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The Privacy Act and the Selective Service System

Privacy Act notices and regulations applicable to Selective Service System (SSS) records:

The Federal Privacy Act of 1974 (5 U.S.C. §552a) established procedures by which people who have registered (or who have been registered) with the Selective Service System (SSS) can request classification, deferment, or exemption by the SSS (even before the SSS is carrying out classification or exemption), submit evidence in support of these claims, require the SSS to keep records of these claims and all of the evidence submitted in support of them, and make a concise entry in SSS records, which the SSS is required to retain and include whenever the record is disclosed, as to the claim(s) they have made, how they believe they should be classified, or other matters.

The Privacy Act applies to all Federal agencies, not just the SSS. The Privacy Act was enacted in 1974, after the last inductions into the U.S. military. It was not intended to be used by individuals to force the SSS or other Federal agencies to keep records of “premature” claims. But this is one of its uses.

The Privacy Act could be especially useful for those registrants who plan to respond to an order to report for examination or induction by making a claim for classification as a conscientious objector (CO) or some other deferment or exemption, and who want to make a claim and/or submit evidence to the SSS in advance, before the SSS is processing such claims or wants to receive them.

Think carefully about the risks you are taking before you submit a Privacy Act request.

Registering, acknowledging or responding to any communication from the SSS, or submitting additional claims or evidence to the SSS — including through a Privacy Act request — is a high-risk strategy. The general advice of most criminal defense attorneys is to avoid unnecessary engagement with the government and to remain silent (and contact a lawyer immediately) if questioned. Our advice to most people faced with registration is not to register until just before your 26th birthday unless you have to register sooner to qualify for some government program you decide is a higher priority than your opposition to the draft.

Claims and supporting information submitted through a Privacy Act request can make a record with the SSS that, if and when a registrant is ordered to report for examination or induction, might end up supporting their claim for reclassification, deferment, or exemption.

On the other hand, the situation in the world, the nature of the wars being fought, and the registrant’s beliefs, goals, situation in life, and strategy with respect to the SSS may all have changed by the time an order to report arrives. The criteria for the classification being sought may have changed in the meantime, and the same evidence may end up being used against that claim, or being used against a registrant at trial or sentencing, if they are later prosecuted. Registering in the hope of pursuing CO classification or another deferment or exemption if drafted is a high-risk gamble. “Locking in” that claim through a Privacy Act request ups the ante on that gamble.

Even if you are already registered, staying silent and avoiding any further engagement with the SSS may be the safest option for most people navigating the maze of the Selective Service System. But we understand that some people may, despite the risks, want to force the SSS to acknowledge their claim in advance, even if it will be ignored until they are actually ordered to report for examination or induction. In particular, a Privacy Act request, appeal, and notice of dispute, as explained below, is the closest you can get to “registering as a CO”, if that’s what you want to do.

Using the Privacy Act successfully requires careful attention to the procedural requirements. There is little case law for guidance, and few lawyers have expertise or experience with the Privacy Act. You (and your draft counselor, if you are working with one) should start by familiarizing yourself with the Privacy Act, the SSS Privacy Act regulations and notices, and the “records schedules” governing retention by the SSS of registration records and records of Privacy Act requests.

SSS records subject to the Privacy Act

SSS records about individual registrants, including any classification records, are included in a “system of records” called the Registration, Compliance and Verification (RCV) System. Privacy Act rules specific to the RCV are contained in a System Of Records Notice (SORN), the most recent version of which was published at 82 Federal Register 29971-29972 (June 30, 2017). General SSS rules and procedures for Privacy Act requests are included in 32 CFR § 1665 (last revised February 18, 1982).

Retention of RCV records is governed by Records Schedule DAA-0147-2015-0004. Retention of records related to Privacy Act requests for amendment of records is governed by Records Schedule DAA-GRS-2013-0007-0007 promulgated by the National Archives and Records Administration (NARA) as part of NARA General Records Schedule 4.2, item 090.1.

(The links above are provided for convenience, but I can’t promise that these are the most recent versions. The Selective Service System doesn’t give me notice when it changes its rules! If you notice that any of the linked documents have been revised, please let me know.)

