matched against
See, e.g., NATIONAL
NATIONAL
legal residents.
residents. See,
for U.S.
citizens and
of employment
will result
result in
in loss
records, will
records,
loss of
employment for
U.S. citizens
and legal
A MAGIC BULLET (2007),
IMMIGRATION LAW CENTER,
IMMIGRATION
CENTER, BASIC
BASIC PILOT/E-VERIFY:
PILOTIE-VERIFY: NOT
NOT A
For more
more on
on
http://www.nilc.org/immsemplymnt/ircaempverif/e-verify-nomagicbutiet-2007-09-17.pdf. For
http://www.nilc.org/immsemplymntlircaempverifle-verify_nomagicbuUet_2007-09-17.pdf.
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20081
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IMMIGRATION, SS
SS NUMBERS,
NUMBERS, AND
AND PRIVACY
PRIVACY
IMMIGRATION,
509
databases, the risk of
of harm
hann increases
increases due to loss
loss of data
data privacy
privacy and
and
databases,
37
37
It is extremely
extremely difficult
difficult to
to repair
repair the damage
damage of
of
identity theft. It
identity
identity
identity theft, of
of which there
there were
were over
over 9.9
9.9 million cases
cases in 2003,
2003,
1998-2003, with
American identity theft victims
27.3 million American
victims from 1998-2003,
38
There
are
multiple
problems
billions
of
dollars
in
losses.
billions
dollars
multiple problems that can
arise
arise from SSN abuse, and identity
identity theft
theft is not the only one-good
faith mistakes in the
the use of SSNs
SSNs can wreak
wreak havoc on any
any person's
person's
39
credit
credit history or personal
personal records.
records. Additionally, there are concerns
concerns
identification
become
essentially
a
national
that
SSNs
have
that
identification number,
and in 1974
1974 the Senate
Senate Committee
Committee stated that the use of SSNs
SSNs as
universal identification
identification numbers
numbers is "one
"one of
of the most serious
serious
'
4°
manifestations
manifestations of privacy
privacy concerns in the nation. ,.40 There is also an
an
underlying
underlying values concern:
concern: as one author points out, "[w]e
"[w]e associate
the treatment
totalitarian regimes,"
regimes," and a
treatment of people as numbers with totalitarian
national numbering
numbering system
system enables our identities
identities to become
41
41
commodities.
incredibly difficult;
Controlling the dissemination
dissemination of SSNs is incredibly
difficult; there
is no unifying
unifying federal
federal law regarding the regulation of public records,
42
The new
or specifically of SSNs as indicated in public records.42
immigration
immigration laws described
described in the above section appear
appear to spark such
Ordinance provides that the county
concerns; the Gwinnett
Gwinnett County Ordinance
concerns;
complied with the
may audit employers to ensure that they complied
Technology, and
and the
E-Verify, see generally
Immigration, Technology,
associated with E-Verify,
the problems
problems associated
generally Micah Bump, Immigration,
IMMIGR. L.J. 391 (2008)
Verification, 22 GEO. lMMIGR.
Worksite: The Challenges
Challenges of
Wor!rsite:
of Electronic
Electronic Employment Verification,
(2008)
GOVERNMENT
scalability, accessibility
accessibility and privacy);
privacy); GoVERNMENT
(discussing concerns
concerns of accuracy, scalability,
WEAKNESSES
PUBL'N No.
NO. GAO-05-813,
GAO-05-813, iMMIGRATION
IMMIGRATION ENFORCEMENT: WEAKNESSES
ACCOUNTABILITY OFFICE, PuBL'N
ACCOUNTABILITY
(2005)
WORKslTE ENFORCEMENT EFFORTS 22-26
HINDER EMPLOYMENT VERIFICATION AND WORKSITE
22-26 (2005)
fraud," and
(indicating
"the [Basic
(indicating that ''the
[Basic Pilot]
Pilot] program cannot currently
currently help employers detect
detect identity fraud,"
citing delays in updating databases, though noting that the system is being improved).
Tort to
to Control
Control
Pricefor
for Privacy:
Using the
the Private
Facts Tort
37. See Lora M. Jennings, Paying
Paying the Price
Privacy: Using
Private Facts
Identity Theft, 43 WASHBURN
Social Security Number Dissemination
Dissemination and
and the
the Risk of Identity
Social
WASHBURN L.J. 725, 726
(2004).
Idat725n.l.
38. Id.
at 725 n.l.
supra note 3, at 534-35.
39. Komuves, supra
1183, 93rd Cong., as
as reprinted
1974
40. Komuves, supra
supra note 3, at 531-32 (quoting S.
S.Rep. No. 1183,
40.
reprinted in 1974
U.S.C.C.A.N. 6916, 6943).
V.S.C.C.A.N.
supranote 3, at 571-72.
41. Komuves, supra
Constitution,86
86
andAggregation:
Aggregation: Public
PublicRecords,
Records, Privacy,
and the Constitution,
42. See Daniel J.
J. Solove, Access and
Privacy, and
MINN. L. REV.
REv. 1137, 1172 (2002). Instead there are a wide variety of state laws, with no two states
Id.
exactly the same. Id.
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GEORGIA STATE
STATE UNIVERSITY
UNIVERSITY LAW
LAW REVIEW
REVIEW
[Vol. 25:2
25:2
[Vol.
43
However, the ordinance
verification
verification process.43
ordinance makes
makes no mention
mention of
of
the actual
actual process
process by which
which SSNs will
will be audited
audited by
by the
the county, nor
nor
44
noted
DHS
has
process.
in
this
will
be
secured
numbers
how the numbers will
secured
process. DHS has noted
that "any
be treated
treated as having
having at least a
"any system involving
involving SSNs shall be
moderate
of
moderate potential
potential impact
impact on an individual
individual regarding
regarding the loss of
'45
confidentiality.'.45 As technology
technology becomes
becomes more
more invasive,
invasive, however,
however,
confidentiality.
courts
many
In
a
tort
claim,
many courts have
traditional privacy
privacy rights diminish.
traditional
of
rejected
rejected the idea that an individual has any reasonable
reasonable expectation
expectation of
privacy in a SSN as it is known
known to so many businesses
businesses and
and disclosed
disclosed
privacy
46
46
in so many public
Therefore, the
the use of SSNs in order
order to
public records. Therefore,
enforce immigration
immigration law is of concern
concern to all United
United States
States residents,
enforce
47
whether they are
are citizens,
citizens, legal
legal or
or illegal
illegal immigrants.
immigrants. 47
regardless of whether
regardless
The Federal
Federal Privacy
Privacy Act may be one avenue
avenue to protect
protect privacy
privacy
interests in SSNs as they are increasingly
increasingly used in
in efforts
efforts to control
48
48
illegal immigration.
UNDER THE
AND POTENTIAL CHALLENGES UNDER
II. THE
THE NEW
NEW DHS POLICY
POLICY AND
FEDERAL PRIVACY
PRIVACY ACT
Federal Privacy
Privacy Act
Act
A. The Federal
1. The Statute
Statute
The Federal Privacy Act protects multiple
multiple kinds of personal
of
information and was adopted to permit individuals to learn which
which of
their personal
personal records are kept by federal agencies, as well as to allow
allow
some degree of control over the use of personal information
information by the
4
9
government. 49 It was adopted in light of "the increasing use of
of
1, pt.
pt. 6, §§ I(D).
IL supra
43. Gwinnett County Ordinance II,
supra note I,
1.
11,supra
44. Gwinnett County Ordinance II,
supra note I.
III, Chief Privacy Officer, Department of Homeland Security
Memorandum from Hugo Teufel III,
45. Memorandum
available at http//www.dhs.gov/xlibrary/assets/privacy/privacypolicyguide2007(June 4, 2007), available
http://www.dhs.gov/xlibrary/assets/privacy/privacy-policyguide_20072.pdf.
supra note 37, at 726-27 (proposing that
also Jennings,
Jennings, supra
supra note 3,
3, at 572-73; see also
46. Komuves, supra
SSNs).
the tort of public disclosure
disclosure of private facts should be redefined to include the dissemination
dissemination of SSNs).
