The United States Constitution authorized the federal government to conduct a decennial census. Article 1, Section 2, states that, “[An] Enumeration shall be made … within every … Term of ten Years, in such Manner as [Congress] shall by Law direct.” Twenty ten is, of course one of the decennial census years. With both mistrust of the powers of the federal government and fears of privacy violations, some people are refusing to return census forms, in violation of federal law. In response, the Census Bureau assures the population that census information is private, protected and secure. But is it?
First off, I am not one of those paranoid people who believe that, in filling out the Census forms, black helicopters will swoop down and surround me. Nor do I believe that the government will use the Census forms for particularly nefarious purposes – unless you include federal funding as nefarious. Indeed, I filled out my form in about two minutes, and popped it into the mailbox with reckless abandon. Sure, the government used Census records during World War II to locate Japanese Americans for interment camps. Sure, General Sherman used Census records to identify population centers during his 1864 march to the sea. But this was under a different legal regime. Certainly the government couldn’t use these records again – or could they? The Government’s Promise The Census Bureau points out that individual census forms are protected by law. Title 13 United States Code Section 9 provides:
(a) Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, or local government census liaison, may, except as provided in section 8 or 16 or chapter 10 of this title or section 210 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 or section 2(f) of the Census of Agriculture Act of 1997 – (1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied; or (2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or (3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports. No department, bureau, agency, officer, or employee of the Government, except the Secretary in carrying out the purposes of this title, shall require, for any reason, copies of census reports which have been retained by any such establishment or individual. Copies of census reports which have been so retained shall be immune from legal process, and shall not, without the consent of the individual or establishment concerned, be admitted as evidence or used for any purpose in any action, suit, or other judicial or administrative proceeding.
• Private Information is Never Published It is against the law to disclose or publish any private information that identifies an individual or business such as: o No names o No addresses including GPS Coordinates o No Social Security Numbers o No telephone numbers
• We Collect Information to Produce Statistics We use your information to produce statistics. Your personal information cannot be used against you by any government agency or court.
• Sworn for Life to Protect Your Confidentiality Every person with access to your information is sworn for life to protect your confidentiality.
• Violating the Law is a Serious Crime If anyone violates this law, it is a federal crime; they will face severe penalties, including a federal prison sentence of up to five years, a fine of up to $250,000, or both.
The policy also notes that census workers are sworn to a strict oath which says: I will not disclose any information contained in the schedules, lists, or statements obtained for or prepared by the Census Bureau to any person or persons either during or after employment. The Bureau goes on to say http://www.census.gov/privacy/data_protection/our_privacy_principles.html:
• We promise that every person with access to your information is sworn for life to protect your confidentiality.
• We promise that we will use every technology, statistical methodology, and physical security procedure at our disposal to protect your information.
Sounds pretty good. Your information is safe and secure, It will NEVER be disclosed. All technologies will be used to protect it. Census workers will NEVER disclose the information TO ANYONE. Unfortunately, every one of these statements is both false and misleading. Not in an “evil” or “black helicopter” way. But in the same way that companies who inelegantly draft privacy policies or statements frequently and unnecessarily promise much more than they intend to or can deliver. Writing Privacy Policies Part of my legal practice is to help companies draft both internal and external privacy policies. Internal privacy policies are designed to help companies protect data and set out the rules for when they can monitor employee’s e-mail, phone calls, twitter feeds and the like. External privacy policies relate to the kinds of information they may collect about clients or customers, third parties, business partners and the like, and how they will use and protect that information. In drafting such policies, I invariably advice companies to avoid declarative statements like “we will never use your information for ….”
YOUR INFORMATION WILL NEVER BE PUBLISHED.
This now implies that every postal worker (who carries the letters), every government contractor, every records storage facility worker, every data storage or ISP that has access to the information has taken such an oath. Every single one. Oh, and lets not forget all the people who have access to the information after 72 years. They too have to take that oath – for life. One problem here lies with the definition of the term “access” to your information. Does this mean “authorized access?” Does this include physical access? Does it include the ability to see information contained in the forms? Without defining the terms, the oath requirement is meaningless. Every Technology Finally and most disturbingly is the promise that the Census Bureau “will use every technology, statistical methodology, and physical security procedure at our disposal to protect your information.” Really? The budget for the Census Bureau for 2010 is estimated at $7.4 billion. That puts and awful lot of technology “at their disposal.” Moreover, as time goes on, more technology will become “at their disposal.” And they promised to use EVERY technology – not just the good ones, or the effective ones or the reasonable ones. They COULD technologically shoot all census forms off to the Moon for protection. In theory. It’s a silly silly promise which is wholly unnecessary. All that people would ask is that the Census Bureau use appropriate technologies to protect the data, and reexamine these technologies in light of changes in the threat environment and capabilities. But they have promised to use EVERY technology. So does a respondent have any recourse when the government breaches each and every one of these promises –which in invariably will? Probably not.
You see, while the promises are intended to induce you to fill out the census forms, and if used in a consumer context would constitute “unfair and deceptive trade practices” a resondent is not entitled to rely upon these promises since they are legally mandated to complete the form irrespective of the promises of privacy. Thus, the privacy promises are doubly silly. And that I promise you.
M D Rasch