Census time heightens privacy concerns

As the 2010 census gets under way, critics spurred by a distrust of government data collection can also draw on issues raised about methods and policies in the digital era.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
7 min read

When a census worker visited Oliver Sarle's home in Warwick, R.I., the crusty farmer refused to answer a series of questions, including how much revenue his crops had generated the previous year and how many gallons of milk his cows had produced.

Sarle was charged with a misdemeanor: not answering questions posed by an official representative of the census. A Rhode Island judge sided with the government, ruling that the "information required by the statute to be collected must be assumed to be important and necessary for the public service."

The year was 1890, but the same sentiment is alive today. A similar distrust of government data collection, coupled with a wariness of the privacy and security threats raised by an extensive electronic compilation of personal data, has given rise to concerns about the procedures used in the 2010 census.

A Zogby poll released last week reveals that 49 percent of Americans are not confident that their data will be kept confidential, while only 46 percent believe it will be. Some illegal immigrants worry that their census forms will be shared with Homeland Security and lead to deportation. And conservatives including Ron Paul, the former Republican presidential candidate, say questions like race and homeownership have no basis in the U.S. Constitution; a YouTube video making those arguments has received 1.7 million views since it was posted last month.

"The questions and concerns are legitimate," says Jay Stanley, a spokesman for the ACLU's Technology and Liberty Program. "If they're increasing, it's because a lot of people are more sensitized to privacy. They realize that if you share information with one organization, it doesn't necessarily stay with that organization. People are becoming more sophisticated about these things."

Two new concerns have arisen since the census of 2000, which prompted then-Senate Majority Leader Trent Lott, a Republican, to suggest that Americans might want to skip questions they thought were prying. The first is a new mail-tracking system provided by the Post Office that can identify when individual census forms have been delivered and highlight when addresses have changed. Then there's the growing interest in what's called "re-identification," meaning extracting identities from anonymous data sets such as those released by the Census Bureau. Researchers have pulled off that sort of trick with data released by AOL and Netflix.

The standard 2010 Census form, be sent to virtually every American household, asks about sex, race, age, phone number, and address. A subset of Americans also will receive a 14-page form (PDF) that is sent out every year and is much more intrusive: it asks about relationships, rent and mortgage costs, the value of the home, languages spoken at home, "emotional condition," job absences, and sources of income. Anyone not answering can be fined.

For its part, the Census Bureau insists that the information it collects will remain private. "We depend on your cooperation and trust, and promise to protect the confidentiality of your information," the agency says. In addition, federal law says that any Census employee who "publishes or communicates" confidential information can be fined up to $5,000 or imprisoned for up to five years.

Census data shared in WWII

Skeptics point out that Congress may alter that law at any time, or a president could claim that his wartime powers as commander in chief trump prohibitions against disclosure. And in fact, the Census Bureau and Congress have lifted the veil of confidentiality before.

During World War II, the Census Bureau divulged confidential data about Japanese-Americans that may have helped in efforts to force them into interment camps. "We're by law required to keep confidential information by individuals," Census Director J.C. Capt said in a January 1942 staff meeting, using the ethnic terminology of the time. "But in the end, if the defense authorities found 200 Japs missing and they wanted the names of the Japs in that area, I would give them further means of checking individuals."

Census tech: When punch cards reigned

See all photos

Two months later, Congress approved a law called the Second War Powers Act requiring precisely that. It eliminated existing confidentiality requirements and ordered the Census Bureau to make "any information or data" it collected on Americans available to other government agencies. Any bureau employee not cooperating faced criminal penalties.

Much of today's understanding of these disclosures comes from William Seltzer, a senior research scholar at Fordham University, and Margo Anderson, a history professor at the University of Wisconsin, who have delved into the bureau's occasionally murky past. Their 2007 paper reveals that the Secret Service asked for and obtained a list of "all known Japanese" in the Washington, D.C. area, including their names, ages, employers, and home addresses.

The bureau also agreed to give "certain confidential records" to the FBI if it was reimbursed for its costs. After the Second War Powers Act expired in March 1947, the FBI continued to press for data, but with less success. "Efforts by the Justice Department and numerous federal regularity agencies to breach statistical confidentiality at the Census Bureau and elsewhere in the federal statistical system continued for at least another two decades," Seltzer and Anderson write.