3.
supra note 3.
47. See generally
generally Komuves, supra
(1974).
93-579, 88 Stat 1896 (1974).
48. Federal Privacy Act, Pub. L. No. 93-579,
Id. § 2(b)(1H:2).
2(b)(l)-(2).
49. Id
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NUMBERS, AND
AND PRIVACY
IMMIGRATION, SS NUMBERS,
Sl1
computers and sophisticated
sophisticated information technology,
technology, [which] while
operations of the Government, has greatly
greatly
essential to the efficient operations
magnified
the
harm
to
individual
privacy
that
can
occur
from
any
magnified
privacy
any
maintenance, use, or dissemination
collection, maintenance,
dissemination of personal
information., 50 Section 7 of the Federal Privacy Act of 1974 states,
information.,,50
"[i]t shall be unlawful for any Federal,
Federal, State or local government
government
"[i]t
individual any right, benefit, or privilege
agency to deny to any individual
provided by law because
because of such individual's refusal to disclose his
his
social security account number."
51 This law provides
provides the primary
number." 51
52
SSNs.
of
use
government
on
source of restrictions on government use of SSNs. 52
The Senate Committee,
Committee, in its report endorsing the Federal Privacy
Privacy
Act, "stated that the extensive use of SSNs as universal identifiers
identifiers is
'one
of
the
most
serious
manifestations
'one of the most serious manifestations of
of privacy
privacy concerns in the
53
nation.'
nation. ",53 Section 7 of the Privacy Act is unique in that it applies to
state and local agencies
agencies as well as federal agencies, ostensibly
ostensibly
providing
specifically in regard to
providing a greater degree of protection
protection specifically
54 However, the Act does not apply to "any
SSNs.54
SSNS.
"any disclosure which is
55
required
statute." This exception
required by Federal statute.,,55
exception has proved very broad:
"when
one
considers
how
many
exceptions
Congress has granted for
"when one considers how many exceptions Congress
for
SSN collection
collection and use, the exceptions clearly
clearly swallow the general
56
rule.",
rule.,,56
However, the exceptions previously
previously made by Congress
Congress are
worth examining in light of illegal immigration policy.
2. The Exceptions
FederalPrivacy
2.
Exceptions to the Federal
Privacy Act
Act
The exceptions
exceptions by federal statute, stating that SSNs may be
required, have included
applications, and
included tax forms, public assistance applications,
motor vehicle registration.57
employment eligibility
57 However, employment
eligibility
50.
51.
51.
52.
52.
53.
6943).
6943).
54.
54.
55.
56.
56.
57.
57.
Id.
Id. § 2(aX2).
Id.
Id. § 7(a)(1).
7(a)(I).
supranote 3, at 549.
Komuves, supra
Id.
S.Rep. No. 1I83,
1183, 93rd Cong., as reprinted
Id. at 532 (quoting S.
reprinted in 1974 U.S.C.C.A.N. 6916,
6916,
Federal Privacy
Pub.L.No.
No.93-579,
Privacy Act,
Act, Pub.L.
93-579, § 7(a)(I),
7(a)(I), 88
88 Stat. 1896 (1974).
(1974).
Id.
Id. § 7(a)(2)(A).
7(a)(2XA).
Komuves,
supra note 3, at 550.
Komuves, supra
42
42 U.S.C. § 405(cX2XCXi)
405(cX2XCXi) (2000).
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Georgia State University Law Review, Vol. 25 [2008], Iss. 2, Art. 1
512
UNIVERSITY LAW REVIEW
GEORGIA STATE UNIVERSITY
[VoL 25:2
[VoL
58
DHS Form 1-9 states that
verification is not excluded by statute. 58
DRS
"[e]mployers CANNOT
CANNOT specify which document(s) they will accept
"[e]mployers
employee" for verification. A social security card is only one
from an employee"
59 Additionally, Form 1-9 specifically
of the acceptable documents. 59
specifically
includes a Privacy Act notice, specifying that the 1986 Immigration
Immigration
Reform and Control Act (IRCA)
(IRCA) is the authority for collecting
collecting the
information, and that "[t]his
"[t]his information
information will be used by employers
as a record of their basis for determining eligibility of an employee to
States." 60
United States.,,60
work in the United
B. DHS's Proposed
ProposedAmendments to Social
Social Security Agency NoB.
Match
Letters
Match Letters
In recent years, fears of terrorist attacks have caused concerns that
illegal immigration
immigration could result in terrorists gaining
gaining a foothold in the
United States and that the use of false SSNs or increased
increased use of
of
Individual
Taxpayer
Identification
Numbers
could
help
enable
this
Individual
Identification
process.6611 On June 14, 2006, DRS
DHS proposed
proposed a new regulation
62
regarding
of
regulation of
regarding employer-supplied
employer-supplied SSNs. It amended the regulation
IRCA-the
IRCA-the federal statute penalizing employers for knowingly hiring
63 Under IRCA, to verify an employee's work
illegal aliens. 63
eligibility
employee's
the employer completes
completes Form
Form 1-9 based
based on documents
documents provided
provided by
64
the employee. The documents
documents will be retained by
by the employer
employer
"and
made
available
for
inspection
by
officials
U.S.
"and made available for inspection by officials of the U.S.
Immigration
and
Customs
Enforcement,
Department
of
Labor
and
Immigration
Customs
Department
Office
Unfair
Office of Special Counsel
Counsel for Immigration Related Unfair
65
Employment
Employment Practices.'
Practices. ,,65 If the employee provides
provides a social
social security
58. Employment
Employment Eligibility
Eligibility Verification
Verification Form 1-9,
1-9, available
available at http://www.uscis.gov/files/form/ihttp://www.uscis.gov/fileslformli9.pdf
[hereinafter Form 1-9].
9.pdf[hereinafter
1-9].
59. Id.
1, 33 (emphasis
[d. at I,
(emphasis in original).
original).
60. Id.
[d. at 1. Other acceptable
acceptable documents
documents include
include a Certification
Certification of
of Birth Abroad
Abroad issued
issued by the
the
Department
certificate, a Native
Department of
of State,
State, a U.S. birth certificate,
Native American
American tribal
tribal document, a U.S. Citizen
Citizen ID card,
card,
an
an ID Card for use of Resident
Resident Citizen
Citizen in the United
United States,
States, or an unexpired
unexpired employment
employment authorization
authorization
document
[d. at 3.
3.
document issued
issued by DHS. Id.
61.
3.
61. Komuves, supra
supra note
note 3.
Safe-Harbor Procedures,
62. Safe-Harbor
Procedures, supra
supra note 20.
63. Control of Employment
Employment of
ofAliens,
Aliens, 8 C.F.R. § 274a.1
274a.1 (2008).
(2008).
64. Form
supra note 58,
58, at 1.
1.
Form 1-9,
1-9, supra
65. Id.
[d.
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IMMIGRATION,
NUMBERS, AND
AND PRIVACY
PRIVACY
513
SSA cannot match the SSN on the form
card for the Form 1-9 and the SSA
earnings that were earmarked
earmarked for
with its records, then the worker's earnings
social security benefits are posted to the SSA's Earnings
Earnings Suspense
File and a no-match
letter
is
sent
to
the
employer
employer alerting him of the
no-match
66
discrepancy.66
discrepancy.
statement
Traditionally, a no-match
no-match letter by the SSA included
included a statement
indicating that receipt of the letter was not an indication of the
indicating
employee's immigration
immigration status. 67
employee's
67 However, under the new
regulations proposed by DHS, a DHS insert would be included with
the SSA no-match letter indicating that its receipt
receipt could serve
serve as
notice that the employer has hired unauthorized
unauthorized workers, and if the
discrepancy
is
not
resolved
within
ninety
days, the employer
discrepancy
employer could be
6
8
subjected to criminal and civil liability.
liability.68 These contentious new
subjected
criminal charges against employers who ignore noefforts to bring criminal
match letters
letters have created
created dissent among farmers and those in other
other
69
However, on September
September 1,
1, 2007, Judge Maxine Chesney
Chesney
industries. 69
of the Northern District of California issued a temporary restraining
order preventing the new DHS insert from being
being mailed prior to the
Federationof Labor
court's consideration
consideration of the claims in American Federation
7°
v. ChertojJ.70
Chertoff.
