retain employment by willfully concealing or falsifying their identity for the purpose of obtaining that employment, and if the present law is not sufficient to do that, which I understood that it was, but I do not pretend to be an expert on that, if it is not sufficient, by all means I should say it should be strengthened, but it still does not seem to me that there is a need to add something to the Social Security Act to provide for a penalty in the case of a person who seeks employment in a defense industry and who, in doing so, uses a card that has a name other than his own. Excuse me, Mr. Sourwine, perhaps I can make that more clear if I say let us suppose that he never came to social security and applied for a card using a false identity. He came to social security and got a card using his true name and his true identity. We never had anything to do with issuing a card to him under some other name, but he borrowed a card belonging to someone else and presented it to this employer. Now, there is, I would think, a crime—at least it would be a crime if he were seeking employment in a defense Mr. SOURWINE. Of course, you have put together hypothetical circumstances which do constitute an offense under existing law, but what this bill is trying to reach is the type of instance in which existing law does not prevent the implicity involved in concealing the true identity. That is the case of a man that has a social security card which is lawfully obtained, it is in a name other than his own, and he uses it to secure employment. We cannot have a statute requiring every prospective employer to ask a man about his true name, the name he was born under, name changes, and so forth. Many employers will ask this question, but Congress cannot require employers to ask it. You do not think that Congress has the constitutional power to require that every person who applies for a job in the United States in this kind of a firm must disclose his true identity, do you? Mr. DAVID. I would not think that Congress did have that in the across-the-board way that I think you are saying. Mr. SOURWINE. Then you are quite right, it does not. This would fall within the police powers of the States and would not be a Federal matter. But, Congress does have the right to enact a rule with respect to the use of social security cards. This provision in section 1005 is intended to utilize that right in such a way as to reach every individual who would be using a social security card in a name other than his own true name, and require him, whether or not asked by his employer or prospective employer, to disclose his true identity. That is all it purports to do. The purpose would serve security and, as I understand it, the only objection that you gentlemen make is not to the language involved, but to having it in the social security statute, is that right? Mr. DAVID. Mr. Chairman, it seems to me that we are down to a point where we have eliminated most of the rest of the points on which we are pretty well in agreement, and we are down to this point, that we are saying, by all means let us have all the protection that is needed, particularly in the case of employment in defense industries and with defense contractors, and insofar as that may be needed or helpful in such a situation to make it a misdemeanor to present a social security card that does not have the man's true identity shown on it, and where he conceals his identity for the purpose of obtaining employment, that there should, by all means, be adequate protection for our society against that being done. And it does not seem to us that it is pertinent to the social security program and the Social Security Act, and that it would be reasonable, we would say, to write into the criminal provisions of the law whatever additional penalties might be desirable to cover the case where the individual applies for this kind of job and uses a social security card with the purpose of obtaining that employment which he otherwise would not be able to get. Mr. SOURWINE. In other words, you do not object to the provision being written into the law if it is written into any part of the law except the Social Security Act? Mr. DAVID. I think that we are down to that-if it is true that you need further provisions in the law, and I am not pretending to be an expert on that-if it is Mr. SOURWINE. If the Congress then decides that it should give this protection by enacting such a law and if the Congress decides that the best place to put it is in the Social Security Act; that is, in title 42 of the United States Code, since you have said that enactment of the bill will not cause you any problems, would you still resist it? Mr. DAVID. I think that it has come down to a question of whether we would like to see this already very long and complicated act added to by the inclusion of something that has no pertinence to social security. Mr. SOURWINE. Well, the final decision with respect to that matter rests with the Congress, does it not? Mr. DAVID. Yes. Mr. SOURWINE. Mr. Chairman, may I turn briefly to several other portions of the law? I have perhaps 5 minutes here. Does the Social Security Administration, sir, have a personal security unit? Mr. DAVID. The Social Security Administration and the Department of HEW do have a-I think we call it a Director of Security. Yes. Mr. SOURWINE. The social security