The possibility of history repeating is one motivation for critics of the 2010 census, forms for which began to arrive last week.

Mary Theroux, a vice president at the free-market Independent Institute in Oakland, Calif., wrote an op-ed for the Tallahassee Democrat newspaper a few days ago arguing that history "shows that the information provided to the Census can be used against you."

After it appeared, Theroux told CNET, it led "to the Florida governor's office contacting the Census Bureau to ask if what I said was true. Needless to say, the Census Bureau wasn't happy about it."

Since the last census, documents obtained by the Electronic Privacy Information Act in 2004 show that the Census Bureau provided the Department of Homeland Security with statistical information about people who identified themselves as being of Arab ancestry. And examples from Europe show that census data can, in some cases, be misused by governments that wish to target ethnic or religious minorities.

What the Constitution requires

Article I, Section 2 of the U.S. Constitution grants Congress the power to make an "actual enumeration"--a national head count, in other words--"within every subsequent term of ten years, in such manner as they shall by law direct."

Even in the census-skeptic movement, there seems to be general agreement that asking each American household to report how many people live there is both reasonable and constitutional. The concerns arise from the more detailed questions found both on the short form and the long form, now called the American Community Survey.

"A great many people are concerned about the privacy issues, much more than in years past," says Jerry Day, a producer in Burbank, Calif., who created the YouTube video last month. "I believe this is due to the fact that people are reluctant to share information with a government that now wiretaps, tortures, assassinates, arrests and imprisons people globally."

Similarly, the Libertarian Party said last week that the government should only collect "one piece of information about each residence: the number of persons living in it." The ACLU believes the only legitimate questions are name, address, and in some cases race and ethnicity; Rep. Michele Bachmann, a Minnesota Republican, has said that she and her family will not fully complete the 2010 census form.

The practical problem with those arguments, however, is that courts have taken a dim view of census protesters.

Federal law says that anyone who "refuses or willfully neglects" to answer census questions faces at least a $100 fine and is guilty of a misdemeanor; a 1984 law upped the maximum penalty to $5,000. Providing false answers is punished by a $500 fine, and, in some circumstances, can yield a one-year prison sentence.

Courts: You must comply

From the case of Sarle over a century ago until today, not one judge appears to have ruled that any census question--no matter how nosy--was unconstitutional. (Some of the criminal penalties that Sarle faced were removed in the 1970s.)

In a 1971 criminal prosecution of a Delaware man named Thomas Little, a federal judge concluded that "the defendant's privacy is not unreasonably invaded by requiring answers to the questions asked in the census schedule submitted to him." A federal appeals court in 1963 rejected arguments from William Rickenbacker, who was convicted in a one-day trial and sentenced to one day of probation and a $100 fine after saying he would not answer detailed questions. In an echo of today's census protesters, Rickenbacker called it "an unnecessary invasion of my privacy" and said he wanted "to maintain liberties in this country as a constitutional philosophical question."

A 2000 civil case brought by Edgar Morales and other plaintiffs against the Census Bureau claimed that there are "virtually no limits to the intrusiveness of census questions propounded by the government." A federal judge in Texas tossed out the case, saying "the degree to which these questions intrude upon an individual's privacy is limited," given the bureau's assurance of confidentiality.

A few legal tidbits offer a glimmer of hope to census protesters. There's U.S. v. Steele, a 1972 case in which a court concluded the Justice Department had engaged in "discriminatory prosecution" of an American citizen who refused to complete the form, even though it knew of many more examples of census lawlessness. And a concurrence by Justice Antonin Scalia in a 1999 case hints that some kinds of data-collection techniques by the Census Bureau could be unconstitutional.

That isn't stopping the Independent Institute's Theroux from saying that, as in previous years, she will refuse to answer the bureau's questions on paper or if someone visits her house in person. In 2000, Theroux said, "one morning I came out of the house and the census worker was in our driveway interviewing workmen who were doing some work on our house, so I told him, 'Four human beings live here. That's all you need to know. Leave.'"