Legal Barriers to Sharing Census Information
The US Census Bureau relies on public trust in order to make an accurate count of the US population every ten years. Efforts to modernize data collection and political concerns about data use may call into question the security of information given to census collectors and inputted through an online portal. However, no matter the collection method, census data is protected under Title 13 U.S.C. § 9, which states that
“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… (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.”
In other words, information that is provided to the Census Bureau cannot be used as the grounds for arrest, and violation of the confidentiality of a respondent is a federal crime with penalties including a prison sentence of up to five years and a fine of up to $250,000. The Census Bureau takes data privacy very seriously, and legally there is no jeopardy that can come to someone from filling out the census accurately. Title 13 even covers copies of the census form that are retained privately, meaning a copy of your census form cannot be used against you by law enforcement.
In addition to this, the Supreme Court ruled in 1982 that the Census Bureau does not have to share address lists through civil discovery or Freedom of Information Act requests. The Chief Justice, Warren E. Burger, said in the decision that the history of the census shows Congress has a strong intent to protect confidentiality by not sharing raw census data.
One of the most foremost concerns in preparation for the next census is online data security. In 2013, the decision was made that the primary mode of collection for the 2020 Census would be through an internet portal. While the Census Bureau began using internet portals for the American Community Survey (ACS) in 2013, the 2020 Census will provide a much larger test than the 250,000 households that receive the ACS. Because the Census Bureau stores Personally Identifiable Information (PII) for every recorded citizen, it is possible that foreign entities or hackers will attempt to gain access to the internet-based data.
In the Executive Summary of the 2020 Census Operational Plan, the Census Bureau figured that a cyber security incident was moderately likely, and while the organization is contracting with third-party testers to perform threat and vulnerability analysis, a breach of census data would be the worst case scenario for data privacy. As such, the Census Bureau is working with the Department of Homeland Security to implement its security system, known as EINSTEIN. This program detects and blocks cyber-attacks, preventing them from compromising federal agencies. EINSTEIN also provides real-time information about cyber-attacks against agencies to strengthen the protection systems in all government security systems. With these protection measures in place, a data breach is unlikely.
Federal Use of Census Data
Another potential risk to census privacy is the potential use of data about race and addresses to target raids of communities of color by the Department of Immigration and Customs Enforcement (ICE). A draft Executive Order in January 2017 called for the use of questions to determine US citizenship and immigration status on the “long-form questionnaire in the Decennial Census” heightened fears related to political privacy. However, the “long-form” census was discontinued in 2005 and replaced by the American Community Survey. As such, there has been no recent reporting about this draft Executive Summary.
Also adding to privacy concerns was the 2004 release of Zip Code level information about the number of Arab Americans in an area which was given to the Department of Homeland Security during the peak of the War on Terror. However, as census information was also made publicly available, the Department of Homeland Security could have easily compiled the data on its own and no PII was shared. There are laws in place that protect the privacy of PII from release to other government agencies, though, and immigration status is not asked on the census form. Under current US law and precedents, the Census Bureau is not legally allowed to share your PII, and even with the recent change in the administration, it is unlikely that this will ever change.
In 1953, President Truman’s Secret Service team needed to vet residents of a neighborhood he was moving into during White House renovations. The Secret Service requested information about the residents from the Census Bureau and were denied access. Perhaps even more dramatic, in 1980, the FBI showed up at a Census Bureau field office with a search warrant authorizing the seizure of census documents. The FBI was investigating a crime against the Census Bureau itself, an enumerator was accused of falsifying records. However, the census employees refused to break the confidentiality of the US Census and refused access. The situation was resolved by their superiors.
Privacy’s Effect on Participation
Concerns about census confidentiality have a smaller effect on overall census participation than you may think, at least in recent censuses. Every census, a number of people don’t respond to the survey, or refrain from responding to certain demographic questions in an attempt to conceal their identity. Overall, the 2010 Census is reported to have over counted the population of the United States by about 36,000 people; most of this error, however, is due to duplications, and shadows the undercounting of those who live in multifamily units, those who live on reservations, African Americans, Hispanics, and renters (Census Bureau, 2012). Studies of the 2000 and 1990 censuses found that concerns over the confidentiality of census data, although more correlated with not returning census forms than general privacy concerns, were not that determinant in census response rates. Anecdotally, there is a growing concern that rising distrust in government may impact peoples’ willingness to respond to this census. Low response rates may result in an undercount, which would have a detrimental effect on congressional apportionment and the disbursement of federal and state funds. It remains to be seen how large of an impact these factors will have on response rates in the 2020 Census.
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