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Taking a Stand in Genealogyland

by Kenneth H. Ryesky January 20th, 2014 3:37 am

"Just how tone deaf is the genealogical community?" asks Brad in his post of 16 January 2014, imploring the leadership in Genealogyland to take a stand against the misuse of public information for nefarious if not lethal purposes. My own posting of 7 January 2014 mentions a loophole in the latest Federal budget agreement's restriction upon Death Master File (SSDI) access; various members of the genealogical community are now pondering the prospects of at least some genealogists obtaining Commerce Department certification for the early access loophole.

As this posting is being written, the Commerce Department is working on its proposed regulations for the DMF early access program; these, we are assured, will soon appear in the Federal Register for public comment.

Many existing professional qualifications are accepted as valid credentials for various purposes by various governmental agencies. The Internal Revenue Service's Office of Professional Responsibility, for example, accepts bar admission or CPA certification as a valid credential for representing taxpayers in matters before the agency. Many government agencies, Federal and state, accept the Certified Professional Contracts Manager or the now superseded but grandfathered Certified Purchasing Manager designation as a substitute for some qualifying experience in procurement and acquisition jobs (my own C.P.C.M. and C.P.M. certificates gave me a fair degree of career mobility within the Department of Defense when I needed it, but lapsed after I transitioned from DoD to the IRS).

As with many other affinity groups, genealogists have elevated themselves to professional status through the use of the certification process. Now that Congress has tasked the Department of Commerce with overseeing a process for early DMF access certification, genealogists are pondering how their own certification credentials might be used to bootstrap their way to the coveted Commerce Department approval.

If professional credentials such as the Certified Genealogist title are to be accepted by the people in Commerce, then the CGs will need to clearly and visibly build confidentiality and ethics into their own certification program. Even more basic is the need to make the criteria for CG certification, including matters of ethics and confidentiality, open and transparent.

Which all brings us back to taking a stand in Genealogyland.


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Genealogical Access v. 2nd Amd?

by Bradley Jansen January 16th, 2014 4:19 pm

Why must the genealogical community go out of its way to pick fights and create enemies?

The current issue of Virginia restricting records access as an intended consequence of a law to protect the privacy of law abiding Virginians was brought to my attention by my colleague, the Legal Genealogist, Judy Russell in her blog post, "Virginia call to arms."  In it, she explains:

The purpose of S. 1335, now Chapter 659 of the 2013 Acts of Assembly of Virginia, was to protect the privacy of those who have applied for and received permits to carry concealed weapons. The fiscal statement accompanying the bill simply said that it “prohibits the clerk of a circuit court who issued a concealed handgun permit from disclosing any applicant information” and that it was “not expected to have any material fiscal impact on the court system.”

But that the law of unintended consequences chimed in:

As a result of Chapter 659, there’s been a dramatic change at the Library of Virginia, Virginia’s fabulous state archives-and-library in Richmond, where — until this law was passed — you could simply pull a reel of microfilm out of a drawer and immerse yourself in the minutia of 18th, 19th and early 20th century court records.

But because of this law, the court record books and the index rolls to those record books were pulled from the accessible microfilm. And not just a few records. At last count, there were more than 220 rolls of microfilm including court order books, indexes of court order books, indexes to court cases that are affected. At least 135 of those reels contain nothing but records that are more than 100 years old.

So, we know two things to sum up: there is majority support to protect the privacy of concealed carry weapons permit applications and that the lack of any time constraint in the new law forces University of Virginia and state employees to look up information for records access on historical records that used to have open access.

Certainly, reasonable people could come to an understanding to fix this problem.  But no.  The "fix" currently proposed would protect the privacy of living people for only five years.  This arbitrary number seeming pulled out of thin air undermines the logic of the underlying law: "designed to keep criminals from getting information about people who own guns today" as Judy's follow up post explained.

Unless there is an argument can be proven that firearms owners don't keep any weapons for as long as five years in their lives or that they never stay at the same address for that long, the five year "fix" contravenes the rationale of the underlying law and should be rejected in the name of privacy as well as public safety.