Other Federal laws impose additional requirements related to the collection, maintenance, use, and sharing of personal information by Federal agencies, but without creating rights enforceable by individuals. In particular, the SSS appears, at least as of early 2022, to be in violation of the Computer Matching Act. This Federal law requires advance notice in the Federal Register, a Privacy Impact Assessment, due-process procedures for individuals who are denied benefits on the basis of data matching, and an annual cost-benefit review and report to Congress for each program. (The requirements of the Computer Matching Act and the failure of many Federal agencies to comply with them were discussed in GAO report 14-44.) In the rare instance when the SSS has published notices of its data matching programs, they have failed to include much of the information required by the Computer Matching Act. The most recent data matching notice published by the SSS still left out much of the required information, and expired in 2020. Later in 2020, the SSS finally appointed a “Data Governance Board and Data Integrity Board”, presumably to conduct the reviews required to bring the SSS into compliance with the Data Matching Act. But in its February 2022 response to a FOIA request, the SSS said it has no record of any cost-benefit analysis, annual review, or report to Congress or OMB with respect to any of its data matching programs. As of its August 2022 response to another FOIA request, the SSS still had not conducted or promulgated any of the required assessments or notices. States should not share personal data with a Federal agency that flouts Federal privacy law.

Request for access to SSS records

You may not be sure, and might be mistaken even if you think you are sure, whether or not you have registered or been registered with the SSS as a collateral consequence of some other action such as applying for a driver’s license or learner’s permit matriculating at a state college. The notice that you were being registered, or would be registered when you reached age 18, may have been deeply buried in the fine print at the end of a long form that few people read in its entirety.

It’s possible for you to use the Privacy Act to request a copy of your own SSS records, in order to find out if you are registered, but this is generally neither necessary nor advisable.

The most difficult element of any violation of the Military Selective Service Act (MSSA) for the government to prove at trial is likely to be knowledge of the requirement alleged to have been violated: the requirement to register or to report address changes, the order to report for examination or induction, etc. The “specific intent” element of the MSSA means that, unlike with respect to most laws, ignorance of the law is a defense in these cases. More than that, the government has the burden of proving actual knowledge on the part of the defendant of the specific requirement of the MSSA that the defendant is accused of violating. You should be very cautious about taking any action — such as registering, signing for a registered letter or opening an e-mail message (e-mail messages can contain tracking code that tells the sender if they have been opened) from Selective service, making a Privacy Act request, or writing to the government or making public statements about nonregistration — that could provide evidence of your knowledge of SSS general requirements or individual orders.

A Privacy Act request for your own registration record is likely to create a record evidencing your knowledge of the registration requirement, and may provide the SSS with a more current address that will make it easier for them to serve you with an order to report. It will generally be safer to have some other trusted intermediary make inquiries to the SSS (not through the Privacy Act) to find out if you are already registered. Perhaps surprisingly, any registrant’s name, Selective Service Registration Number, date of birth, and classification (if any) are available on request to any member of the general public. This is enough information to tell whether you are registered and, if so, to confirm that you have not been classified. (This might be seen as a necessary preliminary to requesting amendment of your record to show a classification request, as discussed below. But since nobody is being classified, and no current registration records include any classification information, this is isn’t strictly necessary.)

Request for amendment of SSS records

To be sure that it is retained by the SSS, your request must be worded explicitly as a Privacy Act request for amendment of records. A letter that begins, “I request that I be classified as a conscientious objector” will be thrown away without a trace. Appropriate language to use would be something like this:

Pursuant to the Privacy Act of 1974 (5 U.S.C. §552a) and regulations of the Selective Service System at 32 CFR § 1665.4, I hereby request that incomplete and/or inaccurate records pertaining to me which are contained in the Registration, Compliance and Verification (RCV) System be amended to indicate that I am entitled to classification as a conscientious objector (1-O).

A similar request could be used to indicate a request for any other Selective Service classification, or to request that other statements be added to your records with the SSS: “I believe that the Military Selective Service Act is unconstitutional”, “I believe that building, maintaining, and threatening to use nuclear weapons is a violation of international law”, “I believe that military conscription is unconstitutional in the absence of a declaration of war by the U.S. Congress”, “I registered under protest”, “I was registered involuntarily by the Motor Vehicle Bureau”, “my registration does not indicate that I approve of the draft or am willing to be drafted”, or whatever you want to say.

