Discussion:

According to the documents provided by both Mr. Nadesan and Ms. Baer, BSU's student registration system relies upon faculty members to enter their Social Security numbers and PINs by touchtone telephone, along with the student's Social Security number and course registration information.

Mr. Nadesan asked whether BSU's requirement that faculty members supply the records office with personal data invoked the notice provision of Minnesota Statutes Section 13.04, subdivision 2, commonly known as the Tennessen Warning. This provision states:

Mr. Nadesan's Social Security number and birth date, as collected, maintained and used by BSU, are personnel data. Pursuant to Section 13.43, personnel data ...means data on individuals collected because the individual is or was an employee of...a state agency, statewide system or political subdivision.... Certain personnel data are classified as public under subdivision 2; all other personnel data, including Social Security numbers and birth dates, are private, pursuant to subdivision 4. Therefore, Mr. Nadesan's Social Security number and birth date, as collected, maintained and used by BSU, are private personnel data, which means that BSU must give a Tennessen Warning concerning the use of these data at the time they are collected. (Section 13.43 notwithstanding, the Legislature had classified Social Security numbers as private prior to the enactment of Chapter 13. It has further underscored its intention regarding classification of these data through its 1994 enactment of Section 13.49, which classifies Social Security numbers as private.)

In order to evaluate BSU's obligations regarding its use and dissemination of faculty Social Security numbers for student registration, it is also necessary to review provisions of Section 13.05, which detail the means by which a government entity may obtain authority to use private data in a manner which was not included in a Tennessen Warning, and which place further restrictions upon the collection and use of private data. Subdivision 4 states that [p]rivate or confidential data on an individual shall not be collected, stored, used, or disseminated...for any purposes other than those stated to the individual at the time of collection in accordance with Section 13.04, except as provided in this subdivision.

The exceptions to the requirement that private data may be used and disseminated only as stated to an individual at the time of collection are when: (1) the data were collected prior to August 1, 1975 and are used for the originally-stated purpose, or a purpose specifically authorized by the Commissioner; (2) subsequent to the data collection, a state, local or federal law specifically authorizes the use or dissemination; (3) the Commissioner specifically authorizes the use; (4) the individual gives her/his informed consent; or (5) at a meeting open to the public to the extent provided in Section 471.705, subdivision 1d.

Section 13.05, subdivision 3, further limits a government entity's collection of all data, and the use of private and confidential data to ...that necessary for the administration and management of programs specifically authorized by the Legislature or local governing body or mandated by the federal government. If the collection or use is necessary, and the data are private or confidential, then the entity must give the individual a Tennessen Warning. When the provisions of Sections 13.04 and 13.05 are read together, it is clear that a government entity may use and disseminate private data only as stated to an individual at the time of collection, unless one of the exceptions noted above applies. If the entity fails to give a Tennessen Warning, then the data may not be used for any purpose.

Therefore, in order for BSU to have implemented a registration system which relies upon the use of private data, i.e. faculty Social Security numbers and birth dates, it was obligated first to determine that it had authority to do so, and then to assure that it established procedures to exercise that authority properly, in accordance with the requirements contained in Sections 13.04 and 13.05.

Professor Nadesan stated that he did not receive a Tennessen Warning concerning this use of private data about him, and he has not indicated that he has given BSU his informed consent. BSU was invited to comment on whether it has provided faculty members with Tennessen Warnings concerning this issue, but in its response to the Commissioner, it chose not to. Ms. Baer did say that a faculty member could request that the original PIN assigned by the records office could be something other than the birth date, but did not indicate that faculty members are notified of that right. BSU also did not provide information as to what statutory authority it relied upon to establish this practice.

Mr. Nadesan also asked the Commissioner to comment on the relevance of the federal Privacy Act of 1974, Public Law 93-579, to BSU's Touchtone Registration System. In general, the Commissioner is reluctant to address federal law in her opinions. However, for educational and information purposes in this instance, which concerns Social Security numbers, she has concluded that it is necessary for her to do so.

The relevant provision, Section 7* of Public Law 93-579, the Privacy Act of 1974, reads as follows:

(*Public Law 93-579 was codified at 5 U.S.C. section 552a. Section 7, as quoted above, was not incorporated into the U.S.Code.)

The Congress has enacted very limited exceptions to the constraints it has imposed upon government entities' authority to require individuals to provide their Social Security numbers. An individual may be denied ...a right, benefit, or privilege provided by law because of such individual's refusal to disclose his Social Security account number... only in very narrow circumstances. The most notable are contained in a 1976 amendment to the Social Security Act, which authorizes states and their political subdivisions to require individuals to provide their Social Security numbers for the purposes of the administration of any tax, general public assistance, or driver's license or motor vehicle registration, regardless of whether the number was used for those purposes prior to January 1, 1975 (42 U.S.C. section 405(c)(2)(C)(i) and (iii).)

It appears, in the absence of evidence to the contrary, that BSU has implemented a student registration system which is dependent upon faculty and student Social Security numbers for its operation. It appears that BSU's practice amounts to a mandatory requirement that faculty and students provide their Social Security numbers for this purpose. There does not appear to be authority within the language of Public Law 93-579, the Privacy Act of 1974, or the 1976 amendment to the Social Security Act noted above, for BSU to do so.

In addition, Public Law 93-579, Section 7 (b) clearly imposes upon state and local government agencies an affirmative obligation to apprise individuals who have been asked to supply their Social Security numbers of certain information. In particular, individuals must be informed of the uses to which the number will be put, and whether the disclosure is voluntary or mandatory. This notice must be given whenever the government entity requests that an individual provide her/his Social Security number; the obligation contained in this Section is not qualified in any way. As a state government entity, BSU has an affirmative obligation, pursuant to state and federal law, to provide proper notice to individuals from whom it requests Social Security numbers, and has had this obligation for more than twenty years.

The impetus for government entities to employ the Social Security number as a universal identifier is increasing. Both the Minnesota Legislature and the U.S. Congress have addressed in statute and law their concerns in this regard, and their intention that individuals be able to make informed decisions when asked to disclose their Social Security numbers to agents of government. Therefore, it is incumbent upon any Minnesota government entity, when contemplating the use of the Social Security number as a unique identifier, as a security access code, or for other purposes, to address the requirements of the federal Privacy Act of 1974, and the Legislature's classification of Social Security numbers as private data.

Opinion: