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Framing a Discussion
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FRAMING A DISCUSSION ON
VITAL RECORDS ACCESS
3 May 2009
Massachusetts Genealogical Council
P.O. Box 5393
Cochituate, MA 01778-5393
Genealogists in the United States have faced increasing demands in the last thirty years that their access to vital records be curbed or cut off. These demands come from state legislatures or from state departments of vital statistics. Most recently, staff members and legislative aides have been concerned that providing open records access would have a negative impact on the financial well-being of other constituents through ID theft.
This paper directly addresses those concerns about ID theft and records access. The paper shows the historical arc of these concerns from their inception to the present. In addition, the paper examines actual research on ID theft, its genesis and cost. As the statistics show, birth certificates are not the major source of ID theft in the U.S. In fact, the latest U.S. government report on ID theft does not even list vital records in their list of the six top sources of ID theft.
The solid facts contained in this document, most from government sources, should alleviate the concerns of legislative staff when discussing vital records access and its anecdotal partner, ID theft.
Government-produced records are public records. Massachusetts enacted its first law ensuring that public records are open records in 1637. Giving up legal rights because others assume against all evidence that they are misused is not a sensible procedure in an open democratic society. The public good is improved when historians, genealogists, journalists, authors, investigators, and other citizens, have access to records. Genealogists owe it to themselves to advocate for open public records.
Table of Contents
The Massachusetts Genealogical Council was founded in 1980 by other genealogical and historical societies within the Commonwealth to function as an umbrella organization. It was given the tasks of monitoring legislative activity and of promoting education. MGC was immediately successfully in getting vital records legislation that made the law more understandable.
For the past 28 years, MGC had continued to monitor legislative activity. For the 2007-2008 legislative session alone, MGC officers and directors testified in front of two legislative committees in regards to proposed regulations and legislation.
The Massachusetts Genealogical Council is ready and willing to provide assistance or consultation to genealogists in other states who wish to create a statewide umbrella organization dedicated to monitoring legislative activity as it impacts genealogists and historians.
This report is the joint work of the following officers and was approved at a board meeting on 3 May 2009.
Barbara Jean Mathews, CG
Melinde Lutz Sanborn, FASG
Massachusetts Genealogical Council
P.O. Box 5393
Cochituate, MA 01778-5393
The discussion of identity theft and fraud is not a new discussion. It has taken place over the last four decades at the national level. This discussion can be divided into two parts. One part involves fraud related to government services. The second part involves financial fraud in the private sector.
For nearly 30 years, U.S. government reports had discussed birth certificates as breeder documents used to perpetrate identity fraud. The concern among the general population about breeder documents stems from this discussion. It should be noted, however, that the fraud researched for those 30 years had to do with fraudulent practices for immigration, naturalization, work permits, social security and social service benefits.
These early reports did not discuss the escalating financial identity theft making headlines more recently. This is an important distinction to remember. As we shall see later, the overwhelming majority of financial fraud cases do not involve vital records. The terms "breeder document" and "birth certificate" are not used in the most recent Federal reports.
In 1976, the Federal Advisory Committee on False Identification (FACFI) of the Justice Department pointed out that false identification was a serious national problem. The U.S. Public Health Service recommended remedy was its "Model State Vital Statistics Act" to promote standards and procedures for restricted access to vital records through state legislation. The model act was promulgated in 1977.
In 1984 the Task Force on Criminal Implications of False Identification, sponsored by Laws At Work (LAW), a national citizen's association interested in law enforcement issues, endorsed a broad range of proposed actions, including a national review of birth certificate systems and practices. This resulted in a Report of the Task Force on Criminal Implications of False Identification of the Fifth Conference of the Judiciary held by Laws At Work on May 23-24, 1984 in Los Angeles.
[T]he foundation, or breeder document, for almost any other kind of identification for citizens is the birth certificate. Over 7000 State and local vital records offices issue birth certificates with no uniform standards for issuance processes, controls, or quality of documents. In some jurisdictions, birth certificates are easily counterfeited, obtained through imposture, or created from stolen legitimate blank forms.
The culmination of this three-decade ID theft concept came with a 1988 report from the Office of the Inspector General. That report focused on fraudulent birth certificates as breeder documents used to gain Social Security numbers, cards, and benefits.
