The Bipartisan Budget Bill of 2013 contains an obscure provision—Section 203—titled Restriction on Access to the Death Master File, which was promoted as a safeguard against identity theft. The legislation, which blocks access for a number of years to vital records that have been publically available for decades, does little to achieve its goal. It does, however, threaten to undermine trust in the U.S. Congress because of the process through which it was enacted. While identity theft is a serious problem, it is curious why such a harsh measure as the enactment of Section 203 was taken because only a small portion of it is traceable to the Death Master File (DMF). Especially given that the 113th Congress was infamous for its inaction, one can only wonder whether, trying to project competence, the 113th Congress ignored legitimate efforts to address identity theft by blaming tax return fraud not on the thieves but on the DMF. The prevention of public access to the DMF, long a legitimate source of research, is a hardship to many.
Undoubtedly, in these times, privacy is imperiled. Regrettably, public confidence in the government’s appreciation for privacy was shattered with Edward Snowden’s 2013 exposures (which still continue) revealing the extent to which the government, through the National Security Agency (NSA), has been spying on us for years. This extralegal conduct extended to both private e-mails and phone calls.
Even apart from Snowden’s dramatic exposures, privacy was already in jeopardy. Loss of an expectation of privacy in Social Security Numbers (SSNs), for instance, is so assumed that many courts have long held that the tort standard of “reasonable expectation of privacy” no longer applies to these numbers.
This article tells the story of the enactment of the bill containing Section 203. It also provides context for Congress’s widespread practice of inserting substantive provisions into appropriations bills, and argues that this practice is inappropriate and counterproductive. Enacted in haste, at the end of a lengthy and historically contentious legislative session plagued by threats of an unfunded government, Section 203 was slipped into a bill about a wholly different topic—“keeping the government open and functioning”—without input from key legislators or stakeholders. Hence, its difficulties were foreseeable.
Part II of this piece offers background about the DMF and its uses, early warnings regarding security problems, and sources of identity theft other than the DMF. Part III uncovers the process of enacting Section 203, the congressional opposition to it, and the adverse consequences of Section 203’s enactment. The article concludes that Section 203’s enactment, as accomplished by bypassing congressional rules, was both misguided and a diversion from correcting profound governmental failures involving long- term fraudulent use of personal information. This enactment process threatens to exacerbate the public’s profound lack of confidence in Congress—the only branch created to be democratic—and to erode core democratic principles. Part VI offers theories, based in both law and equity, that challenge the current process to revive some confidence in government.