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The Honorable Orrin Hatch 104 Hart Senate Office Building United States Senate Washington, DC 20510

cc: Sen. Mike Lee, Reps. Rob Bishop, Jason Chaffetz and Jim Matheson

March 19, 2013

Dear Senator Hatch: The undersigned genealogy and privacy groups join together to urge you to take a leadership role on two issues concerning technology, privacy, and genealogical research: updating the laws and regulations governing the use of the "Death Master File" of the Social Security Administration and its commercially-available Social Security Death Index (SSDI) and updating the Electronic Communications Privacy Act (ECPA). We write to you in recognition of your contributions to facilitating genealogical research, your commitment to both law enforcement and privacy, and your interest in promoting development of the technology sector. Genealogical Research and the Internet As you have long noted, "Utah is a leader in the hi-tech and information industries, and is home to both producers and users of information and database collections. Utah is blessed with worldclass scientists and scholars, genealogists, and computer and hi-tech companies that create new information, organize information, and use information–often using information created by others in innovative ways to create new information or to make it more easily or inexpensively accessible."1 One field making remarkable use of information technology is genealogy. As you well know, genealogy is one of America's favorite pastimes2 and of disproportionately great significance to 1 Sen. Hatch, Database Antipiracy Legislation (Senate - January 19, 1999) http://www.arl.org/arldocs/pp/ppcopyright/copyresources/dbaseleg/106congress/hatchdb.pdf 2 "Researching ancestry is a very important component of identity. And with more than 80 million Americans actively searching for more information about their ancestors, family history research has become our nation's second-most popular hobby." http://hatch.senate.gov/public/index.cfm/family-history

Utah. And like so much else, genealogical research has gone high tech, relying increasingly on the power and convenience of the Internet. For example, last year, more than 160,000 volunteers, working online, indexed the entire 1940 U.S. Census in just a few months. 3 Genealogy is the second most popular online search topic, with 84 million people worldwide spending between $1,000 to $18,000 annually on online genealogical research. Those researching genealogy online are one of the fastest growing demographic groups. 4 Recognizing these trends, you have worked to make more family history records available online.5 You have long promoted the life-saving importance of genealogy for medical treatment and medical research.6 One of the reasons you cited for your work to resolve the “orphan works” copyright issue is that genealogists especially rely on older materials that become unavailable as orphan works.7 In these and many other ways, you have been Congress’ most ardent and effective supporter of genealogical research. Privacy and the SSDI The Social Security Death Index has long been an important resource for genealogical research. The SSDI is also a valuable anti-fraud tool 8 and is an important tool for medical research. 9 3 http://blog.eogn.com/eastmans_online_genealogy/2012/08/familysearch-north-americanindexing-volunteers-invited-to-join-new-us-immigration-naturalization-co.html 4 “Most visitors to genealogy sites were reportedly white women, 55 and older, searching the Internet from home--a demographic projected to grow 36 percent by 2020, three times as fast as any other group.” http://www.businessweek.com/articles/2012-09-20/ancestry-dot-coms-genealogicaljuggernaut 5 "This legislation will allow state and local governments to make more historic documents — birth, death and marriage certificates, among many others — available to researchers and citizens. It will also provide employment opportunities in communities across the country. . . Family history and genealogical research is one of the most common enterprises people engage in online, and literally millions of Americans continue to use various family history resources every day," commenting on the “Preserving the American Historical Record Act" http://www.deseretnews.com/article/700025804/Hatch-wants-to-create-grants-to-preserverecords-for-genealogists.html 6 2001 Dear Colleague to designate October as Family History Month http://genealogy.about.com/library/bl_fhmresolution.htm

7 "[With] the advent of digital and Internet distribution models for copyrighted works, it has become more difficult to attach such copyright information to the copyrighted material itself." http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28336/html/CHRG-109shrg28336.htm 8 9 http://waysandmeans.house.gov/uploadedfiles/pratt_testimony202ss.pdf http://www.nytimes.com/2012/10/09/us/social-security-death-record-limits-hinder-

