Listening-In to or Recording Telephone Conversations

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 422

RIN 0960-AE66

Listening-In to or Recording Telephone Conversations

AGENCY: Social Security Administration (SSA).

ACTION: Final rules.

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SUMMARY: These final rules add regulations relating to the use of SSA's

telephone lines. In the new regulations, we describe the limited

circumstances under which SSA employees may listen-in to or record

telephone conversations and the procedures we will follow in connection

with this activity.

EFFECTIVE DATE: These final regulations are effective November 25,

1998.

FOR FURTHER INFORMATION CONTACT: Lois Berg, Legal Assistant, Office of

Process and Innovation Management, Social Security Administration,

L2109 West Low Rise Building, 6401 Security Boulevard, Baltimore, MD

21235, (410) 965-1713 or TTY (410) 966-5609. For information on

eligibility, claiming benefits, or coverage of earnings, call our

national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778.

SUPPLEMENTARY INFORMATION:

Background

On August 8, 1996, the Federal Information Resources Management

Regulation (FIRMR) was repealed. A provision of the FIRMR, section 201-

21.603, related to listening-in to or recording telephone

conversations. As a result of the repeal of the FIRMR, we are now

promulgating our own regulations describing the limited circumstances

under which SSA employees may listen-in to or record telephone

conversations. These circumstances include law enforcement/national

security, public safety, public service monitoring, and all-party

consent situations. We also describe in these final regulations the

procedures we will follow in determining the circumstances in which we

will permit listening-in to or recording telephone conversations, who

will listen-in to or record the conversations, and other policies and

procedures which we will follow in connection with this activity.

SSA is committed to providing the public with the highest level of

service by ensuring that information provided by SSA employees is

delivered accurately and courteously. To ensure that commitment, we

conduct monitoring of telephone calls over various designated SSA

telecommunications lines as a training and mentoring tool.

We believe service observation is necessary to effectively perform

SSA's mission. Therefore, we also conduct monitoring of telephone

conversations to provide an objective assessment of SSA's telephone

accuracy and courtesy. Data obtained through service observation are

also used to comply with a congressional request that SSA provide

Congress with information regarding teleservice center service levels

on a continuing basis. This is done in the agency's Annual Financial

Statement of Major Performance Measures. SSA's service observation

activities are valuable to the public, not only because the data

obtained are used to evaluate the accuracy of SSA's teleservice, but

also because the service observation findings are used to make

recommendations for improving teleservice procedures and processes.

Data obtained through service observation are also used to respond to

other oversight groups on how well SSA serves the public, for

corrective action recommendation purposes, and for assisting in agency

planning and decisionmaking.

Finally, SSA currently conducts recording of incoming calls on the

emergency telephone lines assigned to SSA headquarters. We believe the

recording of emergency calls is in the best interest of public safety

and agency emergency service.

The main purpose of these final regulations is to inform the public

and SSA employees of the circumstances under which SSA will listen-in

to or record telephone conversations. The final regulations also

contain language which differs from the repealed FIRMR which prohibited

the annotating, e.g., writing down, of personal information such as a

beneficiary's name, Social Security number, etc., when monitoring

telephone calls. Because SSA has the responsibility to pay benefits

correctly and to provide the public with accurate information, as well

as to safeguard the trust funds, the final regulations will allow

authorized employees to write down personal information obtained when

listening-in to telephone calls. Annotated information obtained from

public service monitoring will be used for programmatic or policy

purposes; e.g., for recontacting individuals to correct or supplement

information relating to benefits, for assessment of current/proposed

policies and procedures, or to correct SSA records, etc.

Explanation of Final Regulations

We are adding a new subpart H to part 422 of our rules which will

contain regulations relating to the use of SSA's telephone lines. This

new subpart H contains three sections. In Sec. 422.701, we

[[Page 57057]]

explain the scope and purpose of subpart H. In Sec. 422.705, we explain

when SSA employees may listen-in to or record telephone conversations.

