By: Elliotte Kiel<\/p>\n\n\n\n
Applicant Surveillance to Prevent Fraud<\/a><\/strong><\/p>\n\n\n\n In March 2019, the Social Security\nAdministration (SSA) announced<\/a> it is\nlooking into social media surveillance of Social Security Disability Insurance\n(SSDI) applicants. The agency justified this as part of their \u201cresponsibility\nto detect and prevent fraud.\u201d <\/p>\n\n\n\n SSDI<\/a> pays\nmonthly benefits to people who cannot regularly work because of a disability\nexpected to last at least one year or result in death. Those who are working\nand earn an average\nof $1,220<\/a> or more per month do not generally qualify for SSDI\nbenefits. The program also requires applicants to have worked and contributed a\ncertain amount to Social Security before applying for benefits, adjusted for\nthe applicant\u2019s age. <\/p>\n\n\n\n As the New York Times reported<\/a>, the Trump administration has worked directly with the SSA to develop this proposal. Despite campaign promises not to cut Medicare, Medicaid, or Social Security, President Trump has proposed reductions in SSDI in his 2018 and 2019 budgets. The administration and the conservative Heritage Foundation<\/a> have placed great emphasis on allegedly rampant fraud and abuse within SSDI.<\/p>\n\n\n\n \u2018Rampant\u2019 Fraud Under One Percent <\/strong><\/p>\n\n\n\n Right now, it is not routine for disability\nexaminers to look at SSDI applicants\u2019 social media. However, the SSA Office of\nthe Inspector General (OIG) does sometimes use recipients\u2019 social media to\ncorroborate information from other sources in fraud investigations. In 2014, Reuters\nreported<\/a> social media was used to \u201chelp arrest more than one\nhundred people who defrauded SSDI out of millions of dollars.\u201d <\/p>\n\n\n\n Yet such fraud is hardly widespread within the program. In each of the last three years, the rate of overpayments<\/a> for all SSA programs was well under one percent of benefits payouts. Overpayments include not only fraud, but administrative delays and errors. <\/p>\n\n\n\n Everyone Lies on Facebook<\/strong><\/p>\n\n\n\n Social media posts do not always create an\naccurate picture of someone\u2019s disability. Even among the able-bodied, users\nof social media frequently embellish their lives<\/a>. Suppose\nan applicant with limited mobility posts a photo today of them waterskiing. The\nphoto may not be recent at all. It could have been taken before the applicant\nbecame disabled, or before their condition worsened to the point where they\ncould no longer work. <\/p>\n\n\n\n For SSDI applicants with a chronic illness, this reality becomes even more complicated. Many<\/a> chronic<\/a> illnesses<\/a> involve periods of remission and \u201cflareups\u201d, meaning someone could be capable of hiking or going to an amusement park one day, and yet bedridden for the following week. And as disability rights advocates have rightly observed<\/a>, disabled people often have difficulty participating in in-person social activities and may otherwise lead an isolated life. For these people, social media can be a \u201cliteral lifeline,\u201d providing much-needed social interaction. <\/p>\n\n\n\n Online Surveillance Suppresses Speech<\/strong><\/p>\n\n\n\n The SSA\u2019s monitoring of social media is already\nleading to a chilling effect on the online speech of SSDI recipients and applicants.\nLawyers specializing in Social Security claims advise recipients of SSDI and\nthose in the process of making a claim to be careful what they post on social\nmedia. While the SSA has rules to prohibit judges and disability examiners for\nsearching the internet for information on SSDI applicants, attorneys warn \u201cthat\ndoesn\u2019t mean it never happens.<\/a>\u201d <\/p>\n\n\n\n Law firm webpages warn claimants to increase\ntheir privacy settings<\/a>, avoid talking to strangers on social\nmedia, and to not\npost pictures<\/a> of an active lifestyle, regardless of the date\nthey were taken. One\nfirm<\/a>\nspecifically warns, \u201c[i]nnocent comments you make about your weekend could end\nup as evidence used against you to deny your application.\u201d <\/p>\n\n\n\n Through its chilling effect on online speech, social\nmedia monitoring by the SSA infringes on the First Amendment rights of SSDI\napplicants and recipients. Should the proposal to officially monitor\napplicants\u2019 social media go into place, this chilling effect will only increase.\n<\/p>\n\n\n\n Examples of the SSA using social media posts in\nfraud investigations are currently rare. And anecdotal stories of disability\nexaminers or judges denying an SSDI claim based on perceptions colored by the\napplicant\u2019s social media are difficult to verify. However, the Trump\nadministration is urging systematic review of both applicants\u2019 and current\nrecipients\u2019 social media. <\/p>\n\n\n\n As the Supreme Court found in NAACP v. Button<\/em><\/a>, \u201cthe threat of sanctions may deter [the exercise of free speech] almost as potently as the actual application of sanctions.\u201d People whose disabilities qualify them for SSDI feel threatened with the denial or revocation of these benefits if they post the wrong thing on the internet, and so the SSA has effectively restricted their freedom of speech. <\/p>\n\n\n\n But It\u2019s Difficult to Sue<\/strong><\/p>\n\n\n\n Unfortunately, legally, it may not be that\nsimple. The Supreme Court in Laird\nv Tatum<\/em><\/a> held that plaintiffs did not have standing to\nsue alleging a violation of their First Amendment rights on a surveillance\npolicy\u2019s \u201cchilling effect\u201d alone. The plaintiffs would have to show specific\naction taken against them. <\/p>\n\n\n\n Thus, any potential plaintiff will have to\ndistinguish Laird<\/em><\/a> <\/em>to\neven have standing to sue.<\/em> This is true whether they plan to sue the SSA\nover its current use of social media in fraud investigations, or the new\nproposed policy of applicants\u2019 surveillance (if it goes into effect). <\/p>\n\n\n\n A plaintiff whose disability meets the criteria\nfor SSDI would have to prove their claim was denied or their benefits revoked\nbecause of a social media post. Someone whose SSDI has not been denied or\nrevoked, or for whom the reason was not clear, could not show \u201cspecific action\u201d\nagainst them under Laird<\/em><\/a>.<\/p>\n\n\n\n Monitoring the online posts of disability\nbenefits applicants for evidence of fraud sounds like something out of a\ndystopian sci-fi novel. Data indicate the fraud this proposal intends to\naddress has little impact on the efficiency of the program. Yet people who need\nSSDI benefits to live will self-censor online under the threat that if they\nappear too able to an outside observer, they may be denied these benefits. This\ninfringes on the First Amendment rights of SSDI applicants and recipients. <\/p>\n\n\n\n By: Elliotte Kiel Applicant Surveillance to Prevent Fraud In March 2019, the Social Security Administration (SSA) announced it is looking into social media surveillance of Social Security Disability Insurance (SSDI) applicants. The agency justified this as part of their \u201cresponsibility to detect and prevent fraud.\u201d SSDI pays monthly benefits to people who cannot regularly work …<\/a><\/p>\n","protected":false},"author":10,"featured_media":2730,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[7],"tags":[100,205,315,317,329],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2723"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=2723"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2723\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/2730"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=2723"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=2723"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=2723"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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