Illegal Immigration, Social Security Numbers, and the Federal Privacy Act: a Suggested Avenue of Litigation

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2010
• Citation: Vol. 25 No. 2

Georgia State University Law Review

Volume 25 , „

Article 1

Issue 2 Winter 2008

3-21-2012

Illegal Immigration, Social Security Numbers, and the Federal Privacy Act: A Suggested Avenue of Litigation

Katharine Madison Burnett

Follow this and additional works at: http://digitalarchlve.gsu.edu/gsulr Part of the Law Commons

Recommended Citation

Burnett, Katharine Madison (2008) "Illegal Immigration, Social Security Numbers, and the Federal Privacy Act: A Suggested Avenue of Litigation," Georgia State University Law Review: Vol. 25: Iss. 2, Article 1. Available at: http://digitalarchive.gsu.edu/gsulr/vol25/iss2/1

This Article is brought to you for free and open access by the College of Law Publications at Digital Archive @ GSU. It has been accepted for inclusion in Georgia State University Law Review by an authorized administrator of Digital Archive @ GSU. For more information, please contact digitalarchive@gsu.edu.

ILLEGAL IMMIGRATION, SOCIAL SECURITY NUMBERS, AND THE FEDERAL PRIVACY ACT: A SUGGESTED AVENUE OF LITIGATION

Introduction

In the summer of 2007, Gwinnett County, Georgia, passed an ordinance that included the section, "Employment of Unauthorized Aliens Prohibited."¹ It stated:

The County shall not enter into a contract for the physical performance of services within the state of Georgia unless the contractor shall provide evidence on County-provided forms that it and its subcontractors have within the previous 12-month period conducted a verification of the social security numbers of all employees who will perform work on the County contract to ensure that no unauthorized aliens will be employed.²

Social Security numbers (SSN), though created for the purposes of administering Social Security benefits, now essentially serve as a national identification number.³ In the private arena they are used for tracking financial information (including credit reports), identifying university students, and are commonly indicated on medical records.⁴ Publicly, they are used for tax purposes, employment verification, and for law enforcement purposes, among others.⁵ Flavio Komuves

1. Gwinnett County, Ga., Ordinance to Revise the Gwinnett County Purchasing Ordinance (June 26,2007) (4th Revision), at 6(I)(D) (on file with author) [hereinafter Gwinnett County Ordinance JJ. The ordinance has been modified and renewed (5 th Revision) and is available at http://www.gwuinettcounry.conVdepartments/fira

[hereinafter Gwinnett County Ordinance U] The new version no longer requires direct submission of social security numbers, instead requiring the bidder to utilize the system outlined in O.C.G.A. §§ 1310-90 to -91 (Supp. 2008). See also discussion infra Parts I.A.2 and hi.b.3.

2. Id.

3. Flavio L. Komuves, We've Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers, 16 J. marshall J. computer & Info. L. 529,531—32 (1998).

4. Komuves, supra note 3, at 536-40.

5. Komuves, supra note 3, at 540-49; Jacqueline Lainez, To File or Not to File: Tax Compliance Among Undocumented Immigrant Workers, 3 AM. u. bus. l. brief 23,23 (2007).

503

504 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 25:2

points out that it is "ironic ... that the one area in which a person can refuse the number[] but receive benefits is Social Security itself."⁶

As the use of the Internet has increased, so have concerns about data privacy and the increasing use of SSNs. However, SSNs continue to be widely used; recent changes in illegal immigration law, including the Gwinnett County Ordinance, reflect this trend.⁸

Part I of this Note briefly reviews examples of recent legislation in the area of illegal immigration, with a particular focus on Georgia, and why such legislation's use of SSNs is of concern.⁹ Part II discusses the new proposed amendments to Department of Homeland Security (DHS) employment verification procedures, a resulting lawsuit, and possible challenges under the Federal Privacy Act.¹⁰ Part III examines various state and local legislation regarding employment eligibility verification with a focus on Georgia and possible challenges under constitutional law and under the Federal Privacy Act.¹¹

I. Recent Legislation and Why We Should Be Worried

A. Snapshot of Immigration Legislation at Federal, State, and Local Levels

Illegal immigration and immigration policy are near-constant topics of discussion in the news today.¹² The following sections

6. Komuves, supra note 3, at 549.

7. See generally Judith Beth Prowda, Report: A Lawyer's Ramble Down the Information Superhighway: Privacy and Security of Data, 64 fordham l. REV. 738 (1995).

