UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
VIETNAM VETERANS OF AMERICA, et al.,
Plaintiffs,
v.
DEPARTMENT OF DEFENSE, et al.,
Defendants.
Case No. l 7-cv-730-LJV
SETTLEMENT AGREEMENT
WHEREAS the parties desire to resolve amicably all claims raised in this suit without
admission of liability;
WHEREAS the Servicemembers Civil Relief Act ("SCRA") is a federal law designed to
ease financial burdens on servicemembers during periods of military service. See 50 U.S.C. §§
3901-4043;
WHEREAS the SCRA provides protections for military members as they enter active
duty. See id.;
WHEREAS the SCRA covers issues such as rental agreements, security deposits, prepaid
rent, evictions, installment contracts, credit card interest rates, mortgage interest rates, mortgage
foreclosures, civil judicial proceedings, automobile leases, life insurance, health insurance and
income tax payments. See id. ;
WHEREAS Defendants operate a website for the purpose of allowing persons or entities
engaged in financial and legal transactions with servicemembers to verify a servicemembers'
eligibility for the benefits provided by the SCRA;
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WHEREAS Plaintiffs brought suit under the Privacy Act and related laws to ensure that
Defendants prevent disclosure of personal information through the website to individuals or
entities for purposes of marketing, datamining, commercial profit, frauds, scams or any other
purposes other than verifying servicemembers' eligibility for the benefits provided by the SCRA.
WHEREAS Defendants have agreed to make significant changes to the SCRA website to
enhance security of the site and better protect the personal information of servicemembers while
restricting access, pursuant to the website's Terms of Use, to those individuals and entities who
are using the website for its intended purpose, so as to ensure the website achieves its intended
purpose.
NOW THEREFORE, the Vietnam Veterans of America, Vietnam Veterans of America
New York State Council, Vietnam Veterans of America Chapter 77 and Thomas Barden
(collectively "Plaintiffs"} and the Department of Defense, Mark Esper, in his official capacity as
Secretary of Defense, Dana W. White, in her official capacity as the Assistant to the Secretary of
Defense for Public Affairs, James N. Stewart, in his official capacity as Assistant Secretary of
Defense for Manpower and Reserve Affairs Performing the Duties of Under Secretary of
Defense for Personnel and Readiness, William H. Booth, in his official capacity as Director of
the Defense Human Resources Activity, Michael V. Sorrento, in his official capacity as Director
of the Defense Manpower Data Center, and the United States (collectively "Defendants"), in
consideration of the mutual agreements set forth below, agree as follows:
A. DEFINITIONS
a. "Multiple record searches" or "batch searches" refers to searches conducted
using the "Multiple Record Request" capability of the SCRA website, in
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which a user uploads a text file of records for the system to match against the
SCRA database.
b. "Servicemembers Civil Relief Act" ("SCRA") refers to the law designed to
ease financial burdens on servicemembers during periods of military service,
and is codified at 50 U.S.C. §§ 3901-4043.
c. "SCRA website" refers to the website, currently located at
https://scra.dmdc.osd.mi llscra/#/home, which allows users to determine Title
10 active duty status of an individual for provisions under the SCRA.
d. "Single record searches" refers to searches conducted using the "Single
Record Request" capability of the SCRA website, in which a user types in the
identifying information of a single individual for the system to match against
the SCRA database.
B. TERMS OF USE:
Defendants agree to implement a Terms of Use using language to which the parties have
agreed to (as reflected in Appendix A to this agreement). The Terms of Use will define the
authorized use of the SCRA website, will warn of potential account termination in the event of
misuse, mention potential criminal penalties that may be enforced by other en~ities, and be
featured on the search page itself. Users will have to affirmatively accept the Terms of Use in
order to submit searches to the SCRA website. The parties agree that all requirements in this
paragraph will be implemented within 3 months of settlement.
C. ACCOUNT CREATION PROCESS:
Defendants agree that all users will be required to register for an account on the SCRA
website in order to run searches on the SCRA website. This will include both single-record
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searches and multiple-record, or ''batch'' searches. Defendants agree that they will collect the
name, mailing address, and company name (if applicable) of every user as part of the account
creation process. The parties agree that all requirements in this paragraph will be implemented
on or before October 31, 2019.
D. LANGUAGE ABOUT SOCIAL SECURITY NUMBER:
Defendants agree to make changes to the SCRA Website interface to make clear that a
social security number is not required in order to access SCRA information. The intent of this
change is to discourage collection of social security numbers from third party users of the SCRA
website for the sole purpose of SCRA verification. The agreed-upon changes to the website are
reflected in Appendix B to this agreement. The parties agree that Defendants will make these
changes within 3 months of settlement.
E. PUBLIC NOTIFICATION OF CHANGES:
Defendants agree to post a reasonable notification on the SCRA website highlighting why
changes are being made to the SCRA website. This notification will state that the changes are
intended to prohibit misuse, including for non-SCRA commercial purposes. The agreed-upon
language is reflected in Appendix C to this agreement. The parties agree that Defendants will
post this notification within 3 months of settlement.