Birth certificate fraud involves one or more of the following illegal acts: stealing, transferring or selling valid birth certificates; counterfeiting, selling, or using bogus documents; using or selling altered documents; and using someone else's valid certificate by impersonating the owner.
Anecdotal responses in the study rated the birth certificate fraud methods in order of frequency: impersonation, counterfeiting, alteration, and theft. The Office of the Inspector General visited only 11 states and New York City in compiling the report. The report notes, "The sites included a disproportionate number of States with big cities or port or border cities where birth certificate fraud is heavily concentrated."
In particular, the report pointed the finger at open records states, making the direct statement that they were more susceptible to fraud. Hard evidence, however, for this statement cannot be found in the report. The investigated states included Massachusetts and Vermont. Both are open records states in New England. Absolutely none of the information in the report regarding fraudulent use of birth certificates comes from either Massachusetts or Vermont.
The Immigration and Naturalization Service furnished the only hard statistics found in the report. The INS found 16,130 fraudulent birth records in 1986 and 9,456 in 1987. The El Paso Intelligence Center noted that the documents came primarily from Texas, California, and Illinois. At the time of the report, the open records state California already routinely matched birth and death certificates. From this, it seems reasonable to conclude that birth certificate fraud seen by the INS came primarily from the closed records states of Texas and Illinois where no such efforts were made.
The 1988 report of the Inspector General made a series of recommendations to prevent birth certificate fraud. The recommendations centered on central state vital records offices and suggested that they:
- Standardize forms and content.
- Exercise greater control over local issuing offices.
- Ensure that the paper and seals are physically secure.
- "Urge" their legislatures to restrict access to records.
- Participate in interstate sharing of death records.
- Help the Social Security Agency in providing numbers to infants.
The Model State Vital Statistics Act was revised in 1992. The 1992 preface states, "A major goal of this revision is to ensure the vital statistics laws allow States to easily incorporate technological advances in records and information management." Many of those enhancements were to provide death information across state lines.
The Real ID Act of 2005 provides federal mandates on tamper proof standardized birth certificates, social security cards, and driver licenses; records security; and death record matching by states. Its details rely on the older understanding of breeder documents and ID theft. However, it is still pending regulatory proposals and may never be fully implemented. Currently only regulations for security improvements for driver licenses have been promulgated. The implementation of those regulations has been delayed; all 50 states received reprieves for implementation.
Consumer information is the currency of identity theft in the modern age. Perhaps the most valuable piece of information for the thief is the Social Security Number. Social Security, credit card, other financial account numbers and pass codes remain the actual massive "breeding ground" that have created exponential problems due to security breaches for the real motivation of ID theft: money.
Specific measures that have been initiated or implemented in the last two decades to ensure the security of Social Security Numbers include:
- Issuance of social security numbers for children.
- Truncated Social Security and financial account numbers in mailed statements.
- Matching of death records to birth records, noting "deceased" on birth certificates.
- Redacted Social Security numbers or restricted access to records containing Social Security numbers.
- Social Security cards issued by a central agency rather than a local office.
- All driver licenses standardized in content and appearance; all applications checked against Social Security Number database, per the Real ID Act of 2005.
Many private and public agencies have provided studies in the last decade to document the real cause and effect of ID theft. Legislative failures, lagging banking system upgrades, easy credit, increased use of technology, "inside jobs," inadequate law enforcement, and globalization have all contributed to a dramatic increase in ID theft opportunities and occurrences for one-stop shopping.
These realistic issues were finally addressed in this 2007 President's Identity Theft Task Force report. Never once does the report refer to a "birth certificate" or any vital record as a culprit. The term "breeder document" is not found at all. The report does describe what the identity thief is looking for:
Consumer information is the currency of identity theft, and perhaps the most valuable piece of information for the thief is the SSN. The SSN and a name can be used in many cases to open an account and obtain credit or other benefits in the victim's name. Other data, such as personal identification numbers (PINs), account numbers, and passwords, also are valuable because they enable thieves to access existing consumer accounts.
In its section, "The Contours of the Identity Theft Problem," the report provides statistics about the ways in which identities are stolen.