8. See infra Part I; Gwinnett County Ordinance I & II, supra note 1.

9. See infra Part I.

10. See infra Part II.

11. See infra Part III.

12. See Valerie Barney, Katharine Field & Nichole Hair, Peach Sheet, Professions and Business, 23 Ga. St. u. l. Rev. 247, 249 (2006) (describing illegal immigration as "one of the most controversial issues in the United States today"). For example, from October 10th to 17th, 2007, the New York Times featured eight articles on the topic, describing a variety of new federal, state and local immigration legislation and associated issues. Randal C. Archibold, State Strikes Balance on Immigration, N.Y. Times, Oct. 14, 2007, at A27; Editorial, A Crackdown on Hold, N.Y. Times, Oct. 12, 2007, at A26; Steven Greenhouse, Immigrant Crackdown Upends a Slaughterhouse's Work Force, N.Y. Times, Oct. 12, 2007, at Al; Danny Hakim, DM. V. Chief is Pressed to Defend Plan to Give Licenses to Illegal Immigrants, N.Y. Times, Oct. 16, 2007, at Bl; Jonathan Miller, A Mayor with a Tough Stance on Immigration is on Both Sides Now, N.Y. Times, Oct. 16,2007, at B6; Julia Preston, Judge Suspends Key

Burnett: Illegal Immigration, Social Security Numbers, and the Federal Pri 2008] IMMIGRATION, SS NUMBERS, AND PRIVACY 505

explore three current examples of legislation that use SSNs as an enforcement tool in illegal immigration: one federal, one by the state of Georgia, and one by a Georgia county.

1. Federal Legislation

At the federal level, the DHS recently announced increased enforcement of illegal immigration laws, including more workplace raids and harsher criminal and civil penalties for employers who hire illegal immigrants.¹⁴ This new policy came to national attention with the May 12, 2008 raid on the Agriprocessors meat packing plant in Postville, Iowa.¹⁵ Over 300 workers were arrested.¹⁶ The controversial processes resulted in many workers pleading to jail time and deportation after being charged with social security fraud for using false numbers.¹⁷

The new DHS regulations also included increased penalties for employers who ignore "no-match" letters sent by the Social Security

Bush Effort in Immigration; N.Y. times, Oct. 11, 2007, at Al [hereinafter Preston I]; Julia Preston, No Need for a Warrant, You're an Immigrant, N.Y. times, Oct. 14, 2007, at 43 [hereinafter Preston II]; Two Hires a Mistake, Mayor Says, N.Y. Times, Oct. 14,2007, at A40.

13. See infra notes 20, 24, 28.

14. Julia Preston, U.S. Set for a Crackdown on Illegal Hiring, N.Y. Times, Aug. 8, 2007, at Al [hereinafter Preston III]. Concerns have been raised about the use of these raids to bring sanctions against employers. See Kevin R. Lashus, Magali s. Candler, & Robert F. Lourghran, Fear the ICE Man: Lessons from the Swift Raids to Warm You Up—The New Government Perspective on Employer Sanctions, 32 Nova L. Rev. 391, 391-92 (2008). Some of these workplace raids have resulted in the detention of U.S. citizens. See Emily Bazar, Citizens Sue After Being Detained in Workplace: An Inconvenience or a Violation of Rights?, USA today, June 25, 2008, at 1 A.

15. Adam Belz, Hundreds of Detainees Await Fate After Raid, the gazette (Cedar Rapids, IA), May 13, 2008, at 1 A; Press Release, U.s. Attorney's Office, N. D. Iowa, ICE and Department of Justice Joint Enforcement Action Initiated at Iowa Meatpacking Plant (May 12, 2008), available at http://www.usdoj.gov/usao/ian/press/May_08/5_12_08_Agriprocessors.html.

16. Immigration Raid in Iowa Largest Ever in U.S., lincoln J. star (Lincoln, NE), May 14, 2008, at Al 1; Henry C. Jackson, Iowa Raid Called Largest in U.S., Cm. Trib., May 14,2008, at C6.

17. See The Arrest, Prosecution and Conviction of297 Undocumented Workers in Potsville, Iowa, from May 12 to 22, 2008: Hearing Before the H. Subcomm. on Immigration, Citizenship, Refugees, Border Security and International Law, 110th Cong. (2008) (statement of Dr. Erik Camayd-Freixas, Fed. Certified Interpreter), available at http://judiciary.house.gov/hearings/pdf/Camayd-Freixas080724.pdf; Trish Mehaffey, 234 Detainees Sentenced in Potsville Raid, the gazette (Cedar Rapids, IA), May 23, 2008, at 1A available at http://ww.gazetteonline.com/apps/pbcs.dll/article?AIJ>=/20080522/NEWS/503716059/1006/news; Julia Preston, 270 Immigrants Sent to Prison in Federal Push, N.Y. times, May 24, 2008, at Al [hereinafter Preston IV]; Julia Preston, An Interpreter Speaking Up for Migrants, N.Y. times, July 11, 2008, at Al [hereinafter Preston V].

Georgia State University Law Review, Vol. 25 [2008], Iss. 2, Art. 1 506 GEORGIA STATE UNIVERSITY LAW REVIEW {Vol. 25:2

Administration (SSA).¹⁸ No-match letters are sent by the SSA to inform employers that worker names and SSNs submitted by the employer do not match agency records.¹⁹ Subsequently, on October 11, 2007, the Northern District of California issued a preliminary injunction barring the use of SSA no-match letters as an exclusive basis for employer notice requirements.²⁰ DHS, however, continues to encourage use of its Basic Pilot/Employment Eligibility Verification program, which uses SSNs to allow employers to match employee information against an online database.²¹ DHS Secretary Michael Chertoff defended the system in a June 9, 2008 press conference.²²

2. State Legislation²³

At the state level, the Georgia General Assembly recently passed Senate Bill 529, making it the...