Finally, in Sec. 422.710, we describe the procedures we will follow

when we plan to listen-in to or record telephone calls, who will do it,

and other policies and procedures which we will follow.

Comments on Notice of Proposed Rulemaking (NPRM)

On March 11, 1998, we published proposed rules in the Federal

Register at 63 FR 11856 and provided a 60-day period for interested

individuals and organizations to comment. We received two letters from

organizations with comments. Following are summaries of the comments

and our responses to them.

Comment: One commenter was of the opinion that the proposed

regulations would have a chilling effect on the ability of SSA to

effectively carry out its purpose of serving the public, especially in

the matter of disability claims.

Response: SSA has conducted an ongoing evaluation of SSA's 800

number service since 1989. This evaluation involves the monitoring of

800 number telephone calls in order to ensure that the public is

receiving accurate and courteous service. These data are reported to

Congress each year in the Agency's Annual Financial Statement of Major

Performance Measures and for training purposes.

Comment: One of the commenters indicated the use of a recording

advising claimants that their conversations may be monitored could

seriously undermine the confidence of the public in the entire system.

However, the other commenter was pleased that the regulations contained

language that the Agency will provide notice to the public about SSA

telephone monitoring.

Response: To our knowledge, there has been no negative impact

resulting from SSA's use of an upfront service observation message to

let 800 number callers know that their calls may be monitored for

quality assurance purposes.

Comment: One commenter indicated the regulations presume consent

when there is none and provide absolutely no protection for employees.

Response: All callers whose telephone calls have the possibility of

being monitored for quality assurance purposes receive a message before

speaking with an SSA representative. If a caller does not wish to

consent to monitoring, the caller can choose to terminate the call or

request that the call not be monitored.

SSA and the American Federation of Government Employees have

bargained and reached agreement on telephone monitoring practices which

take place in the Agency. Affected employees are also aware of SSA

telephone monitoring practices.

Comment: One commenter questioned the need for regulations that

permit virtual total discretion in monitoring SSA telephone calls,

which includes the use of unannounced service observation.

Response: The anonymity and lack of notice to employees when

unannounced monitoring is employed provides SSA with an unbiased

measurement of telephone service. Unannounced monitoring currently

allows the Agency to provide an objective assessment of SSA's 800

number accuracy and courtesy which is submitted to Congress in the

Agency's Annual Financial Statement of Major Performance Measures.

These data are also used to respond to other oversight groups on how

well SSA serves the public, for corrective action recommendations

purposes and to assist in Agency planning and decisionmaking.

Comment: One commenter indicated the regulations should limit the

number of people who can monitor telephone calls.

Response: The number of people assigned to monitor SSA telephone

calls is a management decision based upon SSA's needs at any given

time.

Comment: One commenter was of the opinion that unannounced

listening to speaker phone conversations is not acceptable.

Response: SSA agrees that failing to identify all persons listening

to a speaker phone conversation is discourteous, but courtesy issues

are not an appropriate subject for these regulations. Moreover, there

are times when discretion would be used, e.g., on whether to disrupt a

speaker simply to notify all parties to the conversation that an

individual who could overhear the conversation entered the area.

Comment: One commenter indicated SSA should use annotated

information obtained from service observation only for programmatic and

policy purposes.

Response: The regulation language on the use of annotated

information is appropriate as most annotated information obtained from

service observation will be used for programmatic or policy purposes.

Comment: One commenter indicated SSA should commit to taking

corrective action and eliminate the phrase ``when possible''.

Response: It is not possible for SSA to commit to taking corrective

action every time an incorrect action is taken or incorrect information

is provided which could affect the payment of or eligibility to SSA

benefits. This is because monitored calls do not always contain

sufficient identifying information, such as a caller's name, address,

telephone number and/or Social Security number, to allow corrective

action to be taken.

