RESULTS
OF REVIEW
AUTHORITY
TO MONITOR TELEPHONE CONVERSATIONS
Our review addresses conditions that existed while FIRMR applied,
discusses the effect of its rescission on SSA’s current authority
to monitor calls, and recommends actions that SSA should take in
the absence of regulations.
The Omnibus Crime Control and Safe Streets Act of 1968, as amended,
18 U.S.C. sections 2510-2522, prohibit the intentional interception
of telephone communication by means of any electronic, mechanical,
or other device. However, there are two exceptions to this general
prohibition: (1) consent exception; and (2) business telephone
exception.
Consent Exception - Under this exception,
it is permissible to intercept and record telephone conversations
if one or both of the parties to the communication has given prior
consent to the interception.
Business Telephone Exception - This exception
permits telephone monitoring in a business setting if: (1) the
telephone or telephone equipment has been provided by the telephone
company or by the subscriber for connection to the subscriber’s
telephone service; and (2) the telephone or telephone equipment
must be used in the ordinary course of business. This provision
generally permits employers to monitor business related calls of
their employees without their consent.
FIRMR section 201-21.603 provided additional restrictions to limit
the circumstances under which Federal agencies were authorized to
listen to or record telephone conversations. FIRMR required:
Consensual Listening In - Agencies may only listen
to or record calls when at least one party to a telephone conversation
knows it is happening or has given prior consent.
Public Service Monitoring - Agencies may only listen
to or record calls when performed by an agency official to determine
the quality of service, but only after an analysis of alternatives
and a written determination by the agency head or a designee that
telephone conversation monitoring is required to perform the agency
mission.
FIRMR also required that each agency that conducted listening in
or recording associated with public service monitoring establish
controls and issue written policies and procedures that provided
for:
- the agency head or designee to name in writing those agency officials
authorized to listen in to telephone conversations;
- continuous positive action to inform the public of monitoring;
- no recording of identifying information of the public callers;
- keeping the number of monitored calls to the minimum necessary
to obtain a statistically valid sample;
- conspicuous labeling of telephone instruments subject to monitoring;
- no use of the information obtained by monitoring against the
public party; and
- calling party consent for calls that are recorded.
Although FIRMR has been rescinded, we believe it recognized the
need to limit the circumstances for which monitoring is permitted
and provided Federal agencies essential guidelines to ensure it is
not abused. While SSA is no longer legally obligated to comply with
FIRMR, SSA officials informed us that it will continue to follow
it. We agree with that decision and believe that FIRMR provides a "best
business practice" necessary for the protection of privacy rights,
while at the same time allowing SSA to determine whether the public
is receiving world-class service.
SSA COMPLIANCE
WITH LAWS AND REGULATIONS
Consensual Monitoring
Under FIRMR
Section 201-21.603 (b) of FIRMR stated that it applied only to consensual
listening in of telephone conversations. This required that at least
one party to a telephone conversation knew it was happening or had
given prior consent. FIRMR also required SSA to establish controls
and written policies and procedures covering seven areas, three of
which pertain to obtaining consent. SSA was required to: (1) take
continuous positive action to inform the public of monitoring; (2)
place conspicuous labeling of telephone instruments subject to monitoring;
and (3) obtain calling party consent for calls that are recorded.
In analyzing the FIRMR provisions for consensual listening in of
telephone conversations, we reviewed case law interpreting the consent
requirements for telephone monitoring under 18 U.S.C. sections 2510-2520.
Based on our analysis of the case law, the determination of whether
someone has consented to the monitoring of their telephone conversations
is dependent on a number of factors. Consent may take one of two
forms, express or implied. Express consent is not difficult to establish
because one of the parties expressly agrees to the monitoring. Implied
consent, on the other hand, cannot be casually inferred and is more
difficult to establish. The circumstances giving rise to implied
consent ordinarily include language or acts which tend to prove or
disprove that a party knows of, or assents to, encroachments on the
routine expectation that conversations are private. In addition,
knowledge of the capability of monitoring alone cannot be considered
implied consent. Lastly, implied consent is not necessarily an all
or nothing proposition. It can be of a limited nature, such as a
consent to monitor business, but not personal calls.
Based on our review of SSA’s monitoring program, SSA may be
subject to legal challenges with respect to whether it has the necessary
employees’ or public’s consent. SSA does not obtain the
express consent to monitor telephone calls from either the employees
or the calling public. Consequently, the required consent must be
implied. Although there are several factors to suggest that consent
can be implied, there are additional factors to suggest that SSA
may not have the required consent to monitor calls.
Employee Consent--With respect to SSA employees, the
circumstances that support implied consent are:
- SSA usually requires that employees be notified when monitoring
will take place;
- SSA labels telephones that are subject to monitoring;
- SSA employees continue to use telephones that are subject to
monitoring; and
- SSA and AFGE have negotiated procedures for telephone monitoring.
However, there are circumstances that may not support a finding
of implied consent. They include:
- the monitoring of calls without notifying the employee;
- the SSA/AFGE MOU which expressly states that an employee’s
utilization of a telephone subject to service observation (monitoring)
will not be construed as consent to being service observed.