According to law enforcement agencies, identity thieves often have no prior criminal background and sometimes have pre-existing relationships with the victims. Indeed, identity thieves have been known to prey on people they know, including coworkers, senior citizens for whom they are serving as caretakers, and even family members. Some identity thieves rely on techniques of minimal sophistication, such as stealing mail from homeowners' mailboxes or trash containing financial documents. In some jurisdictions, identity theft by illegal immigrants has resulted in passport, employment, and Social Security fraud. Occasionally, small clusters of individuals with no significant criminal records work together in a loosely knit fashion to obtain personal information and even to create false or fraudulent documents.
Significantly, this list of sources of identity theft does not mention legally obtained birth certificates, marriage records, or death certificates. Nor does the report mention genealogists or historians. Indeed, law enforcement agencies around the country have observed a steady increase in the involvement of groups and organizations of repeat offenders or career criminals in identity theft:
A number of recent reports have focused on the connection between individual methamphetamine ("meth") users and identity theft. Law enforcement agencies in Albuquerque, Honolulu, Phoenix, Sacramento, Seattle, and other cities have reported that meth addicts are engaging in identity and data theft through burglaries, mail theft, and theft of wallets and purses. In Salt Lake City, meth users reportedly are organized by white-supremacist gangs to commit identity theft. Tellingly, as meth use has risen sharply in recent years, especially in the western United States, some of the same jurisdictions reporting the highest levels of meth use also suffer from the highest incidence of identity theft. Some state law enforcement officials believe that the two increases might be related, and that identity theft may serve as a major funding mechanism for meth labs and purchases. 
The rest of the Task Force's 108-page report details the fraud cycle, prevention, prosecution and remedy recommendations.
The Task Force also issued a report in October 2008 that updates the progress made in protecting consumer identities. Again, this document never uses the terms "breeder document" or "birth certificate." At no point does it suggest restricting records as a prevention measure. The major recommendations include enhancing data security in government agencies and using the Social Security Number less frequently in printed materials.
The Utah Attorney General maintains a website on identity theft that educates consumers and serves as a clearing house. That site lists the ways in which thieves find information. Nine information sources are listed. Not one mentions vital records.
The Federal Trade Commission published rules for financial institutions to follow to prevent identity theft on 9 November 2007. The final implementation date was 1 May 2009. In the Red Flags document, the term "birth" is only used in reference to a date of birth as one element of personal identity. The phrase "birth certificate" is never used. The word "breeder" does not appear.
The Red Flag rules support common-sense analysis of information by banks and other financial institutions. For example, the rules specify that institutions must check to ensure that a Social Security Number presented to them is not listed in the Social Security Death Index. The regulations promulgated by the FTC bring into being the identity protection prescriptions of the President's Task Force.
The 2009 financial crisis has provided an opportunity for credit institutions to be held accountable for lapses in common sense. In the 21st Century, this is how ID theft is truly deterred, not by closing records, but by creating an astute financial community.
Any record created by our government is by definition a public record. Only through transparency are we safe. Last year in Pennsylvania fines were raised for government employees who denied access to records in bad faith. Vital records should be covered by such a law.
Do the dead care if we know their names, their places of birth, their parents? Do the dead roll over in their graves when we tell their ages, who they married, or what shuffled them off this mortal coil?
If they care, they don't complain much. They don't contribute to the campaigns of politicians who close their records. They don't rise up and vote on election day (except in Chicago). Of course, they couldn't do that in Chicago if the records were open.
The living are a different story. They vote with their feet and with contributions to a billion dollar tourism industry. Countries in the Old World see a vast return on their heritage investments, welcoming descendants of émigrés to trips into their pasts.
The living understand that any record created by their government is a public record. In this age of transparency, no one wants to be caught hiding records in his or her socks. Secret records are cause for suspicion. If you don't mean it to be public, don't create it.
Every week in this country you can find a half dozen newspaper stories of men and women who searched all their lives for missing family, lost siblings, dead friends. The story is always the same. Jumping through hoops, evading draconian laws for closed records, or just living long enough to finally learn the answer when the 50 year, 75 year, 100 year closure ends.