As I explained when I testified before the 

Committee on Public Safety and the Judiciary, 
Council of the District of Columbia in 2008 in the wake of the DC v. Heller decision:

The registration process of the regulations create a dossier of citizens. Probably the greatest concern of the Center for Financial Privacy and Human Rights is the Big Brother surveillance concerns of the gun registration.
We know that broadly half of the data abuse problems come from internal abuses: either those who should have legitimate use of that data and abuse it or allow others who should not have such access to get use of our information. Identity fraud (popularly called identity theft) is a serious and growing problem . . .

The worst possible scenario would be for the city to institute a gun registration program that makes public a list of gun owners in the District who would then become targets for gun theft. Under such a scenario, we would then potentially increase the number of guns in the hands of criminals, increase crime and further victimize law-abiding, peaceable people.

The genealogical community, particularly the Virginia Genealogical Society, should demonstrate that they care more about potential gun victims, privacy concerns such as identity fraud and protecting Constitutionally-recognized rights more than they do insisting on five year access to information about living people.

Just how tone deaf is the genealogical community?

Now is the time for leadership: take a stand against gun violence and identity fraud and suggest a friendly amendment to the "fix" with a 100 year time delay which would not affect the majority of the concerned records, or at least a 74 year one to harmonize with privacy expectations set by the U.S. Census.

The goal of records access would advance more by outreach and involvement with broader coalitions of good government, records access, and whistleblowers than senselessly antagonizing the privacy community and needlessly making new enemies among the Second Amendment supporters.

EDIT:  While some in the genealogical community might pooh pooh the idea that making firearm permit applications public might encourage criminals to dust off records in libraries or jeopardize law-abiding firearms owners, they need to pull their head out of the sand.  A quick Google search shows that almost exactly a year ago, the New York Times ran a story "Newspaper Takes Down Map of Gun Permit Holders" spelling out exactly these real concerns.

This was not an isolated incident.  The same thing happened in Tennessee, Indiana, Ohio, Maine, Iowa, North Carolina, Missouri, previously in Virginia, and other places.  Seriously, law abiding gun owners don't like being outed like sexual predators.


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Congress is Plugging the Wrong Hole

by Kenneth H. Ryesky January 7th, 2014 1:41 am

[This piece originally appeared in The American Thinker on 20 December 2013]

Section 203 of the budget bill passed by Congress restricts access to a Social Security Administration database known as the Death Master File. The misguided passage of this restriction will carry negative side effects and fail to achieve its purpose.

Section 203 embargos the release of the DMF for three years. To be sure, early access to the DMF is provided to individuals having "a legitimate fraud prevention interest" or "a legitimate business purpose," but such individuals would need to run the gauntlet to achieve clearance under a not-yet-established Department of Commerce certification program. This would be unduly burdensome for, say, an estate executor who, on a one-time basis, needs to ascertain the heirs of a decedent.

The passage of this provision has been sold to the Congress as a miracle cure for a multi-billion dollar fraud scheme which collectively inflicts untold economic and psychological harm upon the victims: Tax fraud through identity theft.

For many years, fraudsters have filed with the Internal Revenue Service fabricated tax returns which use stolen identities as entries for the taxpayer and/or a claimed dependent, and which show a refund owed to the taxpayer, thereby defrauding the public fisc when the refund is issued (as it almost always has been). This has even been done by prison inmates, among other perpetuators. A Treasury Inspector General for Tax Administration (TIGTA) report confirms that stolen identity tax fraud entails millions of tax returns and billions of dollars. When the stolen identities are those of deceased individuals, particularly deceased young children, the collateral damage inflicted upon the surviving families is especially grievous.

And, due to some heedless inattention on the part of the IRS, one source of pilfered identities has been the DMF. The shutdown of DMF access accordingly has played quite well in the Congress, for it entails both a "feel good" sense that criminals will be stymied, and a seeming prospect to stanch a significant hemorrhaging of the public purse.

Social Security Numbers were originally intended to be just that, and not used for other purposes. But the uniqueness of the SSN made it convenient for use by the banking and financial industry, and by the taxation authorities. The Tax Reform Act of 1976 amended the Internal Revenue Code to require that the taxpayer's SSN be used as the identifier on a taxpayer's tax return.

