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Some lawyers, private investigators and business groups say a privacy bill spearheaded by a Florida congressman to combat identity theft would hamper key legal functions, such as locating witnesses and criminals, and would interfere with many common business transactions. The House Ways and Means Committee unanimously approved the Social Security Number Privacy and Identity Theft Prevention Act of 2004 on Wednesday — less than a week after it was forwarded by the House subcommittee on Social Security chaired by U.S. Rep. E. Clay Shaw Jr. The Fort Lauderdale Republican has promoted the bill as a way to fight both identity theft and terrorism. At a public hearing in Washington, D.C., Shaw noted that the Federal Trade Commission considers identity theft the “No. 1 consumer complaint.” He asserted that terrorists have used Social Security number fraud “to assimilate themselves into our society.” According to the new report of the National Commission on Terrorist Attacks, the Sept. 11 terrorists exploited weaknesses in the system of issuing driver’s licenses and birth certificates to carry out their attacks. The bill now goes to two other House committees — Energy and Commerce and Financial Services. Ways and Means asked those two panels to vote on it quickly. But opponents, while supporting the bill’s general goals, say it’s off-target because it would hinder their efforts to locate witnesses or debtors, track down heirs and criminals, and even find potential organ or bone marrow donors. Some attorneys who rely on private investigators fret that the bill would significantly boost the cost of locating witnesses. Lawyers and investigators currently rely on subscription-based databases that acquire personal information from government sources. Florida and other states formerly were allowed to sell personal information compiled by their driver’s license, auto vehicle and other departments. But that practice was restricted by a provision of the federal Driver Privacy Protection Act, effective in June 2000, which requires states to obtain the express consent of individuals before releasing personal information about them. “How will you screen school bus drivers to find out if they have a felony conviction for sexual assault in another state?” asked Miami, Fla., private investigator Brian McGuinness, a past president of the 900-member Florida Association of Legal Investigators. Tim Morell, who has grappled with identify theft questions as a member of The Florida Bar’s computer law committee, said that if the bill passes, criminal defense attorneys and attorneys in civil cases would have to do more work to obtain needed information. “You’ll have to have more depositions and more court proceedings to get to the truth,” said Morell, a Boynton Beach solo practitioner. Shaw was on vacation and unavailable for comment. But talking points released by his subcommittee say that private investigators still could access other personal identifying information such as names, addresses and telephone numbers. Also, investigators with a “permissible purpose” under the Fair Credit Reporting Act — such as under a court order, for employment purposes, or for debt collection — could still utilize Social Security numbers. Business groups have joined the opposition to HR 2971. Banking, insurance and securities trade associations told the chairman of the House Ways and Means Committee that the bill would create major problems by outlawing numerous types of innocuous transactions. HR 2971 would prohibit the sale and public display of Social Security numbers, put new limits on the dissemination of those numbers by credit reporting agencies, and make it harder for businesses to deny services if customers refuse to provide their numbers. The ban applies to federal, state and local governments, as well as to the private sector. But the functions of prosecutors and police are exempted from the bill. Social Security numbers were created to track earnings for determining eligibility and benefit amounts under the Social Security System. Today, though, they’ve become the de facto national identification system — used to track down or identify people for a wide variety of legitimate business purposes, from combating fraud to locating missing persons. The bill would enforce its provisions with tough new criminal penalties that would generally make it a felony punishable by up to five years in prison to buy, sell or misuse a Social Security number. Only a few exceptions would be made for law enforcement, national security or public health, tax and research purposes, or with individual written consent. “This is a strong bipartisan bill that strikes an important balance between protecting Social Security numbers and preserving their essential uses,” Shaw said in a news release. “I am pleased it has moved forward so quickly, and my hope is that it will be voted on by the full House in the near future.” INTERNET THE IMPETUS The push for the bill comes amid a general tightening of the information spigot by the federal government in response to the rise of Internet-based data dissemination. During the last year, the U.S. Judicial Conference has adopted rules to keep personal information that’s traditionally been available in court files — including Social Security numbers, addresses and dates of birth — out of the public record. A similar issue is playing out in state court systems in Florida and elsewhere. The Florida Supreme Court is considering policies on how circuit court clerks should place records on the Internet. Some judges are concerned that unfettered online access to detailed court records could inadvertently make sensitive and confidential information available to anyone in the world with Internet access, including identity thieves. But opponents, while supportive of the bill’s overall intent, say its restrictions and penalties aren’t targeted well and go too far. They say the bill would make it difficult to identify or screen people by shutting off access to Social Security numbers. “As drafted, it would deny a cost-effective means for finding witnesses, lost children, deadbeat parents and heirs by restricting our ability to access the tools we need to locate them,” said Larry Sabbath, a Washington, D.C., lobbyist who represents the Alexandria, Va.-based National Council of Investigation and Security Services. Jean Mignolet, a licensed private investigator in Fort Lauderdale who has spearheaded his industry’s lobbying campaign against HR 2971, explained that investigators must precisely identify those they investigate. Particularly when someone has a common name, investigators must pore through a large amount of public information. Without access to Social Security numbers or other specific identifiers, they can’t be sure they are gathering information on the right individual. “We need access to do our jobs,” Mignolet said. WOULD BLOCK TRANSACTIONS Business interests also have weighed in against the bill. On July 20, the American Bankers Association, American Insurance Association, American Council of Life Insurers and the Securities Industry Association sent a joint letter of objection to House Ways and Means Chairman Rep. William M. Thomas, R-Calif. In their letter, the groups said the identify theft bill would create numerous problems. “Unfortunately, we believe that the bill may have the unintended consequence of restricting a wide variety of legitimate business activities that pose no danger,” the letter said. “Ironically, we remain concerned that HR 2971 will have the effect of actually limiting our ability to combat identity theft and fraud.” The letter cited several examples of innocuous transactions that would be blocked. Financial services companies traditionally buy and sell assets among themselves and with home mortgage companies. That practice would be illegal under the bill, the business groups argued, because such assets have Social Security numbers embedded in their files. In addition, it could be illegal for companies to transfer such personal information within their corporate families “notwithstanding the fact that such transfers of information help financial institutions efficiently service customer accounts,” the letter said. The business groups said the bill misses the mark because their members don’t make Social Security numbers accessible to the general public. “We believe that this legislation should be targeted at those entities at the heart of the problem, be they unregulated information brokers, those engaged in illegal pretext calling, or the like,” the letter said. But supporters of the bill say private investigators are part of the problem that needs to be addressed because they are not regulated well in some states. “Seven states do not license private investigators, and in some states licensing is merely a pro forma activity,” the Shaw subcommittee’s talking points say. Similarly, the bill’s supporters argue that those who sell Social Security-linked information often don’t track how that information is subsequently used. Oversight “largely depends upon sellers auditing their customers,” the talking points say. The bill would ensure that Social Security numbers are released “only for essential purposes.” Nevertheless, critics of the bill say it isn’t necessary because Congress already has established adequate safeguards against the misuse of Social Security numbers. The Gramm-Leach-Bliley Act of 1999 designated Social Security numbers to be “nonpublic personal information” and established regulatory protection standards governing their use. Those who access such data, including private investigators, must comply with those regulations. “If [private investigators] misuse it, you’ve got their license,” Morell said. “We are licensing them to do investigations, and access to this identifying information is an invaluable tool.” Jean Mignolet said private investigators play an important role in preventing fraud and identity theft before it occurs. “If this passes, it will put an incredible burden on both us and law enforcement,” he said.

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