F. BACK-END ANALYTICS:
Defendants agree to implement analytics to monitor the use of the SCRA website in order
to identify, among other things, patterns of misuse that would indicate a user is attempting to
misuse the database. These analytics will include automatically flagging accounts that are
searching for name/social security matches by running the same name against multiple social
security numbers (or vice versa). The parties agree that the procedure described in in this
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paragraph will be implemented on or before October 31, 2019, although, due to technical
limitations, the analytics will not report results until December 31, 2019.
G. ACCOUNT DEACTIVATION PROCEDURE:
Defendants agree to adopt a procedure that may be utilized when Defendants suspect
misuse of the SCRA website by a third party. The procedure will include procedures for
investigating potential misuse and for deactivation of accounts. Defendants will allow Plaintiffs
to comment on the draft procedure before it is finalized. When the procedure is finalized,
Defendants agree to provide a copy of the written procedure and information on the internal
protocol that is used for enforcement. The parties agree that Defendants will provide Plaintiffs a
copy of the draft procedure on or before September 1, 2019. Plaintiffs will provide comments, if
any, on or before September 21, 2019. The parties agree that all other requirements in this
paragraph will be implemented on or before October 31, 2019.
H. SYSTEM OF RECORDS NOTICE:
Defendants will publish a new System of Records Notice ("SORN") in the Federal
Register that specifies the circumstances in which information may be disclosed through the
SCRA Website. Defendants agree to provide Plaintiffs updates on the progress of publishing the
SORN through the Federal Register every sixty days until the publication of the new SORN,
with the first update being on the date the settlement becomes effective.
I. REPORTING
Subject to applicable laws and regulations, including the Privacy Act, Defendants will
provide quarterly reports to the Plaintiffs that will provide the following: ( 1) list of the company
names of active users; (2) information on volume of searches per active user; (3) the number of
suspected and terminated accounts; ( 4) the company names of suspended and terminated
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accounts, so long as those company names would not identify individuals; and (5) description of
the "back-end analytics" that have been implemented and the results thereof. The first report
will be provided within 3 months of the date that the settlement is executed, and the final report
will be provided two years after Defendants notify Plaintiffs that the final element of the
settlement agreement has been implemented.
J. ATTORNEY FEES
Defendants will pay Plaintiffs the amount of seven thousand seven hundred and fifty
three dollars ($7, 753) via electronic funds transfer. This payment shall constitute full and final
satisfaction of any and all of Plaintiffs claims in the above-captioned action, including for
attorney's fees, costs, and litigation expenses, and is inclusive of any interest. Plaintiffs will
provide Defendants, no later than the execution of this Settlement Agreement, with all necessary
information required to make the electronic funds transfer.
K. MODIFICATION
The parties recognize that Defendants are required to comply with applicable statutes and
regulations. The parties recognize that nothing in this Settlement Agreement shall prohibit
Defendants from making changes to the SCRA Website or policies regarding the Website
consistent with this agreement, including technical fixes, security updates, etc.
L. DISCHARGE OF CLAIMS AND DISMISSAL WITH PREJUDICE
i. Upon execution of this Settlement Agreement, Plaintiffs hereby release and
forever discharge Defendants and their successors, the United States of America,
and any department, agency, or establishment of the United States, and any
officers, employees, agents, successors, or assigns of such department, agency, or
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establishment, from any and all past, present, or future claims for attorney's fees,
costs, or litigation expenses in connection with the above-captioned litigation.
11. Upon the execution of this Settlement Agreement, Plaintiffs hereby release and
forever discharge Defendants, and their successors, the United States of America,
and any department, agency, or establishment of the United States, and any
officers, employees, agents, successors, or assigns of such department, agency, or
establishment, from any and all claims and causes of action that Plaintiffs assert
or could have asserted in this litigation, or which hereinafter could be asserted by
reason of, or with respect to, or in connection with, or which arise out of, the
FOIA l 7-F-1139 request on which this action is partially based or the causes of
action alleged in the Complaint. Nothing in this settlement limits Plaintiffs'
ability to bring suit against Defendants and their successors for future violations
of the Privacy Act or other laws on the basis of facts unrelated to the SCRA
Website or on the basis of facts that arise after the date on which the final element
of the settlement agreement is implemented.
111. Concurrent with the execution of this Settlement Agreement, Plaintiffs' counsel
shall seek the dismissal of this case with prejudice pursuant to Fed. R. Civ. P.
41 (a) by filing the Stipulation of Dismissal with Prejudice attached hereto.
M. COUNTERPARTS AND EFFECTIVE DATE
The terms of this Settlement Agreement and any attachments thereto are the exclusive
and full agreement of the Parties with respect to all claims for declaratory and injunctive relief
and attorney's fees and costs as set forth in this Settlement Agreement and in the Complaint. No
representations or inducements or promises to compromise in this action or enter into this
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Settlement Agreement have been made, other than those recited or referenced in this Settlement
Agreement.