1. American
American Federation
1.
Federation of Labor v. Chertoff
Plaintiffs, which included multiple unions and business groups,
sued DHS and its head, Michael Chertoff, and requested
requested a
71
7
10, 2007, Judge Charles R.
preliminary injunction. ' On October 10,
plaintiff's
Breyer of the Northern District of California
California granted
granted the plaintiffs
motion for a preliminary
preliminary injunction,
thus
delaying
the
DHS
injunction,
DRS from
66.
66. 20 C.F.R. § 422.120(a) (2008); Am. Fed'n of Labor v. Chertoff, 552 F. Supp. 2d 999, 1002
1002
(N.D. Cal.
Cal. 2007).
2007).
67. Chertoff,
Chertoff, 552 F.
F. Supp. 2d
2d at 1002.
68. Id
[d. at
at 1003-04.
69.
Crackdown on Illegal
Illegal Workers Unfair,
Unfair, N.Y. TIMES,
11,
69. Julia Preston, Farmers
Farmers Call Crackdown
TiMES, August
August II,
2007, at Ai
AIO0 [hereinafter Preston
Preston VI].
Illegal Workers
Workers are
are Delayed,
TIMES, sept.
Sept. 1,2007,
1, 2007, at
70. See Julia Preston, Rules on Hiring
Hiring Illegal
Delayed, N.Y. TiMES,
A10
A
I 0 [hereinafter Preston
Preston VII].
Chertoff,552 F. Supp. 2d at
71. Chertoff,
at 1001-02.
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514
GEORGIA
GEORGIA STATE
STATE UNIVERSITY
UNIVERSITY LAW
LAW REVIEW
REVIEW
[Vol.
[Vol. 25:2
25:2
72
Included
implementing
implementing its new
new no-match
no-match process.
process.72
Included in plaintiffs'
plaintiffs'
arguments,
arguments, accepted
accepted by
by the court and
and resulting in a preliminary
preliminary
injunction,
injunction, were
were arguments
arguments regarding
regarding the risks of using
using the
the no-match
no-match
73
enforcement of
SSN program
program in stepped-up
stepped-up enforcement
of illegal immigration.73
The
The government
government stated
stated during
during oral arguments
arguments that
that if the preliminary
the
SSA
would
not
granted,
injunction
injunction was
would mail "approximately
"approximately
140,000 no-match
140,000
no-match letters
letters to employers,
employers, pertaining
pertaining to approximately
approximately 8
74 Under the modified
employees.,,74
modified DHS
DHS policy
policy as articulated
articulated
million employees.
in a letter to employers,
employers, employers
employers would not be liable under the
Immigration
Immigration and Nationality
Nationality Act's
Act's anti-discrimination
anti-discrimination provision
provision if
could
situation
a
no-match
employees
after
terminated
they terminated employees after no-match situation could not be
days. 75 The court
resolved
court ruled that "[a]s
"[a]s demonstrated
demonstrated
resolved within
within ninety
ninety days.75
by plaintiffs,
plaintiffs, the government's
government's proposal ...
... will, under the mandated
mandated
lawfully
employment to lawfully
time line, result in the termination of employment
on
letters
are
based
no-match
...
the
because
...
employed workers
on
workers ... because ...
76
SSA records
records that include numerous
numerous errors.,,76
errors." Therefore, the mailing
of these letters "would
"would result in irreparable
irreparable harm to innocent
innocent workers
77
and employers,"
employers," and the preliminary
preliminary injunction was granted.77
inter alia,
The granting of the preliminary
preliminary injunction
injunction was based, inter
alia, on
plaintiffs' ability to raise serious
the balance
balance of hardships test and the plaintiffs'
serious
78
The
questions about whether the rule was arbitrary
arbitrary and capricious. 78
next section outlines another possible avenue
avenue of challenging
challenging the DHS
Federal Privacy Act.
policy: Section 7 of the Federal
Under Section 7 of the
Policy Under
2. Challenging
Challengingthe New DHS Policy
2.
PrivacyAct
Federal
Federal Privacy
The Federal Privacy Act cannot generally be used as a tool against
against
federal legislation
legislation as it is subject to exception by federal statute, and
72.
72.
73.
74.
75.
76.
77.
78.
Id.
ld
Id. at 1006-07.
1006-07.
ld
Id. at 1005.
ld.
Id. at 1004.
ld.
Id. at 1005.
!d.
1005.
Chertoff,
Chertoff, 552 F. Supp.2d at 1005.
Id. at 1005-10.
ld.
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SS NUMBERS,
AND PRIVACY
PRIVACY
IMMIGRATION,
NUMBERS, AND
515
79 However, Chertoff
Chertoff
Congress has carved
carved out multiple exceptions. 79
provides some language
language that may enable the use of the Federal
Privacy Act in subsequent
subsequent litigation, discussing whether DHS
DRS had
80
80
overstepped its authority
Specifically,
overstepped
authority under congressional
congressional statute. Specifically,
"[i]t is axiomatic
agency's
the court notes that "[i]t
axiomatic that an administrative agency's
power to promulgate legislative regulations is limited to the authority
delegated by Congress. Plaintiffs
Plaintiffs have raised a serious
serious question
exceeded its authority by interpreting the antiwhether DHS exceeded
IRCA.",8 1
of
provisions
discrimination
discrimination
of the
the IRCA.,,81
Because IRCA is not subject to a statutory exemption under
Section
Federal Privacy Act, it is possible that similar
similar
Section 7 of the Federal
82
82
SSNs. One of the
reasoning could apply to the DHS use of SSNS.
requirements under
employer who
requirements
under the new DHS policy is that an employer
receives a no-match
including
no-match letter must go through a series of steps, including
filling out another Form 1-9,
1-9, though these steps may likely fail to
83
As IRCA is not
resolve the discrepancy within ninety days. 83
not
exempted by federal statute under Section 7 of the Privacy Act, the
84
1-9.84
Form 1_9.
the Form
out the
filling out
SSN in
employee may refuse to provide his
employee
his SSN
in filling
according to the DHS, the employee
employee may be fired
In this scenario, according
and the employer will not be prosecuted
prosecuted by the United States under
85
Act's discrimination
Nationality
the Immigration
Immigration and Nationality Act's
discrimination provision.
provision. 85
exceeded its authority in using SSNs to enforce
DHS may have exceeded
enforce
immigration law in this manner, especially
especially in light of the Privacy
Act's specific
specific statement:
The purpose of this act is to . . . collect, maintain, use, or
or
disseminate any record of identifiable
identifiable personal information
infonnation in a
manner that assures that such action is for a necessary
necessary and lawful
current and accurate
accurate for its
purpose, that the information
infonnation is current
79. Federal
Privacy Act,
Pub. L. No.
93-579, § 7(a)(2),
1896 (1974);
79.
Federal Privacy
Act, Pub.
No. 93-579,
7(a)(2), 88
88 Stat.
Stat. 1896
(1974); see also 42
42 U.S.C.
u.s.c. §
SSN use
405(c)(2)(C)(i) (2000) (authorizing
(authorizing SSN
use for
for taxes, public assistance, and motor
motor vehicle registration).
80. Chertoff,
552 F.
Supp. 2d
80.
Chertoff, 552
F. Supp.
2d atat 1010.
Id.(internal
(internal citations
omitted).
81. Id
citations omitted).
82. See Form
1-9, supra
supra note
note 58,
58, at
at 1,3;
1, 3; infra
infra Part II.B.2.
ll.B.2.
Form 1-9,
Chertoff, 552 F.