employees, so far as personnel security is concerned, are handled by the HEW Security Division? Mr. DAVID. Yes, sir. Mr. SOURWINE. You have no separate personnel security division in the Social Security Administration? Mr. DAVID. No, sir. Mr. SOURWINE. Now, if you look at page 37, sir, section 434, just so the record will be clear on that point, would enactment of that five-line section have any effect upon social security cards or the use or issuance thereof? Mr. DAVID. Excuse me, Mr. Sourwine. This is page 37, and what line? Mr. SOURWINE. It is section 434, and it begins on line 20 and goes through line 24. Mr. DAVID. Oh, yes. I should think, Mr. Sourwine, that that would not be related to social security because there is nothing in the social security card which identifies a person as bearing allegiance to the United States. Mr. SOURWINE. That's the whole point, an alien may have one, may he not? Mr. DAVID. An alien may indeed have one. Mr. SOURWINE. Yes. Now, if you look at page 41, beginning on line 18, would section 503 have an adverse effect on the confidentiality of social security if it were enacted? Mr. DAVID. On a quick reading, Mr. Sourwine, I cannot see how this would constitute any problem for us. Mr. SOURWINE. The confidentiality of social security today is protected by your basic law, is it not? Mr. DAVID. Yes, sir. Mr. SOURWINE. There is nothing in here that would repeal or amend that law or be in such direct conflict with it as to require instructions that would in any way detract from the protection that that law now gives, is that true? Mr. DAVID. I do not want to go on record as having given a legal opinion, Mr. Sourwine, on this provision, without having studied it and having consulted with others about it. I can only say that as I read it very quickly here it does not seem to me that it would be any problem for us in terms of conflicting with our basic law on confidentiality of social security information. Mr. SOURWINE. Mr. Chairman, may I ask that this particular inquiry be referred to the Legal Division of the Social Security Administration when you get the transcript for correction, and that if that point is not covered in the prepared written statement which you have indicated you intend to submit Mr. DAVID. Yes. Mr. SOURWINE. That an answer be submitted to go in the record at this point? Mr. DAVID. Yes, sir, we will do that. (The information requested follows:) DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, Hon. JAMES O. EASTLAND, DEAR MR. CHAIRMAN: You will recall that during my testimony before your subcommittee on March 21 on S. 2988, the Internal Security Act of 1968, question was raised about the possible effect of section 503 of the bill on the confidentiality of social security information. Enclosed is the answer to that question that I agreed to submit for the record. Sincerely yours, ALVIN M. DAVID, Assistant Commissioner for Program Evaluation and Planning. [Enclosure] EFFECT OF SECTION 503 ON THE CONFIDENTIALITY OF SOCIAL SECURITY INFORMATION Further consideration has been given to the inquiry whether enactment of section 503 of S. 2988 would have an adverse effect on the confidentiality of social security information. On the one hand, section 1106 of the Social Security Act (42 U.S.C., 1306) and regulations issued pursuant thereto (20 C.F.R. 401.1 et seq.) exempt from disclosure information in social security records. On the other hand, section 503 of S. 2988 provides that no witness may be disciplined on account of his giving any testimony before any Congressional committee on any matter pending therein, or 90-550-68-pt. 3- -3 disclosing "any subversive activity or wrong-doing" within any department or agency in the executive branch of the Government under penalty as provided in the section for invoking any disciplinary action. Section 503 makes no exemption for the mandatory restriction on unauthorized disclosure of social security information provided in the social security law. To this extent there would be, it seems, a conflict between this section and the present provisions of the social security law. Thus, for example, if an employee of the Social Security Administration in any proceeding before a Congressional committee discloses any kind of personal data from social security records relative to the reputation or conduct of a social security account number holder, this would constitute a violation of the present social security law and regulation under which the Administration would be obliged to invoke a penalty therefor. However, we are advised by the Office of General Counsel of the Department of Health, Education, and Welfare that section 503 would preclude the Administration from invoking such a penalty. When the social security program was first set up, there was considerable concern on the part of individuals, employers, and organizations that personal data collected to administer the program could be used to an individual's detriment in a matter wholly unrelated to social security. In response to this widespread concern, an effort was made to assure that social security data thus collected would be kept confidential so as to protect the interests of employers and employees who were called upon to furnish such information. Specifically, on June 15, 1937 through the issuance of Regulation No. 1 (20 C.F.R. 401.1) the Social Security Board gave