For the reasons given in our responses to the comments on the

proposed rules, we have not changed the text of the proposed rules.

Therefore, we are publishing the proposed regulations unchanged as

final regulations.

Regulatory Procedures

Executive Order 12866

We have consulted with the Office of Management and Budget (OMB)

and determined that these final rules do not meet the criteria for a

significant regulatory action under Executive Order 12866. Thus, they

were not subject to OMB review.

Regulatory Flexibility Act

We certify that these final regulations will not have a significant

economic impact on a substantial number of small entities because they

affect only individuals. Therefore, a regulatory flexibility analysis

as provided in the Regulatory Flexibility Act, as amended, is not

required.

Paperwork Reduction Act

These final regulations impose no additional reporting or

recordkeeping requirements necessitating clearance by OMB.

(Catalog of Federal Domestic Assistance Program Nos. 93.773

Medicare-Hospital Insurance; 93.774 Medicare-Supplementary Medical

Insurance; 96.001 Social Security-Disability Insurance; 96.002

Social Security-Retirement Insurance; 96.003 Special Benefits for

Persons Aged 72 and Over; 96.004 Social Security-Survivors

Insurance; 96.005 Special Benefits for Disabled Coal Miners; and

96.006 Supplemental Security Income)

List of Subjects in 20 CFR Part 422

Administrative practice and procedure, Freedom of information,

Organization and functions (Government agencies), Reporting and

recordkeeping requirements, Social security.

Approved: October 13, 1998.

Kenneth S. Apfel,

Commissioner of Social Security.

For the reasons set out in the preamble, we are amending part 422

of chapter III of title 20 of the Code of Federal Regulations as

follows:

[[Page 57058]]

PART 422--ORGANIZATION AND PROCEDURES

1. Subpart H is added to Part 422 to read as follows:

Subpart H--Use of SSA Telephone Lines

Sec.

422.701 Scope and purpose.

422.705 When SSA employees may listen-in to or record telephone

conversations.

422.710 Procedures SSA will follow.

Subpart H--Use of SSA Telephone Lines

Authority: Secs. 205(a) and 702(a)(5) of the Social Security Act

(42 U.S.C. 405 and 902(a)(5)).

Sec. 422.701 Scope and purpose.

The regulations in this subpart describe the limited circumstances

under which SSA is authorized to listen-in to or record telephone

conversations. The purpose of this subpart is to inform the public and

SSA employees of those circumstances and the procedures that SSA will

follow when conducting telephone service observation activities.

Sec. 422.705 When SSA employees may listen-in to or record telephone

conversations.

SSA employees may listen-in to or record telephone conversations on

SSA telephone lines under the following conditions:

(a) Law enforcement/national security. When performed for law

enforcement, foreign intelligence, counterintelligence or

communications security purposes when determined necessary by the

Commissioner of Social Security or designee. Such determinations shall

be in writing and shall be made in accordance with applicable laws,

regulations and Executive Orders governing such activities.

Communications security monitoring shall be conducted in accordance

with procedures approved by the Attorney General. Line identification

equipment may be installed on SSA telephone lines to assist Federal law

enforcement officials in investigating threatening telephone calls,

bomb threats and other criminal activities.

(b) Public safety. When performed by an SSA employee for public

safety purposes and when documented by a written determination by the

Commissioner of Social Security or designee citing the public safety

needs. The determination shall identify the segment of the public

needing protection and cite examples of the possible harm from which

the public requires protection. Use of SSA telephone lines identified

for reporting emergency and other public safety-related situations will

be deemed as consent to public safety monitoring and recording. (See

Sec. 422.710(a)(1))

(c) Public service monitoring. When performed by an SSA employee

after the Commissioner of Social Security or designee determines in

writing that monitoring of such lines is necessary for the purposes of

measuring or monitoring SSA's performance in the delivery of service to

the public; or monitoring and improving the integrity, quality and

utility of service provided to the public. Such monitoring will occur

only on telephone lines used by employees to provide SSA-related

information and services to the public. Use of such telephone lines

will be deemed as consent to public service monitoring. (See

Sec. 422.710(a)(2) and (c)).