The SSS probably won’t want to retain voluminous materials submitted in support of such a request. To make it harder for the SSS to separate supporting documentation from the request and throw it away, it’s probably best to number the entire package including the request and supporting materials with a single continuous sequence of page numbers (lawyers and legal workers will be familiar with the concept of Bates numbers), with the signature page at the end as the last numbered page.

It’s also a good idea to remind the SSS of its obligation to retain your request:

I remind you that this request is subject to Records Schedule DAA-GRS-2013-0007-0007, promulgated by the National Archives and Records Administration (NARA) as part of NARA General Records Schedule 4.2, item 090. Pursuant to this section of the GRS, this request (including all of the supporting information incorporated within this request, all of which is integral to the request) must be retained by you at least as long as the record to which it pertains is retained, which pursuant to Records Schedule DAA-GRS-2013-0007-0007 for records included in RCV is until I reach age 85.

Keep in mind that the purpose of a Privacy Act request for amendment of SSS records to request a particular classification is not to get the SSS to act on the claim for deferment or exemption — which it won’t do — but solely to force the SSS to keep a record that the claim was made, and of whatever documents were submitted with the Privacy Act request, for whatever evidentiary value these may have, for better or worse, in later administrative or court proceedings.

The SSS will respond to any such request with a summary notice that the request has been denied because you have not been classified and no claims are being accepted or processed:

[“Determination of a person’s status as a conscientious objector is part of a classification process whihc is not in effect at this time. We cannot accept unsolicited documents pertaining to any classification. We are returning your letter.” SSS standard response letter L005, “Conscientious Objector - Claim”, p. 27 of the SSS Registrant Inquiries Manual.]

Appeal of denial of request for amendment

In order to get the right to add a statement of dispute to your record (see below), you must next submit an administrative appeal of the denial of your Privacy Act request to the Director of the SSS within 180 days of the notice of denial. Like the initial request, this must be worded explicitly in terms of the Privacy Act:

Pursuant to the Privacy Act of 1974 (5 U.S.C. §552a) and regulations of the Selective Service System at 32 CFR § 1665.5, I hereby request review of the denial of my request dated ______ for amendment of the records pertaining to me which are contained in the Registration, Compliance and Verification (RCV) System. According to the notice of denial of my request dated _______, my request was denied because I have not been classified and no claim has been accepted. However, the records pertaining to me are incomplete and/or inaccurate in failing to record that, whether or not my claim has been “accepted”, I have requested classification as a conscientious objector (1-O), and in failing to record the details of that claim including the supporting evidence incorporated in that claim.

An incidental benefit of submitting such an administrative appeal, in the eyes of some registrants, is that it will force another person at SSS headquarters to read (or at least skim) the appeal and the original request.

Like the original request for amendment, this appeal will be summarily denied.

Notice of disputed record

Once your administrative appeal is denied, you have the right to put a “concise” statement in your SSS record indicating that you dispute the record, and why you dispute it. The Privacy Act requires the SSS to keep this notation in their records and include it whenever it discloses information from your record.

The SSS may not be prepared to comply with these requirements of the Privacy Act, so it is probably best to remind them of their obligations when you submit your request for a notice of dispute:

Pursuant to the Privacy Act of 1974 (5 U.S.C. §552a) and regulations of the Selective Service System at 32 CFR § 1665.5, I hereby request that you add the following concise statement of dispute to your records pertaining to me, and include it whenever information pertaining to me is disclosed: “This record is disputed because it does not indicate that I have requested classification as a conscientious objector.” If any member of the public requests information concerning my Selective Service registration or status, the Privacy Act requires you to inform them that your records about me are disputed because they do not indicate that I have requested classification as a conscientious objector.

I would welcome feedback from anyone who has gone through this process or assisted others to do so.

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This page most recently modified 18 August 2022. This site is maintained by Edward Hasbrouck. Corrections, contributions (articles, graphics, photos, videos, links, etc.), and feedback are welcomed.