83. Chertoff,
F. Supp. 2d
2d atat 1004.
84. Form
Form 1-9,
1-9, supra
supranote
84.
note 58,
58, atat 3.3.
Chertoff, 552 F.
85. Chertoff,
F. Supp. 2d
2d atat 1004-05.
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[Vol.
[Vol. 25:2
intended use, and that adequate safeguards are provided to
86
prevent misuse of such information.86
employee has been denied a "right, benefit, or
Additionally, if the employee
privilege
privilege provided by law because
because of [his] refusal to disclose his
social security account number,"
of
number," he could have a private cause of
87
Act.
Privacy
the Federal
of the
Section 77 of
under Section
DHS under
action against DHS
Federal Privacy Act. 87
However, the circuits are currently split on whether Section 7 allows
88
a private right of action. 88
The parameters of what constitutes a
"right, benefit, or privilege"
privilege" will be further discussed in Part
89
III.B.2.a.89
III. LOZANo
V.HAZLETON, RECENT GEORGIA STATE AND
AND LOCAL
LOZANO V.
LEGISLATION
POSSIBLE CHALLENGES
AND PossmLE
CHALLENGES
LEGISLA nON AND
A.
Additional Possible
underFederal
Outlined in
A. Additional
Possible Remedies under
Federal Law,
Law, as Outlined
Lozano v. Hazleton
The Federal
Federal Privacy Act is but one of many remedies under recent
state and federal legislation regarding local and state ordinances; a
recent case in which many of these remedies were argued is the July
90
Lozano v.
Pennsylvania's Lozano
of Pennsylvania's
District of
26, 2007 Middle
v. Hazleton.
Hazleton. 9o
Middle District
This section provides
provides a brief description
description of some of the arguments
made and how they might translate to litigation
of
litigation challenging
challenging the use of
91
immigration law.
SSNs in immigration
law. 91
The City of Hazleton passed two ordinances in the summer of
of
92
The first, the "Illegal
2006 relating
relating to illegal immigration.
"Illegal
Immigration
Relief
Act
Ordinance,"
Immigration Relief
Ordinance," prohibited the employment
employment of
of
illegal immigrants,
immigrants, and the second,
the
"Tenant
Registration
second,
"Tenant Registration
86. Federal
Federal Privacy
Privacy Act,
Act, Pub. L. No.
No. 93-579,
93-579, § 2(B)(4),
2(B)(4), 88 Stat. 1896
1896 (1974).
(1974).
87. Id.
Id. § 7(A)(1).
7(A)(I).
88. Compare
1284, 1286
lth Cir. 2006)
Compare Schwier v. Cox,
Cox, 340
340 F.3d
F.3d 1284,
1286 (1
(11th
2006) (holding
(holding aa private
private right of action
exists),
F.3d 1020,
1020, 1026
Dittman v. California,
California, 191
191 FJd
1026 (9th
(9th Cir. 1999)
1999) (holding
(holding the Privacy
Privacy Act
Act
exists), with Dittman
provides
provides no
no private
private right
right of action
action against state agencies).
agencies).
89.
89. Federal
Federal Privacy
Privacy Act,
Act, Pub.
Pub. L. No.
No. 93-579,
93-579, §§ 7(A)(1),
7(A)(I), 88
88 Stat. 1896
1896 (1974);
(1974); see
see infra Part
Part III.B.2.a.
III.B.2.a.
90. Lozano
Lozano v.
484-85 (M.D.
90.
v. Hazleton,
Hazleton, 496
496 F.
F. Supp.
Supp. 2d
2d 477,
477,484-85
(M.D. Pa
Pa 2007).
2007).
91.
lI1.A.l-3.
91. See
See infra
infra Part
Part III.A.I-3.
92.
92. Lozano,
Lozano, 496
496 F.
F. Supp.
Supp. 2d
2d at
at 484-85.
484-85.
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8IMMIGRATION, SS
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517
Ordinance,"
required tenants to obtain an occupancy
occupancy permit,
pennit, which
Ordinance," required
requires proof of legal immigration
immigration status in order to rent an
93
Hazleton. 93
apartment in
in Hazleton.
1. Equal
Protection
1.
Equal Protection
The Lozano plaintiffs failed in their attempt at an equal protection
protection
discriminatory intent on
argument because
because they were
were unable to show discriminatory
94 Hazleton
the part of city officials.94
ordinance before
Hazleton had amended its ordinance
trial to remove any reference to the use of race or national origin
origin in
95
95 Plaintiffs maintained
determining
who
had
violated
the
ordinance.
maintained
detennining
that the intent to discriminate was still present, and thus the ordinance
ordinance
96
96
violated equal protection. But the court held that neither the
amendment
amendment of the ordinance
ordinance nor the testimony of city officials
97 Although Latino workers in
demonstrated
discriminatory
demonstrated discriminatory intent.97
suffer
industries heavily populated by illegal immigrants would likely suffer
on account of the measure,
measure, statutes are unlikely to clearly
clearly indicate
indicate
98
intent.
such
98
2. Privacy
Privacy Rights
The Lozano court concluded
concluded that the ordinance
ordinance in question was too
vague for the court to perform
perfonn the required balancing test for
evaluating
information since
evaluating the privacy right in disclosing personal infonnation
the ordinance
"[p]roper
identification
ordinance did not state what constituted "[p
]roper identification
99
showing proof of legal citizenship
residency." In the case of
of
citizenship and/or residency.,,99
"balanc[ing] a
SSN disclosure, courts would likely utilize the test of "balanc[ing]
93. Id.
Id.
Id.at 540.
94. Id
95. Id
Id.at
at 539-40.
539-40.
Id.("The equal protection
96. Id
protection 'clause
'clause prohibits
prohibits states from intentionally discriminating
discriminating between
between
individuals on
on the
the basis
basis of
of race"')
race"') (quoting
Jersey, 419
(3d Cir.
Cir. 2005».
2005)).
individuals
(quoting Antonelli
Antonelli v.v. New
New Jersey,
419 F.3d
F.3d 267,
267, 247
247 (3d
Lozano, 496 F.
540 ("To
97. Lozano,
F. Supp. 2d
2d atat 540
(''To prove intentional
intentional discrimination
discrimination by
by aa facially neutral
neutral policy,
show that
decision maker...
the policy
of,' not
not
aa plaintiff
plaintiff must
must show
that the
the relevant
relevant decision
maker ... adopted
adopted the
policy atat issue
issue 'because
'because of,'
merely
'inspite
spite of,'
of,' its
adverse effects
effects upon
an identifiable
identifiable group")
group") (quoting
Pryor v.
NCAA, 288
288 F.3d
merely 'in
its adverse
upon an
(quoting Pryor
v. NCAA,
F.3d
2002)).
548, 562
562 (3d Cir. 2002».
supra note
98. See Preston VI, supra
note 69 (indicating
(indicating that Latinos in the
the agricultural, meat-packing,
construction and
and health
are especially
especially vulnerable).
vulnerable).
construction
health care
care industries
industries are
Lozano, 496 F.
99. Lozano,
F. Supp. 2d
2d atat 542-43.
542-43.
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(VoL
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25:2
possible and responsible government
interest in disclosure against the
100
interests."
privacy
interests."JOo
individual's
3. Federal
FederalPre-Emption
3.
Pre-Emption
One of the strongest arguments against local anti-illegal
immigration measures is federal pre-emption under the Supremacy
Supremacy
0
"[i]mmigration
Lozano. 101 The court held that "[i]mmigration
Clause, as illustrated in Lozano.'
is an area of the law where there is a history of significant federal
presence and where the States have not traditionally
traditionally occupied the
presence
field.
In
fact
...
immigration
...
is a federal concern not a state or local
field.
1 2
matter."