During the 1970's, Ronald Perholtz, then the U.S. Postal Service's General Manager of Accounting, realized that the USPS was cutting many pension checks to deceased retirees, and that the Social Security Administration had data which could be used to prevent this and thereby save the Postal Service millions. Perholtz resigned his position, founded his own consulting firm, and proceeded to market his services to the government. Perholtz also developed another service for hire, verification that pensioners were in fact still among the living; his efforts culminated in a consent settlement with the Social Security Administration under which the SSA would publicly avail the DMF under the Freedom of Information Act. Other entrepreneurs have since taken to purchasing the DMF and purveying it as the Social Security Death Index. [Alas, Perholtz would later go to prison for contract fraud in his dealings with the government.].

The DMF/SSDI has since been used in many industries to prevent fraud. But fraud prevention is not the database's only useful purpose. Medical researchers, for example, need it for long-term projects to ascertain the living/deceased status of their subjects.

Genealogical researchers also use the DMF/SSDI extensively; such research is instrumental for purposes such as identifying and finding relatives of military or civilian casualties or crime victims, repatriating artwork stolen during the Nazi era, and building family health and medical history records (which the Surgeon General encourages Americans to do). Various groups having specialized family history research interests include Native Hawaiians who must prove their descent for certain housing guarantees, Ashkenazi Jewish women whose susceptibility to breast cancer requires knowledge of family breast cancer incidence in order to make appropriate healthcare decisions, and African-Americans who seek to reconnect descendants of siblings who were separated from one another during the slavery era.  These vital pursuits are now threatened because family research is not an activity for which early access to the DMF is specified.

The fraudster community eventually learned that one entity that did not verify its data with the DMF was the IRS. By 1998, when Alan Scott was convicted of filing 20 false income tax returns with the IRS using stolen identities, the IRS could no longer claim ignorance of the problem. Yet, more than a decade later, the IRS still fails to adequately assist the good faith tax return filers whose identity has been stolen by fraudsters.

The IRS's dismissive passivity in failing to verify the legitimacy of the filed returns has been quite ignominious. Imprimis, the tactic of falsely claiming someone else's child (often deceased) as a dependent can be readily detected up front because the information from the Form SS-5 Application for a Social Security Card requires that the parents' Social Security Numbers be provided for a child under the age of 18. This information is obviously in the government's database, and a red light should flash whenever the SSN of the taxpayer or the taxpayer's spouse does not jibe with that of the parent of the child when the child's SSN was first assigned.

Moreover, the IRS has assumed that the first tax return to be filed is the legitimate one, and the subsequently-filed return is that of the impostor. Such an assumption is questionable at best, inasmuch as the legitimate good faith tax return filer needs to assemble and compile complete and accurate information for the tax return, while, as amply demonstrated, the fraudster's return will suffice with randomly-concocted numbers which are not dependent upon any statements from banks, brokers, mortgage companies, or other third-party payers or payees.

A recent TIGTA report has found that the overwhelming majority of stolen identities used on tax returns are now those of living individuals. So cutting off access to the DMF may well protect deceased children, but will not stop identity theft tax fraud.

The vast databases of personal information required under ObamaCare can only provide greater opportunity to steal the identities of living persons; the ObamaCare incentives for employers to convert full-time employees to part-time (and strictly limit the hours for existing part-timers) in order to avoid having to provide healthcare insurance can only attenuate the employees' group identity and loyalty (and may even conjure up thoughts of vengeance against the employer); and the increased general costs of healthcare under ObamaCare can only provide increased pressure to steal an identity not to defraud the IRS, but to obtain healthcare itself.

Section 203 abridges access to a valuable resource which should be in the public domain; the provision was enacted to cover for the IRS's abject failure to protect the American people with proper data stewardship practices.

The Talmud recounts a colloquy where Rabbi Joseph says to Rabbi Abaye, "It is not the mouse that is the thief but the hole." Congress would have us (and perhaps themselves) believe that it has plugged a large hole in the Federal coffers. But the mice still forage and there are even larger holes for them to access the granary. Future GAO and TIGTA studies are likely to find substantial gaps between the savings projected by the proponents of Section 203 and the savings, if any, actually achieved by it.