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 “responsibility to detect and prevent fraud.”
SSDI pays monthly benefits to people who cannot regularly work because of a disability expected to last at least one year or result in death. Those who are working and earn an average of $1,220 or more per month do not generally qualify for SSDI benefits. The program also requires applicants to have worked and contributed a certain amount to Social Security before applying for benefits, adjusted for the applicant’s age.
As the New York Times reported, 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 have placed great emphasis on allegedly rampant fraud and abuse within SSDI.
‘Rampant’ Fraud Under One Percent
Right now, it is not routine for disability examiners to look at SSDI applicants’ social media. However, the SSA Office of the Inspector General (OIG) does sometimes use recipients’ social media to corroborate information from other sources in fraud investigations. In 2014, Reuters reported social media was used to “help arrest more than one hundred people who defrauded SSDI out of millions of dollars.”
Yet such fraud is hardly widespread within the program. In each of the last three years, the rate of overpayments for all SSA programs was well under one percent of benefits payouts. Overpayments include not only fraud, but administrative delays and errors.
Everyone Lies on Facebook
Social media posts do not always create an accurate picture of someone’s disability. Even among the able-bodied, users of social media frequently embellish their lives. Suppose an applicant with limited mobility posts a photo today of them waterskiing. The photo may not be recent at all. It could have been taken before the applicant became disabled, or before their condition worsened to the point where they could no longer work.
For SSDI applicants with a chronic illness, this reality becomes even more complicated. Many chronic illnesses involve periods of remission and “flareups”, 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, 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 “literal lifeline,” providing much-needed social interaction.
Online Surveillance Suppresses Speech
The SSA’s monitoring of social media is already leading to a chilling effect on the online speech of SSDI recipients and applicants. Lawyers specializing in Social Security claims advise recipients of SSDI and those in the process of making a claim to be careful what they post on social media. While the SSA has rules to prohibit judges and disability examiners for searching the internet for information on SSDI applicants, attorneys warn “that doesn’t mean it never happens.”
Law firm webpages warn claimants to increase their privacy settings, avoid talking to strangers on social media, and to not post pictures of an active lifestyle, regardless of the date they were taken. One firm specifically warns, “[i]nnocent comments you make about your weekend could end up as evidence used against you to deny your application.”
Through its chilling effect on online speech, social media monitoring by the SSA infringes on the First Amendment rights of SSDI applicants and recipients. Should the proposal to officially monitor applicants’ social media go into place, this chilling effect will only increase.
Examples of the SSA using social media posts in fraud investigations are currently rare. And anecdotal stories of disability examiners or judges denying an SSDI claim based on perceptions colored by the applicant’s social media are difficult to verify. However, the Trump administration is urging systematic review of both applicants’ and current recipients’ social media.
As the Supreme Court found in NAACP v. Button, “the threat of sanctions may deter [the exercise of free speech] almost as potently as the actual application of sanctions.” 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.
But It’s Difficult to Sue
Unfortunately, legally, it may not be that simple. The Supreme Court in Laird v Tatum held that plaintiffs did not have standing to sue alleging a violation of their First Amendment rights on a surveillance policy’s “chilling effect” alone. The plaintiffs would have to show specific action taken against them.
Thus, any potential plaintiff will have to distinguish Laird to even have standing to sue. This is true whether they plan to sue the SSA over its current use of social media in fraud investigations, or the new proposed policy of applicants’ surveillance (if it goes into effect).
A plaintiff whose disability meets the criteria for SSDI would have to prove their claim was denied or their benefits revoked because of a social media post. Someone whose SSDI has not been denied or revoked, or for whom the reason was not clear, could not show “specific action” against them under Laird.
Monitoring the online posts of disability benefits applicants for evidence of fraud sounds like something out of a dystopian sci-fi novel. Data indicate the fraud this proposal intends to address has little impact on the efficiency of the program. Yet people who need SSDI benefits to live will self-censor online under the threat that if they appear too able to an outside observer, they may be denied these benefits. This infringes on the First Amendment rights of SSDI applicants and recipients.