0 As noted above, immigration law has been traditionally
matter.,,102
traditionally
controlled by federal statutes such as IRCA, and pre-emption
pre-emption should
be one of the most successful arguments
arguments when challenging a state or
or
03
1
statute.
local
103
B. Challenges
Challenges Under
Under Section
Section 77 of the Federal
PrivacyAct
Federal Privacy
Act
As mentioned above, Section
Section 7 of the Federal Privacy Act is
unique in that it applies to state and local agencies in addition to
to
10 4
federal agencies.
agencies.104
Georgia law has also previously expressed
expressed
concern
of
concern about
about issues
issues of SSN privacy, providing
providing a long list of
documents
documents which
which are not required
required to be publicly disclosed;
disclosed; this
includes
includes an individual's SSN, which, in various situations and
10 5
document
The Federal
document types, may be redacted from public records. 105
Privacy
state and local
Privacy Act
Act is a possible tool in 10challenging
challenging
6
I06
SSNs.
collecting
on
rely
legislation
legislation that rely on collecting SSNS.
100. Id.
Id. at 544
544 (quoting
(quoting Sterling v. Borough
Borough of
of Minersville,
Minersville, 232
232 F.3d
F.3d 190, 195 (3d
(3d Cir. 2000).
2000).
101. Id.
dat517-529.
101.
at 517-529.
102. Lozano, 496
518 n.41.
496 F. Supp. 2d
2d atat SIS
nAI. But see Ariz.
Ariz. Contractors
Contractors v.v. Goddard,
Goddard, 534
534 F.
F. Supp.
Supp. 2d
2d
(2008); Gray
1036, 1046-47, 1052
1052 (200S);
Gray v.v. City
City of Valley
Valley Park, No.
No. 4:07CV00881,
4:07CVOOSSl, 2008
200S U.S.
U.S. Dist.
Dist. LEXIS
LEXIS
7238
7238 atat *23-*25,
·23-·25, *61
·61 (both
(both holding
holding that
that aastate
state act
act regarding
regarding licensing
licensing sanctions
sanctions was
was consistent
consistent with
federal
federal immigration
immigration law
law and
and therefore
therefore not
not pre-empted).
pre-empted).
103.
103. 8SU.S.C.
U.S.C. § 1324 (2006);
(2006); see also Lozano, 496
496 F.F. Supp.
Supp. 2d
2d atat 518
SIS n.41.
nAI. But see Motomura,
Motomura, supra
supra
note
2060-65 (noting "a spectrum
note 23,
23, atat 2060-65
spectrum of
of views"
views" in recent
recent federal cases
cases regarding
regarding whether
whether
"subfederal" immigration
enforcement conflicts
"subfederal"
immigration enforcement
conflicts with
with federal
federal law).
law).
104.
104. Federal
Federal Privacy Act,
Act, Pub.
Pub. L. No.
No. 93-579,
93-579, § 7(A)(I),
7(AXl), 88
SS Stat.
Stat. 1896
IS96 (1974).
(1974).
105.
105. O.C.G.A.
O.C.G.A. § 50-18-72
50-1S-72 (Supp.
(Supp. 2008).
200S).
106.
(1998).
106. See, e.g., Komuves,
Komuves, supra
supra note
note 3,3, atat 552
552 (199S).
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SS NUMBERS,
NUMBERS, AND
AND PRIVACY
PRIVACY
IMMIGRATION,
519
1. Previous
Previous Applications of
ofthe Privacy
Privacy Act
Act
Several cases
cases in Georgia
Georgia have
have evaluated
evaluated the applicability
applicability of the
Several
Privacy
gun permit
permit applications
applications and voter
voter
Privacy Act
Act to SSN requests
requests on gun
107
1
0 7
In Schwier v. Cox, plaintiffs
registration
plaintiffs submitted their
registration forms.
voter registration
registration applications
applications without
without supplying
supplying their SSNs and were
told
told that
that their applications
applications would
would be rejected
rejected unless they
they supplied
supplied the
108
information.108 The district court
court originally held that
that Section 7 of the
information.
Federal
of
Federal Privacy
Privacy Act did not entitle
entitle private
private plaintiffs
plaintiffs to a cause
cause of
action; the Court of Appeals
Appeals of the Eleventh Circuit
Circuit reversed
reversed and
0 9 On remand,
remanded. 1l09
remand, the
the Northern
Northern District of Georgia
Georgia rejected
rejected
the argument
state government,
government, stating,
argument of the state
Plaintiffs correctly
correctly indicate that Congress has made some
some
exceptions to the Privacy
exceptions
Privacy Act, allowing
allowing states to require
...citing
before receiving
receiving some benefit ...
citing
disclosure of one's SSN before
exceptions for jury selection
selection lists ...
... driver's licenses
licenses and motor
motor
... and various
vehicle
various other licenses. Congress has
vehicle registration
registration ...
.... Accordingly,
Accordingly,
not made
made an exception for voter registration
registration ....
0
°
the ball is in Congress'
court."11
Congress' court.
Cason, the Eleventh
In Camp v. Cason,
Eleventh Circuit Court of Appeals held the
district court had mistakenly dismissed the plaintiffs claims as moot
challenged the need for his SSN to be included on a gun
when he challenged
III The court held that the revised form, indicating
license application.
application."'
"optional," did not satisfy
that disclosure was "optional,"
satisfy Camp's claim that the
7(b)-requiring
form still violated Section
Section 7(b
)-requiring that the agency "shall
"shall
inform
inform .
. .. ..by
by what statutory or other authority
authority such number is
' 112 However, other cases
solicited, and what uses will be made of it."
it.,,112
challenges fall under the federal exemption
have held that many challenges
(1 1th
at 2007 U.S. App.
Camp v.
v. Cason,
Cason, 220
Appx. 976 (II
107. Camp
107.
220 Fed.
Fed. Appx.
th Cir.
Cir. 2007), available
available at
App. LEXIS 6882;
6882;
2005).
340 F.3d
F.3d 1285-86
1285-86 (11th
(11th Cir.
Cir. 2005).
Schwier
Schwier v.
v. Cox,
Cox, 340
Schwier, 340 F.3d
108. Schwier,
F.3d at 1285-86.
Id. at
at 1288, 1297.
109. Id
110. Schwier v.
110.
v. Cox, 412
412 F.F. Supp. 2d 1266, 1274 (N.D. Ga. 2005).
available at
at 2007 U.S.
*14 (11th
111. Camp v. Cason,
Ill.
Cason, 220 Fed.
Fed. App'x. 976,
976, at ·14
(11th Cir. 2007),
2007), available
U.S. App.
LEXIS 6882.
6882.
LEXIS
112. Id·8
Id.*8 (quoting
(quoting Federal
Federal Privacy Act, Pub. L. No. 93-579, §§ 7(A)(2),
112.
7(A)(2), 88 Stat. 1896, 1909 (1974)).
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[Vol. 25:2
25:2
(Vol.
clause of the Privacy Act,113
Act," 3 including driver's licenses,114
licenses, 114 public
company.116
private company. I16
by aa private
15 or denial of a service by
assistance, 115
2. Using
Using the Federal
FederalPrivacy
PrivacyAct to Challenge
Challenge Georgia's
Georgia's State
State
2.
andLocal Immigration
ImmigrationLaw
Law
and
Since the Eleventh
Eleventh Circuit has held the Federal Privacy Act
provides a valid cause of action for an individual, it is a possible
legislation."1177
avenue of litigation regarding recent state and local legislation.
One essential question when evaluating the usefulness of the Federal
Privacy
Privacy Act in challenging legislation' 18is what qualifies as a "right,
law.""
provided by
benefit, or privilege provided
by law.,,118
a. In Georgia,
Georgia, What Qualifies
Qualifies as
as a Right,
Privilege
Right, Benefit,
Benefit, or Privilege
Provided
by
Law?
Provided
authorized in a
Picture the following scenario: a county auditor, as authorized
employer who is either an
recent county ordinance, pays a visit to an employer
l 9 To
existing county contractor
contract."119
contractor or competing
competing for a county contract.
verify whether
employer has complied with the employee
whether the employer
ordinance--"Ordinance to
verification process as outlined in the ordinance-"Ordinance
Revise the Gwinnett County
Ordinance"-he requests the
County Purchasing
Purchasing Ordinance"-he
120 One employee
employees provide him with their SSNs. 120
employees
employee refuses,
refuses,
and as a result the employer
is
told
he
must
fire
the
employee
employer
employee or lose
113.