(d) All-party consent. When performed by an SSA employee with the

prior consent of all parties for a specific instance. This includes

telephone conferences, secretarial recordings and other administrative

practices. The failure to identify all individuals listening to a

conversation by speaker phone is not prohibited by this or any other

section.

Sec. 422.710 Procedures SSA will follow.

SSA component(s) that plan to listen-in to or record telephone

conversations under Sec. 422.705(b) or (c) shall comply with the

following procedures.

(a) Prepare a written certification of need to the Commissioner of

Social Security or designee at least 30 days before the planned

operational date. A certification as used in this section means a

written justification signed by the Deputy Commissioner of the

requesting SSA component or designee, that specifies general

information on the following: the operational need for listening-in to

or recording telephone conversations; the telephone lines and locations

where monitoring is to be performed; the position titles (or a

statement about the types) of SSA employees involved in the listening-

in to or recording of telephone conversations; the general operating

times and an expiration date for the monitoring. This certification of

need must identify the telephone lines which will be subject to

monitoring, e.g., SSA 800 number voice and text telephone lines, and

include current copies of any documentation, analyses, determinations,

policies and procedures supporting the application, and the name and

telephone number of a contact person in the SSA component which is

requesting authority to listen-in to or record telephone conversations.

(1) When the request involves listening-in to or recording

telephone conversations for public safety purposes, the requesting

component head or designee must identify the segment of the public

needing protection and cite examples of the possible harm from which

the public requires protection.

(2) When the request involves listening-in to or recording

telephone conversations for public service monitoring purposes, the

requesting component head or designee must provide a statement in

writing why such monitoring is necessary for measuring or monitoring

the performance in the delivery of SSA service to the public; or

monitoring and improving the integrity, quality and utility of service

provided to the public.

(b) At least every 5 years, SSA will review the need for each

determination authorizing listening-in or recording activities in the

agency. SSA components or authorized agents involved in conducting

listening-in or recording activities must submit documentation as

described in Sec. 422.710(a) to the Commissioner of Social Security or

a designee to continue or terminate telephone service observation

activities.

(c) SSA will comply with the following controls, policies and

procedures when listening-in or recording is associated with public

service monitoring.

(1) SSA will provide a message on SSA telephone lines subject to

public service monitoring that will inform callers that calls on those

lines may be monitored for quality assurance purposes. SSA will also

continue to include information about telephone monitoring activities

in SSA brochures and/or pamphlets as notification that some incoming

and outgoing SSA telephone calls are monitored to ensure SSA's clients

are receiving accurate and courteous service.

(2) SSA employees authorized to listen-in to or record telephone

calls are permitted to annotate personal identifying information about

the calls, such as a person's name, Social Security number, address

and/or telephone number. When this information is obtained from public

service monitoring as defined in Sec. 422.705(c), it will be used for

programmatic or policy purposes; e.g., recontacting individuals to

correct or supplement information relating to benefits, for assessment

of current/proposed policies and procedures, or to correct SSA records.

Privacy Act requirements must be

[[Page 57059]]

followed if data are retrievable by personal identifying information.

(3) SSA will take appropriate corrective action, when possible, if

information obtained from monitoring indicates SSA may have taken an

incorrect action which could affect the payment of or eligibility to

SSA benefits.

(4) Telephone instruments subject to public service monitoring will

be conspicuously labeled.

(5) Consent from both parties is needed to tape record SSA calls

for public service monitoring purposes.

(d) The recordings and records pertaining to the listening-in to or

recording of any conversations covered by this subpart shall be used,

safeguarded and destroyed in accordance with SSA records management

program.

[FR Doc. 98-28525 Filed 10-23-98; 8:45 am]

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