The most generous thing anyone can say about the 1990s rules placing Social Security Numbers on vital records is that the framer should have a refresher on the law of unintended consequences. Those who howl loudest about this are typically from states that until recently put Social Security Numbers on drivers' licenses or that still put birth dates on the same, to the delight of pickpocket identity thieves everywhere.
In New Hampshire, the law was recently changed. Closed births from 1901 and marriages and deaths since 1947 got a 50-year reprieve. It was merely a housekeeping measure and passed without fanfare.
For Melinde Sanborn, this was important:
The result on my family was electrifying. For decades we had been concerned about uterine cancer which killed our great-grandmother. There was no history of this in the Massachusetts family, but a branch of the family had the misfortune to move to New Hampshire where death records with cause of death are closed. As it turns out, all the female cousins in NH that generation died of uterine cancer. We had to wait until 2008 to find out because they died in the late 1940s. So New Hampshire protected us from the information for 84 years - the time elapsed since great-grandmother died and the records of our cousins were released. Something happened to that generation - perhaps there is an insight to be had into the disease.
Every day I volunteer at the New Hampshire vital records I hear stories like this. It is lucky for everyone that the patient who brought Dr. Daniel Pollen a chart of three generations of early-onset Alzheimer's lived in Massachusetts, otherwise he could not have learned of his cousin's durations and deaths. No chart, no discovery of the gene, no eventual treatment.
Closed records are an abomination and a privilege I don't grant to my government. Yes, 100% open records, complete transparency. The complacency of legislators needs to be shaken up by a determined and frankly underestimated opponent - genealogists who vote.
Analysis of Examples of ID Theft
Actual crimes do occur using vital records. Anecdotal information of the following crimes shows some of the motivations for fraud: hiding past criminal activity, welfare fraud, and naturalization fraud.
- In Michigan in 2006, Bradford Storti applied for a certified copy of the birth certificate of John Slapp, who had died as an infant. The Attorney General's office found that Storti was trying to avoid registration as a sex offender. He was later convicted of identity theft. This attempt at identity theft was thwarted by state officials who matched the request against death records.
- In Kansas in 1998, Daniel Salas was involved in an accident. Investigators at the scene found that he was in the possession of 830 birth certificates and $10,000 in cash. Some were real certificates and others were altered. Of the total number of 830, Kansas officials found the names from 105 of the certificates had been used to apply for welfare - 55 had succeeded in receiving welfare for a total of $2 million per year.
- In Utah in 1995 and 1996, Etuate Lavulavu, a Tonga native, gave Utah birth certificates to eleven other natives of Tonga so that they could apply for U.S. citizenship. He was later convicted of illegal use of a birth certificate.
What ties these criminal acts together is that they all took place in states where birth records are closed and access is limited to the people named on them and their immediate families.
Closing records is the one-size-fits-all suggestion of Homeland Security. Faced with reality, however, we can see that our discussion of access to vital records needs to look beyond "20th century solutions for 21st century problems."
Press and Web Citations
The following articles address use of vital records and concerns about closing public records.
JOURNALISTS AND OPEN RECORDS
The Society of Professional Journalists, "Public Access to Vital Records Threatened by Terrorism Prevention Act," press release dated 8 March 2006, http://www.spj.org/news.asp?ref=552.
Peter Goonan, "Public Records Allow Scrutiny," The Republican [Springfield, Massachusetts], 19 March 2008, viewed 9 May 2009 at http://www.masslive.com/news/republican/index.ssf?/base/news-11/1205911443162850.xml&coll=1.
NEWSPAPER ARTICLES ON THE REAL ID ACT
Brian Krebs, "ID Task Force Ideas Receive Cool Reception," The Washington Post, 23 April 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/04/23/AR2007042301401.html.
Grant Gross, "ID theft task force recommends stronger laws: National law-enforcement effort, less SSN use recommended," ComputerWorld, 24 April 2007, http://www.computerworld.com/action/article.do?command=viewArticleBasic&taxonomyId=13&articleId=9017582&intsrc=hm_topic.
U.S. SURGEON GENERAL
Family History health for collateral family lines should be factored into medical care: http://www.hhs.gov/familyhistory/order.html.