113. Federal
Federal Privacy
Privacy Act, Pub.
Pub. L. No.
No. 93-579,
93-579, § 7(A)(2),
7(A)(2), 88 Stat. 1896 (1974).
(1974). Thus, even
even ifif the use
use
of
SSN is
government still has
of the
the SSN
is enabled
enabled by
by statute,
statute, the
the government
has aa responsibility toto inform
inform the
the public why
why the
number
number isis required.
required. See, e.g., Georgia
Georgia Department
Department of
of Human
Human Resources,
Resources, Application for TANF
(Temporary
for Needy
(Temporary Assistance
Assistance for
Needy Families),
Families), Food
Food Stamps,
Stamps, and
and Medical Assistance, atat 2,2,
http://www.dhr.georgia.gov/portal/site/DHR/
http://www.dhr.georgia.gov/portal/siteIDHR/ (follow "How
"How do
do II apply
apply for
for Medicaid?" hyperlink;
hyperlink; then
then
follow
Application (English)"
follow "Get
"Get Application
(English)" hyperlink) (indicating
(indicating that the SSN is voluntary
voluntary but persons
persons who
who do
do
not
not supply
supply itit will
will not
not be
be eligible
eligible for
for benefits,
benefits, and
and that
that SSNs
SSNs will
will be
be used
used to
to verify
verify family income
income and
and be
be
matched
matched against
against other
other government
government agency databases).
databases).
114.
114. 42
42 U.S.C.
U.S.C. § 405(c)(2)(C)(i)
405(c)(2)(C)(i) (2006).
(2006).
115.
115. Id.
[d.
116.
1351,2000 WL
26, 2000).
116. Ford
Ford v.v. Bank of
of Am.,
Am., 221
221 F.3d
F.3d 1351,2000
WL 1028238
1028238 (10th
(10th Cir. July
July 26,2000).
117.
th Cir.
117. Schwier
Schwier v.v. Cox,
Cox, 340
340 F.3d
F.3d 1284, 1285-86
1285-86 (11
(11th
Cir. 2005).
2005).
118.
118. Federal
Federal Privacy
Privacy Act,
Act, Pub.
Pub. L. No.
No. 93-579,
93-579, § 7(A)(1),
7(A)(I), 88
88 Stat. 1896 (1974).
(1974).
119.
I, supra
119. Gwinnett
Gwinnett County
County Ordinance
Ordinance n,
supra note
note 1.1. Although
Although the
the ordinance
ordinance has
has now
now been
been modified
modified toto
no
no longer
longer require
require direct
direct submission
submission of
of SSNs,
SSNs, SSNs
SSNs must
must still
still be
be supplied
supplied to the
the E-Verify
E-Verify system
system as
as
outlined
outlined inin state
state law.
law. See
See discussion
discussion supra
supra Part
Part Il.B.3.
m.B.3.
120.
120. Gwinnett
Gwinnett County
County Ordinance
Ordinance II, supra
supra note
note 1.1.
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12 1
the contract. 121
Has a violation of the Federal Privacy
Privacy Act taken
place?
place? That depends on whether the three possible losses in this
scenario-an existing
scenario--an
existing county contract, a bid at a county contract, or
or
an employee's
employee's job with the subcontractor--qualify
subcontractor-'lualify
as
a
"right,
122
by law."'
provided by
law.,,122
benefit, or privilege as provided
b. Right to Employment
Under the original Gwinnett
Gwinnett County ordinance, if an employee
employee
23
fired. 1123
be
could
he
contractor,
county
a
to
SSN a county contractor, he could be fired.
refused to supply his SSN
In Georgia, the right to employment
employment will likely not be recognized;
recognized; in
1997, the Eleventh Circuit stated in DeKalb
Stone
v.
DeKalb
County:
DeKalb
DeKalb County:
"[A]ny
...
"[A]ny property interest in employment [is] a state-created right ...
rights created by state law . . . are protected by procedural,
procedural, not
substantive, due process because
substantive due process protects
because substantive
protects
124 However, the Supreme
only rights created
created in the Constitution.
Constitution.,,124
Court has held that although the liberty interest guaranteed by the
Fourteenth Amendment
Amendment includes the right "to engage in any of the
Fourteenth
common occupations
life," it may be limited to those denials that
occupations of life,"
deal with '''a
"'a complete prohibition
engage in a calling,'
calling,'
prohibition of the right to engage
and not merely a 'brief
'brief interruption'"
interruption' in one's access
access to work in a
125
125
Relying on this ruling, the Ninth Circuit stated that if
given field.
the denial of a professional
professional permit
permit would prohibit an individual from
employment
in
an
entire
field,
it would qualify as a right, benefit, or
or
employment
126
Although American
privilege protected under the Privacy
Privacy Act. 126 Although
Federation
"[f]oss of a job is an
Labor v. Chertoff noted, the "[I]oss
Federation of Labor
economic injury that constitutes
standing," whether
economic
constitutes injury in fact for standing,"
loss of a job qualifies
as
denial
of
a
right,
benefit,
or privilege under
qualifies
127
questionable.
highly
is
Privacy Act
Act is highly questionable. 127
Section 7 of the Federal Privacy
121. Id.
121.
Id.
7(AXI), 88 Stat. 1896 (1974).
122. Federal Privacy Act, Pub. L. No. 93-579, § 7(AXI),
(1974).
123. Gwinnett County Ordinance 1,I, supra note
note 1.I.
124. DeKalb Stone Inc. v. DeKalb County, 106 F.2d 956,960(1lth
956, 960 (11th Cir. 1997).
564, 572 (1972);
F.3d 1020,
1020, 1029
125. Bd. of Regents
Regents v. Roth, 408 U.S. 564,572
(1972); Dittman v. California,
California, 191 F.3d
1029
(9th
(9th Cir. 1999).
126. Dittran,
Dittman, 191 F.3d 1029-30.
1014 (N.D. Cal. 2007).
127. Am. Fed'n of Labor v. Chertoff, 552
552 F.
F. Supp. 2d
2d 999,
999,1014
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(VoL 25:2
[VoL
c. Right to Contract
Contract
c.
Is a government
government contract a "right, benefit, or privilege
privilege provided by
by
law"
Act? 128 In Georgia,
law" and thus protected
protected under the Federal Privacy
Privacy Act?128
29
at least one case refers to government contracts
contracts as
as aa "benefit.'
"benefit.,,129
protecting the right to
Additionally, Georgia law has a history of protecting
contract;
contract; in 1987, the Georgia Supreme Court stated:
This court has repeatedly
repeatedly declared that the right to contract, and
for the seller and purchaser to agree upon a price, is a property
right protected
protected by the due-process
due-process clause of our Constitution, and
unless it is a business affected with a public interest,
interest, the General
30
that
abridge that right.
authority to
Assembly is without authority
to abridge
right. 130
However, there has been mixed precedent
precedent regarding
regarding to what extent
131
the
upon
infringe
can
government
Georgia's
Georgia's
upon the right
right to
to contract;
contract; 131
government
government contracts would likely be designated as businesses
"affected with a public interest.,,132
interest."' 32 For an industry or any particular
"affected
particular
"affected with a public interest,"
interest," it is required
business to become
become "affected
required to
conclusion that it has
"be so applied to the public
public as to authorize the conclusion
been devoted to a public use and thereby its use, in effect, granted
granted to
funded with tax dollars, would
the public;"
public;" government contracts,
contracts,
133
category.
this
into
seem to fall
this category.133
Additionally, the phrasing of the relevant
relevant statutes gives counties134a
contracts. 134
for county
bids for
selecting bids
good deal of discretion in selecting
county contracts.
