EPIC - Tankersley v. Almand

Tankersley v. Almand

Concerning Whether Maryland's Policy of Revoking the Licenses of Attorneys Who Refuse to Submit Their Social Security Numbers to the Client Protection Fund Violates the Federal Privacy Act

Background |
EPIC's Interest in Tankersley |
Legal Documents |
News Reports

Background

This case is the most recent in a series of challenges brought by Maryland Attorneys following a new rule adopted by the Maryland Rules Committee in 2014. Specifically, all Maryland-barred attorneys must "provide to the treasurer of the [Client Protection Fund] the attorney's Social Security number" under Rule 16-811.5 and the Fund Trustees are required to submit the names of all non-complying attorneys to the Court of Appeals. Under Rule 16-811.6(d), the Court of Appeals "shall enter a Temporary Suspension Order prohibiting each of [the named lawyers] from practicing law in the State."

The Plaintiff in this case, Mr. Tankersley, has been licensed to practice law in Maryland since 1986. Since that time, he remained a member in good standing of the bar of Maryland. However, after he refused to provide his Social Security number to the Client Protection Fund because of privacy and identity theft concerns, his license was suspended from practicing law in Maryland. Prior to his suspension, Mr. Tankersley wrote to the Fund to express his concerns and to argue that suspending his license due to his refusal to provide his Social Security number would violate the Privacy Act. After his license was suspended on March 20, 2014, he brought suit on May 22, 2014.

The Complaint alleges that the suspension of his license violated the Federal Privacy Act, 5 U.S.C. § 552a and the Supremacy Clause of the United States Constitution, U.S. Const. art. VI. The facts and legal claims in this case are "essentially identical" to another recent case, Greidinger v. Almand, 30 F. Supp. 3d 413 (D. Md. 2014). The Privacy Act claim is based on Section 7(a)(1), which makes it "unlawful for any Federal, State, or local government agency to deny any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security number." 5 U.S.C. § 552(a) (Note). The Supremecy Clause claim is based on the principle that federal law has primacy over conflicting state law, and that the Maryland Rules at issue conflict with the Federal Privacy Act and are therefore invalid.

The lower court rejected these two claims in both Greidinger and Tankersley. First, the court found that Section 7(a)(1) of the Privacy Act does not apply to "any disclosure which is required by Federal Statute" or "the disclosure of a social security number to any federal, state, or local agency maintaining a system of records in existence and operating before January 1, 1975." 5 U.S.C. § 552(a) (Note). This means that "any federal statute which mandates the disclosure of Social Security numbers can implicitly or expressly override the protections afforded by the Federal Privacy Act." Greidinger, 30 F. Supp. 3d at 421. The court found that, in this case, the Privacy Act protections are superseded by the Welfare Reform Act, 42 U.S.C. § 666, and the Tax Reform Act of 1976, 42 U.S. C. § 405. Specifically, the Welfare Reform Act requires states to enact procedures to obtain the social security numbers of individuals holding "professional and occupational licenses" for the purpose of enforcing child support payments. The Tax Reform Act provides that any State "may, in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law . . . utilize the social security account numbers" for identification purposes.

The case is now on appeal to the Fourth Circuit.

EPIC's Interest in Tankersley

EPIC has an interest in enforcing Privacy Act protections and in minimizing the collection and sharing of sensitive personal information, especially Social Security numbers, in order to protect privacy and limit identity theft. EPIC has previously filed amicus briefs in a number of cases concerning the collection and sharing of SSNs:

In Greidinger v. Davis, 988 F.2d 1344 (4th Cir. 1993), EPIC Executive Director Marc Rotenberg argued that a Virginia State Board of Elections requirement requiring disclosure of a SSN in order to register to vote posed a significant threat to personal privacy and impermissibly infringed on citizens’ constitutional right to vote. The Fourth Circuit accepted the argument and struck down Virginia's SSN disclosure requirement.

In Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010), EPIC argued on behalf of Betty Ostergren, a privacy advocate who had published a number of Virginia public records documents containing SSNs on her website in order to pressure the legislature to address the issue. The Fourth Circuit upheld Ms. Ostergren’s online publication and found that applying Virginia’s Personal Information Privacy Act (PIPA) to her protected speech was unconstitutional. Virginia also invested $7 million to redact SSNs from its public records and instituted other reforms to ensure that SSNs would not become publicly available.