This Settlement Agreement may be executed in counterparts, and is effective on the date
by which both parties have executed this Agreement. Facsimiles and pdf versions of signatures
will constitute acceptable, binding signatures for purposes of this Agreement.
N. FULL AUTHORITY TO SIGN AND CONSULT A TI ON WITH COUNSEL
Each person signing this Settlement Agreement represents and warrants that he or she has
full authority to execute the Settlement Agreement on behalf of himself or herself, or on behalf
of the party or entity on whose behalf he or she signs this Settlement Agreement. Plaintiffs
acknowledge that they have discussed this Settlement Agreement with their counsel, who has
explained these documents to them, and that they understand all of the terms and conditions of
this Settlement Agreement. Plaintiffs further acknowledge that they have read this Settlement
Agreement, understand the contents thereof, and execute this Settlement Agreement of their own
free act and deed. The undersigned represent that they are fully authorized to enter into this
agreement.
0. RULES OF CONSTRUCTION
This Settlement Agreement shall be considered a jointly drafted agreement and shall not
be construed against any party as the drafter.
This Settlement Agreement shall be construed in a manner to ensure its consistency with
federal law. Nothing contained in this Settlement Agreement shall impose upon Defendants any
duty, obligation, or requirement, the performance of which would be inconsistent with federal
statutes, rules, or regulations in effect at the time of such performance.
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The headings in this Settlement Agreement are for the convenience of the Parties only
and shall not limit, expand, modify, or aid in the interpretation or construction of this Settlement
Agreement.
SOSTIPULATEDANDAGREEDTHIS I"' dayof oc;o.~c(. 2019
Jonathan Manes, Supervising Attorney Civil Liberties and Transparency Clinic University at Buffalo School of Law 507 O'Brian Hall, North Campus Buffalo, NY 14260-1100 (716) 645-2167 (716) 645-6199 (Fax) [email protected]
Counsel for Plaint(ffs
JOSEPH H. HUNT Assistant Attorney General
ELIZABETH J. SHAPIRO
JOSEPH E. BORSON ANDREW E. CARMICHAEL Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washington, D.C. 20005 (202) 514-1944 (202) 616-8470 (Fax) [email protected]
Counselfor Defendants
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APPENDIX A
Terms of Use Agreement:
Permissible Uses: Access to this website is restricted to financial institutions, collection agencies, and others with financial and legal transactions with eligible service members for the sole purpose of ensuring that those service members receive Servicemembers Civil Relief Act (SCRA) protections in accordance with 50 U .S.C. Chapter 50. All other use is strictly prohibited.
VIOLATIONS OF THESE TERMS OF USE MAY RESULT IN IMMEDIATE TERMINATION OF ACCESS TO THE SERVICES OF THIS WEBSITE WITHOUT PRIOR NOTICE.
UNAUTHORIZED ACCESS MAY SUBJECT YOU TO CRIMINAL PENALTIES INCLUDING POTENTIAL FINES AND IMPRISONMENT IF YOU MAKE A FALSE REPRESENTATION TO GAIN ACCESS TO THE SERVICES OFFERED ON THIS WEBSITE OR OBTAIN INFORMATION UNDER FALSE PRETENSES. 18 U.S.C. § 1001
By clicking the box marked "I accept," you indicate that you have read and agree to the Terms of Use and that you certify, under penalty of perjury, that you are only using this website for the permissible uses identified in this Agreement.
o I Accept.
APPENDIX B
Social Security Number Disclaimer
*SSN is NOT required. Unless you are a financial institution or otherwise required to collect SSNs, you should not require individuals to provide you with their SSN for the sole purpose of conducting a query on this website. Searches can be conducted using Name and Date of Birth alone. Providing additional details such as First Name, Middle Name, or SSN, if already known, will increase the accuracy of the match.
APPENDIXC
Website:
"[On DATE], OMDC made significant changes to the SCRA website to enhance security of the site and better protect the personal information of servicemembers.
Pursuant to the Terms of Use for the SCRA website, access to this website and to the personal information accessible through the website, is restricted only to those with financial and legal transactions with servicemembers detailed in the Servicemembers Civil Relief Act (SCRA) and
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only for the purpose of verifying eligibility for SCRA benefits. All other uses, including datamining, marketing or other non-SCRA commercial uses are strictly prohibited.
In order to effectuate these rules, users of the site will not be permitted to access personal information unless they certify, under penalty of perjury, that they are seeking access to information for a permitted reason, as provided in the Terms of Use.
In addition, beginning in June 2019, all users of the site will be required to create user accounts. A user account will be required to access both the Single Record Request and the Multiple Record Request capabilities of the SCRA website. No search for active service on the SCRA website will be possible without a user account.
In addition to the username, password, company name, and challenge questions currently required to create a user account, beginning in June 2019, new SCRA website users will be required to supply the user's first name, last name, address, and e-mail address in order to create their user account.
Starting in early August 2019 existing SCRA website users will be required to update their accounts with the additional fields (user's first name, last name, address, and e-mail address).
DMDC appreciates the cooperation of SCRA website users as we implement improved security of the information of servicemembers."
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