QUERY IN GOOGLE NEWS FOR "ID THEFT" ON 8 MAY 2009 - FIRST FIVE RESULTS
Riya Bhattacharjee, "Secured UC Berkeley Databases Hacked, Students Warned About Identity Thefts," The Berkeley Daily Planet, Friday May 08, 2009, http://www.berkeleydailyplanet.com/issue/2009-05-07/article/32855?headline=Secured-UC-Berkeley-Databases-Hacked-Students-Warned-About-Identity-Thefts. "UC Berkeley officials announced Friday that Social Security numbers and other identification had been hacked from restricted university health services databases, putting students at risk of identity theft."
MICHAEL J. CRUMB, "Ex-worker at Iowa plant withdraws ID theft plea," The Associated Press, 5 May 2009, http://www.google.com/hostednews/ap/article/ALeqM5gBNsN8M-yQCahuBCw4DMbfvwShOQD9808LOO0. "Defense attorneys for employees at a kosher slaughterhouse accused of helping undocumented workers commit identity theft are trying to get some of the charges dismissed because of a new ruling by the U.S. Supreme Court. the court ruled Monday that undocumented workers who use phony identification can't be considered identity thieves unless they knew they were using ID numbers from real people. Some officials at the Agriprocessors plant in Postville, where hundreds of illegal immigrants were arrested in a raid last year, face identity theft counts."
Sharon Dunn, "SCOTUS ruling will have little effect on Greeley's ID theft cases," The Greeley Tribune, 7 May 2009. "Those cases, filed through Operation Number Games, a joint operation by Weld County Sheriff John Cooke and Buck, alleged that 1,330 immigrants had filed their taxes with false Social Security numbers. Many were charged with criminal impersonation, and some with identity theft."
Katie Couric, "Notebook: Identity Theft," blog entry posted 8 May 2009 6:59 PM. "With more Americans looking for work, there's one industry that's booming: identity theft. Overall, these crimes are up 22 percent, and the unemployed are increasingly becoming victims. The Identity Theft Resource Center says bogus help-wanted ads have quadrupled in the past few years. Many job seekers are desperate ... and these scammers KNOW it. People who would normally never give out their Social Security number or other personal information may do it if they think it will help them land a job. Then they get hit when they can least afford it."
--, "Restaurant owner charged with ID theft," The Fayetteville Observer, 9 May 2009, http://www.fayobserver.com/article?id=325894. "Police have identified at least 163 victims of a fraud scam involving the owner of a Fayetteville pizza restaurant. Mark Pinella, 37, who told police he is homeless, has been charged with multiple counts of identity theft, obtaining property by false pretense and conspiracy to traffick in cocaine, according to a release from the Fayetteville Police Department. [...] Pinella is accused of copying the numbers of credit cards and debit cards that were used by customers when they paid their bill at the restaurant, Chance said."
VITAL RECORDS FRAUDULANTLY OBTAINED
Anemona Hartocollis, "Dozens of Blank Birth Certificates Are Stolen From City Records Office," New York Times, 24 April 2009, http://www.nytimes.com/2009/04/25/nyregion/25records.html. "The city's Department of Health and Mental Hygiene discovered that 49 blank birth certificates were missing in March [...] The department has assigned new management to oversee the office, and will add surveillance cameras and record-tracking systems, Ms. Scaperotti said." The theft is alleged to have involved a health department worker and two others.
VITAL RECORDS USED FOR MEDICAL/HEALTH RESEARCH
Heather May, "Utah Researchers Link Autism to Breech Births," The Salt Lake Tribune, 27 April 2009, viewed 9 May 2009 at http://www.sltrib.com/news/ci_12220683. The researchers "came to the study's conclusions by analyzing the birth certificates of 132 Utah 8-year-olds who were diagnosed with autism in 2002. Those records were compared to 13,200 Utah children without the diagnosis."
William Francis Galvin, Secretary of the Commonwealth, A Guide to Massachusetts Public Records Law (Boston, Mass., March 2009), 50 pp.
Organizations Concerned about Records Access
There are many different interest groups involved in this discussion in addition to genealogists.
NATIONAL ASSOCIATION OF PUBLIC HEALTH STATISTICS AND INFORMATION SYSTEMS
NAPHSIS unites the information systems technology people from vital records offices throughout the U.S. and its territories. Based in Washington, DC, it has committees working directly with federal government committees on records issues. In addition, NAPHSIS holds annual conferences.
