No Papers? You Can't Have Water: a Critique of Localities' Denial of Utilities to Undocumented Immigrants
| Citation | Vol. 31 No. 4 |
| Publication year | 2017 |
No Papers? You Can't Have Water: A Critique of Localities' Denial of Utilities to Undocumented Immigrants
Azadeh Shahshahani
Kathryn Madison
Access to utility services is a crucial part of a person's ability to live and make a home in a particular place. For those who are denied service by the local agency or company that provides public utilities—like electricity and water—there are very few ways to achieve a decent and dignified life in that locality. Even in the twenty-first century, some households in the United States face the risk of going without electricity or running water in their homes because of their national origin or immigration status. In Alabama, utility service providers have declined to provide service to applicants who cannot provide a Social Security Number (SSN) or specific identity documents that are not available to undocumented immigrants. At least two cities in Georgia have similar policies. The practice of denying utility services to individuals who cannot provide a SSN violates U.S. federal law and is contrary to international human rights norms and obligations. In this Article, we will discuss two approaches to this problem. First, we will discuss options for challenging these policies under U.S. law. The Privacy Act may be utilized to challenge state and local government policies that require SSN disclosure for utility service, while the Fair Housing Act (FHA) provides a basis to challenge any government or private utility provider based on the disparate impact of these policies on noncitizens and certain racial groups. Second, we will analyze how such utility service denials violate international human rights treaties and norms regarding security of the person, adequate standards of living, the right to water, and the right to equal treatment. Together, these domestic and
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international legal authorities provide a basis for immigrants' rights and human rights advocates to challenge these policies in court and lobby against the adoption of such policies.
Access to utility services is a crucial part of a person's ability to live and make a home in a particular place. For those who are denied service by the local agency or company that provides public utilities—like electricity and water—there are very few ways to achieve a decent and dignified life in that locality. Some households might be fortunate enough to find a rental unit where the landlord provides the utility service. Otherwise, the individuals and families are forced to either move to a different place or go without utility service in their homes.
Even in the twenty-first century, some households in the United States face the risk of going without electricity or running water in their homes because of their national origin or immigration status. In Alabama, utility service providers have declined to provide service to applicants who cannot provide a Social Security Number (SSN) or specific identity documents that are not available to undocumented immigrants.1 Human Rights Watch reports that some Alabama families lost utility service to their homes or were even forced to relocate to another state as a result of these policies.2 At least two cities in Georgia, LaGrange and Calhoun, have similar policies.3
Families who are unable to comply with a city utility provider's SSN requirement have very few options to obtain housing within the city.4 When no adult member of the household is able to contract for utility services, the family must look for rental housing where the landlord provides the utility services or the utility account is in someone else's name. However, should that arrangement fall through, these families would be forced to leave the city or risk going without utility service to their homes.
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The practice of denying utility services to individuals who cannot provide a SSN violates U.S. federal law and is contrary to international human rights norms and obligations. In this Article, we will discuss two approaches to this problem. First, we will discuss options for challenging these policies under U.S. law. The Privacy Act may be utilized to challenge state and local government policies that require SSN disclosure for utility service, while the Fair Housing Act (FHA) provides a basis to challenge any government or private utility provider based on the disparate impact of these policies on noncitizens and certain racial groups. Second, we will analyze how such utility service denials violate international human rights treaties and norms regarding security of the person, adequate standards of living, the right to water, and the right to equal treatment. Together, these domestic and international legal authorities provide a basis for immigrants' rights and human rights advocates to challenge these policies in court and lobby against the adoption of such policies.
This Part will discuss arguments against the SSN requirement based on U.S. law. First, we will analyze whether the Privacy Act of 1974 prohibits state utility agencies from denying services based on an applicant's refusal to disclose her SSN. Second, we will analyze how the SSN policy might be challenged under the Fair Housing Act using the disparate-impact theory recently upheld by the U.S. Supreme Court.5 Finally, we will discuss the comparative risks and benefits of each approach, along with other factors that should inform advocacy strategies.
A. Privacy Act and Required Disclosure of SSNs
The Privacy Act of 1974 includes a provision that severely restricts state and local governments' authority to require individuals to disclose their SSNs.6 The Privacy Act primarily prescribes detailed limitations on the solicitation and use of personal information by the federal government. However, § 7 of the Privacy Act makes it "unlawful for any federal, state, or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security
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number."7 There are two exceptions: 1) if the disclosure is required by federal statute, or 2) if the agency's records system required a SSN pursuant to a regulation or statute adopted before January 1, 1975.8
Although benefits may not be denied based on an applicant's refusal to disclose, an agency may request that applicants voluntarily disclose their SSN. The Privacy Act requires any local government agency to provide applicants with certain information about a request for SSN disclosure.9 First, the agency must indicate whether the disclosure is voluntary or mandatory pursuant to one of the above exceptions.10 Second, the agency must indicate the statutory authority for the request, and inform the applicants about how their SSN will be used.11
The following sections will discuss how each of the Privacy Act exceptions and requirements might apply to a local utility agency. First, it is important to note that § 3 of the Privacy Act defines an "individual" as a U.S. citizen or lawful permanent resident (LPR).12 Local governments may attempt to use this provision to argue that the Privacy Act does not apply to undocumented persons, and the agency may deny benefits to an undocumented person for failure to provide a SSN. In order to distinguish between a citizen or LPR—whose refusal to disclose is protected by the Privacy Act—and an undocumented person who does not have a SSN, the agency would have to make an inquiry into every applicant's immigration status. Except as permitted by federal law, local agencies have no authority to inquire about an individual's immigration status, and are particularly barred from regulating a person's residence in the jurisdiction based on immigration status.13 However,
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the definition of "individual" in the Privacy Act could affect an undocumented person's standing to challenge the utility denial in federal court.
1. Applicability of Privacy Act § 7 to Local Utility Providers
Advocates must be prepared to rebut arguments that § 7 of the Privacy Act does not apply to local utility providers. First, in localities where the utility service is privately owned, advocates must show that the utility provider is a "government agency" for purposes of the Privacy Act. Case law interpreting § 7 is generally scarce. The only federal court to rule on this issue is in the District of New Jersey, which has repeatedly held that a private entity can be subject to the Privacy Act if the state or local government has "sufficient control over and involvement in" the entity's operations.14 In many municipalities in Alabama and elsewhere, a department of the municipal government provides and regulates utilities.15 But even if a private company were involved, the requirement of sufficient control and involvement is unlikely to be a significant hurdle; because of the highly regulated nature of public utilities, state or local government arguably always has sufficient control and involvement over a public utility provider to satisfy this criterion.16
Challenged utility agencies might also question whether state and local government agencies can be sued under the Privacy Act at all. There is a significant split among federal district and circuit courts as to whether private individuals may sue a state or local agency under the Privacy Act.17 The discrepancy arises because the Privacy Act was codified as a note to 5 U.S.C. § 552a, in a section of the United States Code that primarily deals with administrative procedure; for example, the federal Freedom of Information Act
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is included in the same section.18 Section 552a(a)(1) incorporates a definition of "agency" that only includes federal government entities.19 However, § 7 of the Privacy Act itself explicitly includes state and local...
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