assurances to the public that social security records would be kept confidential. In 1939, Congress formally recognized the need for such safeguards by adding a provision to the law-section 1106 (42 U.S.C. 1306). This section provides that no disclosure of any tax return or portion of any return filed with the Commissioner of Internal Revenue which has been referred to the Secretary of Health, Education, and Welfare or of any file, record, report, or other paper, or any information, obtained at any time by the Secretary or any other officer or employee of the Department of Health, Education, and Welfare in the course of discharging the duties of the Secretary, shall be made except as the Secretary may by regulation prescribe; and that any person who violates any provision of the section shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not exceeding $1,000, or by imprisonment not exceeding one year, or both. The efficient and economic administration of the social security program depends absolutely upon obtaining accurate personal information from both workers and employers. Without the assurance that we can rely on the high degree of accuracy of information received from workers and employers that derives in part from their confidence in our pledge of confidentiality, our operation would necessarily be significantly hampered with substantially more people required to verify the accuracy of data. We are, therefore, vitally concerned that the confidentiality of social security records be maintained. Mr. SOURWINE. Now, if you will turn to page 47 you will see line 5, that is where title 6 begins, title 6 is the title which would create a new Federal Personnel Security Administration. Have you considered whether the enactment of this would have any adverse impact on the Social Security Board, or would you rather leave that for discretion in the written report that you plan to file? Mr. DAVID. Mr. Sourwine, I think it would be probably better for me to leave that for the report because, again, I cannot see anything as I read it over quickly here, but I would not want to be in the position of having given you a legal opinion on this. Senator DODD. I do not think we asked you to do that. Mr. SOURWINE. I would say, Mr. Chairman, for the record, I did not mean to ask for a legal opinion on the question. I did not mean to ask for a legal opinion, and the question I tried to propound so as to indicate a recognition of the fact that this was a policy matter which might better be dealt with in the written report than proposed to you. Mr. DAVID. Yes. Mr. SOURWINE. I have no more questions. Senator DODD. Very well. Mr. SOURWINE. I think that covers all the segments of the law for that particular impasse. Senator DODD. We thank you gentlemen for coming. Mr. DAVID. Thank you, Mr. Chairman, and Mr. Sourwine. Senator DODD. Ross Flanagan? We have been swearing all of the witneses, so do you mind being sworn, too, that the testimony you give before this committee will be the truth, the whole truth, and nothing but the truth? Mr. FLANAGAN. Senator Dodd, I am not sure I understand what is being asked of me here. This is my first experience before a Government committee, and as you know, Friends are not in the habit of swearing. Senator DODD. Well, that is all right. You do not have to if you do not want to. You can affirm. It is simply for the record here, and it is a policy of this subcommittee to administer oaths as to the truth of your testimony. Mr. FLANAGAN. I have also been advised by my friend, Lawrence Speiser, of the American Civil Liberties Union, that normally at committee hearings you are seeking opinion and not fact, and, therefore, unlike court procedure swearing to one's testimony is not in good order. I wonder if you could advise me about this, because, as I say, I am not familiar with the procedure and I want to cooperate with the com mittee. Mr. SOURWINE. Could I be heard on that point, Mr. Chairman? Mr. SOURWINE. Respect fully submitted, that the question of proper committee procedure is for the committee to determine. On the point of the oath, it has been customary that when a person, because of personal feelings or religion, is not permitted to take an oath, we are perfectly willing to accept an affirmation, but it is very difficult to get much testimony from a witness without some statements of fact. It has to be the policy of the committee to ask witnesses at all of these hearings to either swear or affirm their intention to tell the truth. Mr. FLANAGAN. I certainly wish to cooperate with the committee in offering testimony here today. I simply wish to make clear that Friends do not have one standard of truth telling for Government committees and another for our everyday experience. Senator DODD. I do not think anyone has suggested anything like that to you. Mr. FLANAGAN. Well, as long as we are not being asked to set a precedent which is unfamiliar to committee procedure, I am certainly happy to cooperate by saying that I affirm my willingness to speak in good faith, and trust, and forthrightness to this committee. Senator DODD. OK. That is all right. TESTIMONY OF ROSS FLANAGAN FOR THE FRIENDS COMMITTEE ON NATIONAL LEGISLATION; ACCOMPANIED BY FRANCES NEELY, ASSOCIATE SECRETARY OF THE LEGISLATION GROUP Mr. FLANAGAN. Thank you. Senator DODD. Incidentally, the Senate sits in 25 minutes. Go right ahead. |