However, abuse of the Internal Revenue Service Online Tax Refund process by identity thieves has sparked controversy. The Social Security Administration restricted access to some data in the Death Master File (DMF) and the Social Security Death Index (SSDI). 10 While some supported the adopted changes in the name of curtailing ID theft, they actually enable identity fraud, threaten the unclaimed persons initiative,11 and hinder medical research.12 In addition, there are many legitimate genealogical uses that require immediate access. Judy Russell, “The Legal Genealogist,” explains, “there are genealogists who do need that kind of access–genealogists who work to identify military remains, who work with coroners’ offices and medical examiners, who are forensic genealogists, heir researchers, and those researching individual genetically-inherited diseases.” 13 We support working for a balanced approach that addresses the ID theft issue and other problems associated with the SSDI without curtailing public access to the SSDI database. Specifically:
● Congress should require the IRS to use the “Death Master File” as a filter against fraudulent tax refund claims by flagging for further scrutiny income tax refunds for DMF matches.14 ● Congress should direct the Social Security Administration to improve the way it collects and verifies information in the DMF to reduce the number of false positives (living people reported as deceased). 15 ● Congress should fully consider all of the legitimate uses of the DMF and SSDI before limiting or delaying access to the data.

We believe that these approaches would better serve the interests of fraud prevention, privacy and security than shutting off the DMF entirely.

researchers.html 10 11 http://www.ntis.gov/pdf/import-change-dmf.pdf http://www.unclaimedpersons.org.

12 http://www.nytimes.com/2012/10/09/us/social-security-death-record-limits-hinderresearchers.html 13 http://www.legalgenealogist.com/blog/2013/02/25/now-there-are-three/

14 http://www.fgs.org/rpac/wp-content/uploads/2012/04/rpac-statement-for-record-senatefinance-final-20-mar.pdf 15 http://waysandmeans.house.gov/news/documentsingle.aspx?DocumentID=276834

Privacy Protection for Genealogical Research Data Increasingly, genealogical data is being stored in the Internet “cloud,” where privacy and security of data are crucial.16 Genealogical standards have evolved to keep pace with changing technology, with educational efforts to promote the verification of information and with the development of “privacy filters” for genealogy websites to protect personal information of living and recently deceased persons. In light of changing technology and practices, government policy needs to change as well. However, the law has not kept pace with technology. The major federal law setting privacy standards for electronic data, the Electronic Communications Privacy Act, was adopted in 1986, and has not had a major privacy update since then. ECPA is especially important for cloud computing and electronic storage, including the storage of genealogical information and other subscriber and user data. When ECPA was passed, genealogical research relied on local repositories of paper information such as the ancient bound volumes found in dusty basements of county courthouses. Now, however, much of this information–and much more–is stored on the Internet, and that is where genealogy researchers are, using Internet search engines to conduct research, emailing relatives and strangers alike with personal questions, sharing sensitive data intended only for family members, and storing their private work product in "the cloud." All of these communications– search queries and search results, emails, private documents stored in the cloud and shared only with a few family members–fall under ECPA. While the gaps in ECPA affect all Americans, they especially impact genealogy researchers who spend so much time online. The Records Preservation and Access Committee (RPAC)–a joint committee of The Federation of Genealogical Societies (FGS), The National Genealogical Society (NGS) and the International Association of Jewish Genealogical Societies (IAJGS) with participation by a number of other genealogical organizations–has joined the Digital Due Process (DDP) coalition and urges you to support ECPA reform as called for in the DDP principles. Reform of ECPA along these lines would help create trust in the use of the Internet for many desirable purposes, including genealogical research. In conclusion, the competing demands of privacy, transparency, and law enforcement access to information are not new, but changes in technology–such as cloud computing–require an updating of ECPA and the use of the SSDI.

16 http://blog.eogn.com/eastmans_online_genealo gy/2013/03/-what-is-the-cloud-and-whyshould-i-care-part-1.html

Please feel free to contact Bradley Jansen (bjansen@financialprivacy.org) with the Center for Financial Privacy and Human Rights or Fred Moss (access@fgs.org) with the Federation of Genealogical Societies with any questions. Sincerely, American Library Association Association of Research Libraries Center for Democracy and Technology Center for Financial Privacy and Human Rights Competitive Enterprise Institute Council for Citizens Against Government Waste The Distributed Computing Industry Association (DCIA) Dick Eastman, Eastman's Online Genealogy Newsletter Electronic Frontier Foundation Federation of Genealogical Societies Golden Frog Janet Hovorka, President, Utah Genealogical Society Liberty Coalition Earl A Mott, CEO, Real-Time Collaboration, Inc. Records Preservation and Access Committee TechFreedom Kathryn A. Serkes & Mark Schiller, MD, Co-Founders, Doctor Patient Medical Association SpiderOak