Web page home: http://www.naphsis.org
Web page providing links to all state-level vital records offices with online presences:
Web page providing educational presentations from national conferences:
NATIONAL ASSOCIATION OF COUNTY RECORDERS, ELECTION OFFICIALS AND CLERKS.
NACRC is the national organization that unites record keepers from the local level.
Web homepage: http://www.nacrc.org
SOCIETY OF PROFESSIONAL JOURNALISTS
Journalists support open government records and open government meetings because both are necessary for their work. This group's mission statement includes the support of first amendment rights.
Web home page: http://www.spj.org
MASSACHUSETTS NEWSPAPER PUBLISHERS ASSOCIATION
Overview page for legal aspects of open records and open meetings in the Commonwealth: http://masspublishers.org/media-law-guide/
Web homepage: http://masspublishers.org.
Newspapers and other media participate in Sunshine Week each year. They use the week to cover open records and open meetings as they pertain to keeping government open and honest. For 15-21 March 2009, that focus was open public records.
Web homepage: http://www.sunshineweek.org.
 U.S. Department of Justice, Federal Advisory Committee on False Identification, United States Department of Justice, The Criminal Use of False Identification: a Summary Report on the Nature, Scope, and Impact of False ID Use in the United States with Recommendations to Combat the Problem (Washington: U.S. Government Printing Office, 1976), 781 pp. No scanned image was found in an online search on 7 May 2009 but the book is available in Government Documents libraries, call no. J 1.2:Id 2.
 U.S. Department of Health and Human Services, Public Health Service, National Center for Health Statistics, "Model State Vital Statistics Act and Regulations," 1977 revision of 1959 document, published May 1978, 49 pp., viewed online (accessed 9 May 2009 at ; http://www.cdc.gov/nchs/data/misc/mvsact77acc.pdf).
 U.S. Office of the Inspector General, Office of Analysis and Inspections, "Birth Certificate Fraud," March 1988, "Preface," p. iv (accessed 7 May 2009; http://www.oig.hhs.gov/oei/reports/oai-02-86-00001.pdf).
 U.S. Department of Health and Human Services, Public Health Service, The Centers for Disease Control and Prevention, National Center for Health Statistics, "Model State Vital Statistics Act and Regulations," 1992 revision of 1977 document, published February 1994, 40 pp. (accessed online 9 May 2009 at http://www.cdc.gov/nchs/data/misc/mvsact92b.pdf).
 National Conference of State Legislators, Transportation Standing Committee, "Real ID Act of 2005: Driver's License Title Summary" (accessed 9 May 2009; http://www.ncsl.org/standcomm/sctran/realidsummary05.htm).
 U.S. Social Security Administration, "Social Security Numbers: Social Security Number Chronology" (accessed 7 May 2009; http://www.socialsecurity.gov/history/ssn/ssnchron.html), cites the Social Security Amendments of 1972 (P.L. 92-603).
 Utah Government Services, Identity Theft Reporting Information System, "What is Identity Theft?" (accessed 9 May 2009; http://idtheft.utah.gov/education/educationpages/whatisidentitytheft_001.html).
 U.S. Federal Trade Commission, "Identity Theft Red Flags and Address Discrepancies Under the Fair and Accurate Credit Transactions Act of 2003," The Federal Register, Friday, 9 November 2007, 16 CFR Part 681, 59 pp. (accessed 9 May 2009 at http://ftc.gov/os/fedreg/2007/november/071109redflags.pdf).
 Donna Calabrese, Director, Office of Vital Statistics, Kansas Department of Health and Environment, "Identity Crisis," presented at NAPHSIS 2006 convention (accessed 9 May 2009; www.naphsis.org/NAPHSIS/files/ccLibraryFiles/Filename/000000000332/CALABRESE_identity_crisis.ppt).
 Melinde Lutz Sanborn, posting a comment 13 March 2009 in response to Dick Eastman, "Open Access to Public Records: A Genealogical Perspective," blog posting dated 12 March 2009, in Eastman's Online Genealogical Newsletter, www.eogn.com.