Today is the effective date for the Final Rule implementing the statutory mandate found in Section 203 of the Bipartisan Budget Act of 2013 directing the Secretary of Commerce to develop a certification program limiting access to and the content of the Social Security Administration’s Death Master File.
To get to this point this project has required very nearly a full three year effort since the passage of this act in December of 2013.
I wish to start by thanking the National Technical Information Service (NTIS) of the Department of Commerce for the exemplary manner in which they have sought to craft regulations implementing their statutory mandate, for conducting the most rigorous review of the legitimate uses of the Death Master File (DMF) conducted thus far, and for providing stakeholders a forum in which to describe the impact of and offer suggestions to improve various approaches that could be taken. Originally published in the Federal Register on the 1st of June, 2016 at 81 Fed. Reg. 34891, the pdf file of the regulation is found at: https://www.gpo.gov/fdsys/pkg/FR-2016-06-01/pdf/2016-12479.pdf . They have provided a commendable demonstration of what a robust notice and comment process looks like, an example truly worthy of emulation.
NTIS acknowledges numerous suggestions found in the submissions made by over sixty legitimate historical users of the DMF but found themselves limited by the requirement that they implement the statute as written. Virtually all suggestions for improving the DMF or minimizing the adverse impact upon legitimate users had to be rejected because the statutory language left the Secretary of Commerce little discretion to do otherwise. Contributor’s comments were made a part of the record found at: https://www.regulations.gov/docketBrowser?rpp=25&po=25&dct=PS&D=DOC-2014-0001
Would that an opportunity to provide the user community an opportunity to provide input had been provided before the statutory language was carved in stone! Although the rationale provided to support limiting access to the DMF was the prevention of identity theft, these measures may well make us even more vulnerable.
Legislators should be assured that the genealogical community is prepared to be supportive of measures which actually protect us from identity theft. We fervently wish that we could believe that the measures mandated by Section 203 of the Bipartisan Budget Act of 2013 limiting access and content of the Social Security Administration’s Death Master File would have that effect. Our analysis has suggested otherwise.
What is the documented impact?
- Clearly many legitimate historical users of the DMF are simply denied access to this resource (including medical and economic researchers.)
- The cost and burden on those authorized access to the Limited Access DMF has been significantly increased. A good example of the advice counsel are now having to give to their clients seeking to use the DMF is found at: http://www.jdsupra.com/legalnews/cybersecurity-certifications-now-48385/
- Some certified users find that the Limited Access DMF no longer serves their needs because of questionable redactions of data elements and limitations in functionality found in the available search engines.
- When combined with the decision made in 2011 to redact some state provided data from the publically available DMF, we may be under-reporting up to one million deaths per year, thus further undermining the comprehensiveness of the DMF of the future.
- Once the IRS started actually using the DMF in December of 2011 to flag suspicious tax refund claims, they were already intercepting any fraudulent returns the thieves could have facilitated by misusing the DMF without burdening legitimate users.
I have long asserted that this Certification program does not belong in permanent legislation. https://www.regulations.gov/document?D=DOC-2014-0001-0093 .
As the right lessons are learned from this effort, let us hope that legislators chose to revisit the issue of whether this represents an enduring solution to the issues surrounding the proper role and future of death records such as the Death Master File.
Surely we can do better!
Posted by Fred Moss