O.C.G.A. § 36-19-2.2 states that when a public works contract
o.e.G.A.
contract comes
7(A)(1), 88 Stat. 1896 (1974).
128. Federal Privacy Act, Pub. L. No. 93-579,
93-579, § 7(A)(I),
(1974).
129. "We
"We have
that only
as a
a 'last
resort' may
may race
race be
used in
in awarding
awarding valuable
public benefits
129.
have held
held that
only as
'last resort'
be used
valuable public
contracts." Johnson v.
Univ. of
(11 th
such as
as government contracts."
v. Bd. of Regents
Regents of
ofUniv.
of Ga., 263
263 F.3d 1234, 1254 (11th
2001) (emphasis
Cir. 2001)
(emphasis added).
130. Strickland v. Ports
Ports Petroleum Co., 353
353 S.E.2d
S.E.2d 17, 18 (Ga. 1987)
1987) (holding
(holding that
that the
the gasoline
industry is
not affected
interest) (internal
with aa public
(internal quotations
quotations omitted;
original). See
industry
is not
affected with
public interest)
omitted; emphasis
emphasis inin original).
Federalism" Before its Time, 55 AM.
also Anthony
Anthony B.
B. Sanders, The "New Judicial Federalism"
AM. U.
U. L. REv., 457
457
(2005) (reviewing
right to
to contract
precedent in
in state
state courts).
(2005)
(reviewing right
contract precedent
courts).
1988) (commenting that the
131. See O'Brien v. Union Oil
Oil Co., 699
699 F. Supp 1562, 1568 (N.D. Ga. 1988)
court must
must make
make its
decision "in
"in view
somewhat inconsistent"
precedent regarding
the right
right to
regarding the
court
its decision
view of
of [][] somewhat
inconsistent" precedent
to
contract).
132. See Executive
Executive Town
Country Servs.,
S.E.2d 190,
190, 193
193 (1989).
Town && Country
Servs., Inc. v.v. Young,
Young, 376
376 S.E.2d
(1989).
Id. (quoting Harris v. Duncan, 208 Ga. 561,
133. [d.
561, 564 (1951)).
(1951)).
134. O.C.G.A.
O.C.G.A. § 36-19-2.1
36-19-2.1 (Supp.
(Supp. 2008).
2008).
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AND PRIVACY
PRIVACY
523
up for bid, the contract "shall
"shall be let to the lowest responsible bidder,
authority of any such county shall have the right to
but the governing authority
135 However, in Metric
Metric
reject any or all bids for any such contract."'
contract.,,135
Constructors,
Gwinnett County--involving
County-involving the lowest bidder
bidder
Constructors, Inc.
Inc. v. Gwinnett
construction project
on a construction
project suing after he was not awarded the
contract-the court stated that "a disappointed bidder may possess a
contract-the
Law."' 36 As property
protected property interest under Georgia Law.,,136
interests are protected under both the U.S. and Georgia Constitutions,
a protected property interest under the law would seem to fall
into the
137
law."'
by
afforded
privilege
or
category of"a
of "a right, benefit, privilege afforded by law.,,137
Metric Constructors,
Constructors,
An existing contract, by the reasoning
reasoning of Metric
would seem to be an even
clearer
example
of
a
protected
property
even clearer
property
138
138
interest. But the case law on this topic is also mixed: in Bank of
of
interest.
Jackson
County v. Cherry,
Cherry, the Eleventh
"[c]ourts
Jackson County
Eleventh Circuit noted that "[c]ourts
have consistently held that no citizen has a right ...
. . . to do business
139
government."'
with the govemrnent.,,139
3. Testing
Testing the Legality of the Employment Verification
Verification Process
Process
Dictatedby the Georgia
GeorgiaSecurity and
andImmigration
Immigration Compliance
Compliance Act
Act
Dictated
Under the new Georgia state law, every public employer, public
subcontractor must register and participate
contractor, or subcontractor
participate in the
employment
federal work authorization
authorization program
program to confirm employment
140
140
"[f]ederal work authorization
authorization
eligibility of all new employees. The "[f]ederal
electronic verification
verification of work
program" is defined as "any of the electronic
authorization programs operated
of
authorization
operated by the United States Department
Department of
Homeland
Homeland Security
Security or any equivalent federal work authorization
authorization
Homeland
program operated by the United States Department
Department of Homeland
135. O.C.G.A. § 36-19-2.2
36-19-2.2 (Supp. 2008).
2008).
101, 102 (N.D. Ga. 1990).
136. Metric
Metric Constructors,
Constructors, Inc. v. Gwinnett
Gwinnett County,
County, 729 F.
F. Supp. 101,
However,
court held
held that
that because
the bidding
bidding statute
statute allowed
deal of
of discretion
However, the
the court
because the
allowed the
the county
county aa good
good deal
discretion inin
"if it
awarding the contract,
contract, aa cause
cause of
of action could
could stand
stand only "if
it alleges that
that the county
county abused its
discretion
Id.at 103.
discretion in rejecting
rejecting its bid."
bid." Id
137. U.S.
U.S. CoNsT.
CONST. amend.
amend. XIV § I;1; GA.
GA. CONST. art. I,I, § 1.
101.
138. See Metric Constructors,
Constructors, 729
729 F.F. Supp. at 101.
1993) (internal quotations
139. Bank of Jackson County
County v. Cherry, 980 F.2d
F.2d 1362, 1366 (11th Cir. 1993)
quotations
omitted).
13-10-91 (Supp.
140. O.C.G.A. § 13-10-91
(Supp. 2008).
2008).
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STATE UNIVERSITY
UNIVERSITY LAW
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LAW REVIEW
524
(Vol.
[Vol. 25:2
141 The
Security to verify information of newly hired employees."'
employees." 141
Security
statute directs the Commissioner
Commissioner of the Georgia
Georgia Department
Department of Labor
Labor
to create
forms,
rules,
and
regulations
to
effectuate
this
law
and
create
regulations
effectuate
Department of Labor
publish those
materials on the Georgia
Georgia Department
Labor
142
website. 142
In accordance
accordance with the Act, the Georgia Department
Department of Labor
published
rules
on
its
website
entitled
"Public
Employers,
published
website entitled
Employers, their
Contractors and Subcontractors
Subcontractors Required to Verify
Contractors
Verify New Employee
Work Eligibility Through
Through a Federal Work Authorization
Authorization Program:
143
Rules of General
General Applicability.,,143
Applicability."'
The rules state that public
subcontractors "shall
"shall comply with [] this
employers, contractors,
contractors, and subcontractors
rule by utilizing the EEV [Employment
[Employment Eligibility Verification]
Verification] /
144
Program."' This program is a DHS system designed for
Basic Pilot Program."I44
voluntary use by employers
employers and run "in
"in partnership with the Social
Social
145
Security Administration.,,145
participate in the program,
Administration."' In order to participate
employers must go through a registration process and then sign a
Understanding among the employer, the SSA, and
Memorandum of Understanding
Memorandum
1 46
DHS. DHS states that the advantages
advantages of participating
participating include that
DHS.146
"[t]he EEV virtually eliminates Social Security
"[t]he
Security mismatch letters,
improves the accuracy of wage and tax reporting, protects jobs for
authorized U.S. workers, and helps U.S. employers
employers maintain a legal
147
workforce."'
employees' SSNs, though the
workforce.,,147 It appears to require employees'
information provided does not state so directly: "(u)sing
information
"(u)sing an
automated system, the program involves verification checks of SSA
and DHS databases. The EEV MOU, User Manual and Tutorial
requirements."'' 4 8
contain instructions
instructions ...
... on EEV procedures
procedures and
and requirements.,,148
141. O.C.G.A. § 13-10-90(b)(2)
13-10-90(b)(2) (Supp. 2008).
141.
2008).
13-10-91(d) (Supp.
142. O.C.G.A. § 13-10-91(d)
(Supp. 2008).
COMP. R. &
& REGS.
143. GA. COMPo
REGS. 300-10-1
300-10-1 (2007).