Public Consent--With respect to public consent, the
only notification to the public about monitoring is a brief statement
in SSA’s public information pamphlets that some telephone calls
may be monitored by a second SSA representative. Currently, an outside
caller to the SSA 800 number is given no notification of the possibility
of monitoring. We would agree that such notification might suffice
for any person who has actually read the SSA publications; however,
there is no legal requirement to read SSA publications. Consequently,
we do not believe that notification in SSA publications is evidence
of implied consent to telephone monitoring by every person who contacts
SSA.
In summary, SSA may have litigation risks in its telephone monitoring
practices. The implied consent from the public is questionable because
it is based on a presumed voluntary reading of SSA publications.
In addition, the implied consent obtained from SSA employees is questionable
in light of SSA’s monitoring practices which allow monitoring
without notice and SSA’s MOUs which acknowledge that employees’ utilization
of telephones should not be construed as implying employee consent.
Recommendation:
We recommend that SSA:
1. Take corrective actions to ensure that it meets the legal requirements
for consent. This could include actions such as:
- Modifying the SSA/AFGE MOUs with respect to the provision
on employees’ consent for monitoring telephone conversations.
- Including a message on the 800 number to request the consent
of the public to have their calls monitored.
SSA Comment
SSA believes the Office of the Inspector General’s (OIG) interpretation
of the statement concerning employees’ consent is inconsistent
with the purpose of the MOUs, which deal with the impact and implementation
of management’s decision to conduct service observations (monitoring).
SSA also remarked that it has begun the process of promulgating regulations
which will address concerns regarding the parties’ consent of
service observation.
OIG Response
The Commissioner’s authorization for monitoring telephone calls
at SSA states that it is for the conduct of consensual public service
monitoring. In addition, it also states that the authorization may
be used only after SSA has fulfilled its duty to bargain with the
AFGE. The applicable MOUs specify the agreements between SSA and
the AFGE with respect to telephone monitoring. A general provision
of the MOUs is that employees do not consent to being monitored.
Consequently, we continue to believe that any implied consent from
SSA employees is questionable. We believe this concern is best remedied
by either modifying the MOUs or by including a message on the 800
number to request the consent of the public to have their calls monitored.
Continuous
Positive Action to Inform the Public of Monitoring
FIRMR requires SSA to take continuous positive action to inform
the public of monitoring. FIRMR is silent as to what type of notice
is required. SSA believes that it satisfies this requirement by its
notification to the public through its public information pamphlets.
Certainly, SSA publications provide some notification to the public.
However, we disagree that this requirement of FIRMR is being met
by notification through SSA pamphlets. In addition, officials at
GSA stated that they believe SSA should have a pre-recorded message
on SSA’s 800 number to inform the public of monitoring since
many callers may never receive SSA’s public information pamphlets.
Recommendation:
We recommend that SSA:
2. Provide a message on the 800 number to satisfy the FIRMR requirement
of continuous positive action to inform the public of SSA’s
monitoring practice.
SSA Comment
SSA commented that since FIRMR has been repealed, there is no current
requirement for continuous positive action to inform the public of
monitoring. However, it is reconsidering whether it will provide
the recommended notice to the public.
OIG Response
We believe FIRMR recognized the actual and perceived effect of monitoring
telephone calls on the privacy rights of individuals. The requirement
for continuous positive notice to inform the public of monitoring
addressed those concerns. Although SSA is not legally obligated to
follow FIRMR, we believe the public has the right to know that their
calls are being monitored. A message on the 800 number provides the
best assurance that the public is aware that their calls may be monitored.
Minimum Sampling Requirement
FIRMR requires that SSA keep the number of monitored calls to the
minimum necessary to obtain a statistically valid sample. During
our review, we learned that SSA monitors calls in excess of the minimum
number necessary to obtain a statistically valid sample. SSA guidelines
for monitoring telephone conversations allow for unlimited monitoring
of TSRs’ calls for training purposes and for conduct problems.
As part of TSRs’ training, a unit supervisor will monitor up
to 100 percent of trainees’ calls in their first year on the
phone. They also have new TSRs listen to numerous calls of experienced
TSRs to learn how to best respond to calls. While we understand that
monitoring additional calls for trainees may be desirable, it is
not permitted by FIRMR. Unlimited monitoring of trainees exceeds
the minimum sampling requirements and is targeted at specific employees.
We believe SSA should address new TSRs’ proficiency in their
training program and that new TSRs should be fully trained before
answering calls from the public.
SSA will also monitor calls in excess of the minimum necessary when
it believes there is a conduct problem with a particular TSR, e.g.,
rudeness to the calling public. In these situations, supervisors
will monitor additional calls to evaluate the TSR’s courtesy.
This practice also is not permitted by FIRMR. The regulations do
not specify any circumstances for additional monitoring of calls
when conduct is a problem. We believe SSA can address problems with
rude behavior on the phone without monitoring numerous conversations.
The rude behavior can be easily noticed and addressed by a supervisor
walking through the unit and observing TSRs while on the phone.
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