144. Id
Jd. ch.
ch. 300-10-1-.02(3).
300-10-1-.02(3).
145.
U.S. CITIZENSHIP
SERVICES, "I
"I AM
USE THE
145. u.s.
CITIZENSHIP & IMMIGRATION
iMMIGRATION SERVICES,
AM AN
AN EMPLOYER...
EMPLOYER ... How
How Do
Do I...
1 ... USE
THE
EMPLOYMENT
PROGRAM?" 1
1 (2007),
(2007), available
available at
EMPLOYMENT ELIGIBILITY
ELIGIBILITY VERIFICATIoN/BAsIC
VERIFICATIONIBASIC PILOT
PILOT PROGRAM?"
http://www.USCIS.gov/files/nativedocuments/EEV_FS.pdf.
http://www.USCIS.goy/fi1es1nativedocumentslEEV]S.pdf.
146. Id.
Jd.
147. Id.
Jd.
148. Id.
Jd. at 2.
2.
at
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525
There are significant concerns about data privacy
privacy and the use of
There
of
149
149
the EEVlBasic
EEV/Basic Pilot Program.
The National
National Immigration
Immigration Law
Center
"[t]he House Oversight
Government Reform
Center reported that "[t]he
Oversight and Government
Committee
'D'to DRS
DHS in computer security
security for 2006 (up
Committee gave a 'D'
from a 'F'
'F' for the previous 3 years),"
years)," and that the FBI was
150 Under the new law, the use
investigating
"cyber break-in."'
investigating a recent "cyber
break-in.,,150
of this system is now mandatory in the state of Georgia
Georgia for all
15 1
government
government employers, contractors, and subcontractors.
subcontractors. 151
Because a
state agency is requiring
requiring disclosure
disclosure of SSNs, this process should fall
52 If an employee refuses
under Section 7 of the Federal Privacy
Privacy Act. 152
to disclose his SSN for this purpose,
purpose, he could be fired, or the
53 As discussed above, if
contractor
could
be
denied
the
contract. 1153
contractor
access
access to employment
employment or contracts are deemed
deemed to be a "right, benefit,
or privilege as provided by law,"
law," by enacting
O.C.G.A. § 13-10-91,
13-10-91,
enacting O.CG.A.
Georgia
Georgia has violated Section
7 of the Federal
Federal Privacy Act, and the
54
down.'154
law should be struck down.
CONCLUSION
CONCLUSION
The widespread
widespread use of SSNs should be of concern
concern to all residents
155
155
of the United States. One area in which SSNs are frequently used
56 The recent cases of
is in federal, state, and local immigration
immigration law. 1156
of
American
Federation
of
Labor
Hazleton
American Federation
Labor v. Chertoff and Lozano v. Hazleton
illustrate
recent
successful
challenges
to
federal
and
local
laws
that
illustrate
challenges
1157
57
may involve the use of SSNS.
SSNs. In Chertoff,
Chertoff,a preliminary
preliminary injunction
injunction
was granted, temporarily barring the new federal rules from being
being
Center, Basic
Basic Pilot/E-Verify:
17,
149. See, e.g., National Immigration Law
Law Center,
Pi/oIlE-Verify: Not aa Magic
Magic Bullet, Sept.
Sept. 17,
2007,
http://www.nilc.org/immsemplymnt/ircaempverif/e-verifynomagicbullet_2007-09-17.pdf.
2007, at 2, http://www.nilc.org/immsemplymntlircaempverifle-verify_
nomagicbullet_2007-09-17 .pdf.
150. Id.;
Id; see also FISMA
available at http://republicans.oversight.house.govIFISMN
http://republicans.oversight.house.gov/FISMA/ (last
FISMA Grades, available
visited
ContractorBlamed in DHS Data
visited Jan.
Jan. 8,8, 2009);
2009); Ellen Nakashima
Nakashima and Brian Krebs, Contractor
Data Breaches,
Breaches,
WASH.
Al.
WASH. POST,
POST, Sept. 24,
24, 2007, at AI.
151.
151. Federal
Federal Privacy
Privacy Act
Act of 1974,
1974, Pub. L. No. 93-579, § 2(B)(1-2), 88
88 Stat.
Stat. 1896 (1974).
(1974).
152. Id
Id.
153. O.C.G.A.
O.C.G.A. § 13-10-91(b)(1-2)(2008).
13-10-91(b)(l-2)(2008).
id; supra
supra Part 111.8.2.
III.B.2.
154. See id.;
155. See supra
supra Part I.B.
LB.
156. Id
Id.
Chertoff, 552 F.
157. Am. Fed'n
Fed'n of
of Labor v. Chertoff,
F. Supp.
Supp. 2d 999,
999, 1002
1002 (N.D. Cal. 2007); Lozano
Lozano v.
Hazleton,
477,484-85
Hazleton, 496 F.F. Supp.
Supp. 2d 477,
484-85 (M.D. Pa 2007).
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GEORGIA STATE UNIVERSITY
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[Vol. 25:2
[Vol.
158
The injunction
plaintiffs' balance of
of
enforced. 158
injunction was based on plaintiffs'
hardships
enforcement could result in a loss of their
hardships argument that enforcement
their
159
59
employment.'
In
Lozano,
plaintiffs
successfully
argued
federal preemployment.
160
emption
emption in striking down a local ordinance.
ordinance. 16o
This note has outlined
outlined
additional avenue of litigation for immigration
an additional
immigration laws that rely on
on
16
1
use of SSNs: the Federal Privacy Act. 161 In Georgia, both the
original
state's
original version of a local Gwinnett County ordinance and the state's
Georgia
Georgia Security and Immigration Compliance Act appear62to violate
SSN. 1162
individual's SSN.
an individual's
requiring an
the Federal Privacy Act by
by requiring
Political and practical backlash
backlash against stringent local
immigration
immigration laws, combined
combined with ongoing litigation, may affect state
and local government's
government's willingness to create and enforce
enforce such
163
163
laws.
Some towns have had such ordinances struck
struck down in court
while others have willingly repealed
repealed the laws due to the legal and
l64
164
economic
consequences.
economic consequences.
The regulation of immigration
immigration is an
165
165
extremely contentious issue. However, it is essential that privacy
privacy
extremely
concerns
overlooked in the battle over
concerns regarding SSNs
not
be
overlooked
166
immigration legislation. 166
immigration
Katharine
Katharine Madison
Madison Burnett
Burnett
Chertoff,552 F. Supp. 2d at 1002.
158. Chertoff,
159. Id.; see supra
supraPart lI.B.1.
II.B.I.
160. See supra
supra Part IlI.A.3.
II1.A.3.
161.
supra Parts II-III.
11-11I.
161. See supra
162. See supra
supra Part III
IlI.
163.
See, e.g., Ken Belson &
& Jill P. Capuzzo, Towns Rethink Laws Against Illegal
Illegal Immigrants,
Immigrants,N.Y.
163. See,
TIMES,
TIMES, Sept. 26, 2007,
2007, at Al (describing the exodus of town residents after immigration ordinances were
enacted, the subsequent negative economic effects on the town, and the financial toll of defending
defending
lawsuits
2007,
TiMES, Aug. 5,
5,2007,
lawsuits challenging the ordinances);
ordinances); see also Alex Kotlowitz, Our Town, N.Y. TIMES,
(magazine),
(magazine), at 30 (describing
(describing political, social, and ethnic divisions in an Illinois town as a result
result of
of
proposed
proposed illegal immigration ordinances).
164. See Belson &
supra note 163 (stating that Riverside, New Jersey chose to rescind its
& Capuzzo,
Capuzzo, supra
ordinance
"joining a small but
ordinance penalizing landlords who rented to or employed illegal immigrants, 'Joining
growing list of municipalities
municipalities nationwide that have begun rethinking
rethinking such laws as their legal
legal and
economic consequences have become clearer.").
economic
supra INTRODUCfION.
INTRODUCTION.
165. See supra
supra Part I.B.
166. See supra
lB.
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