Tag: census

The Census’ Broken Privacy Promise

When the 1940 census was collected, the public was reassured that the information it gathered would be kept private. “No one has access to your census record except you,” the public was told. President Franklin Roosevelt said: “There need be no fear that any disclosure will be made regarding any individual or his affairs.”

Apparently the limits of what the government can do with census information have their limits. Today the 1940 census goes online.

When the Census Bureau transferred the data to the National Archives, it agreed to release of the data 72 years after its collection. So much for those privacy promises.

Adam Marcus of Tech Freedom writes on C|Net:

Eighty-seven percent of Americans can find a direct family link to one or more of the 132+ million people listed on those rolls. The 1940 census included 65 questions, with an additional 16 questions asked of a random 5 percent sample of people. You can find out what your father did, how much he made, or if he was on the dole. You may be able to find out if your mother had an illegitimate child before she married your father.

To be sure, this data will open a fascinating trove for researchers into life 70 years ago. But the Federal Trade Commission would not recognize a “fascinating trove” exception if a private company were to release data it had collected under promises of confidentiality.

Government officials endlessly point the finger at the private sector for being a privacy scourge. Senator Al Franken did last week in a speech to the American Bar Association last week (text; Fisking). He’s the chairman of a Senate subcommittee dedicated to examining the defects in private sector information practices. Meanwhile, the federal government is building a massive data and analysis center to warehouse information hoovered from our private communications, and the Obama Administration recently extended to five years the amount of time it can retain private information about Americans under no suspicion of ties to terrorism.

Marcus has the bare minimum lesson to take from this episode: “Remember this in 2020.”

Experience Is a Good Teacher, But She Sends in Terrific Bills

[above quote attibuted to American writer Minna Thomas Antrim (1861-1950)]

The AP reports on trouble facing the Chinese census:

After years of reforms that have reduced the government’s once-pervasive involvement in most people’s lives, some Chinese are proving reluctant to give up personal information and harboring suspicions about what the government plans to do with their details.

The Census Asks Too Much

Everyone in America, I presume, has just received a letter from the U.S. Census Bureau urging us to fill out our Census forms. Seems like a very expensive way to tell us to watch for the form to arrive in the mail. But I’m particularly interested in why they say we should promptly fill out the form:

Your response is important. Results from the 2010 Census will be used to help each community get its fair share of [federal] government funds for highways, schools, health facilities, and many other programs you and your neighbors need. Without a complete, accurate census, your community may not receive its fair share.

Obviously this is a zero-sum game. If my neighbors and I all fill out the form, then you and your neighbors will get less from the common federal trough. But at least we’ll be getting our “fair share,” as the letter tells us twice in three sentences.

But where does the government get the authority to ask me my race, my age, and whether I have a mortgage? In fact, the Constitution authorizes the federal government to make an “actual enumeration” of the people in order to apportion seats in the House of Representatives. That’s all. Not to define and count us by race. Not to ask whether we’re homeowners or renters. Just to ask how many people live here, so they can apportion congressional seats.

I’m not interested in getting taxpayers around the country to pay for roads and schools and “many other programs” in my community. All the government needs to know from me is how many people live in my house. And I will tell them.

More on the census and the Constitution here.

The Census Meets the Patriot Act

The Washington Post reports that the Justice Department recently sent out a letter to the chairs of the Asian Pacific, black, and Hispanic caucuses in Congress, reassuring them that the Patriot Act’s expansion of information-gathering powers, including the controversial Section 215, does not override federal statutes guaranteeing the confidentiality of census data.  DOJ’s view, according to Assistant Attorney General Ronald Weich, is that “if Congress intended to override these protections, it would say so clearly and explicitly.”

Section 215, recall, is colloquially referred to as the “business records” provision of Patriot, though in fact it permits investigators to obtain “any tangible thing” from a designated person or entity by obtaining an order from the secret FISA court, subject only to a showing that the records sought are “relevant” to a national security investigation. As Weich observes, §215 does not contain the “notwithstanding any other law” language present in other parts of the Foreign Intelligence Surveillance Act, which means that it cannot be presumed on face to override other federal privacy statues establishing a higher degree of protection for specific categories of sensitive records. 

What’s interesting to me, however, is that a similar issue arose several years ago, not with respect to the census confidentiality statute, but rather the Family Educational Rights and Privacy Act (aka FERPA, aka the Buckley Amendment). Initially, DOJ attorneys similarly opted not to seek education records under §215 on the grounds that the FISA court might conclude FERPA trumped Patriot in the absence of language giving §215 explicit priority, as the Office of the Inspector General’s initial report on the use of §215 explains. Nevertheless, the Counsel for Intelligence Policy told OIG that his office “would have been willing to present an application to the FISA court for educational records if the FBI considered the information important enough and wanted to press the issue with the FISA Court.” 

Subsequent amendments to the statute alleviated those concerns:

According to [National Secrity Law Branch] and [Office of Intelligence Policy and Review] attorneys, this legal impediment to obtaining educational records has been addressed.  Section 106(a)(2) of the Reauthorization Act amended FISA by ading 50 U.S.C. §1861(a)(3), which specifically addresses educational, medical, tax and other sensitive categories of business records.  The amendment provided that when the FBI is requesting such items, the request must be personally approved by the FBI Director, the FBI Deputy Director, or the Executive Assistant Director for National Security. According to several NSLB and OPPR attorneys we interviewed, because this provision clarifies that educational records are obtainable through the use of a Section 215 order, the non-disclosure provisions of Section 215 apply rather than the notification provisions of the Buckley Amendment.

Census records, of course, are not mentioned, and the statutory language protecting those records from legal process is unusually strong and unqualified. On the other hand, neither does the amended language explicitly override the federal statutes protecting the specified categories of records. Rather, it adds a layer of oversight for several types of requests that are implied to fall within the scope of §215. Indeed, at the time, this portion of the Reauthorization Act was publicly portrayed as increasing protections for sensitive records.

That, at any rate, was the spin the Congressional Research Service gave it. Based on OIG’s account, it sounds as though a reform that had been painted as a concession to civil libertarians actually allowed the acquisition of those sensitive records for the first time, since they’d previously been regarded as off-limits by statute. So I suppose we should be glad they didn’t decide to simultaneously “enhance” the safeguards on census records.

Of course, that doesn’t mean it’s necessarily impossible for those records to ever be obtained via a §215 order. As Weich’s letter clearly says, the Census Act prohibits “the Commerce Secretary and other covered individuals from disclosing protected census information.” But as the Supreme Court clarified in St. Regis Paper v. United States, that confidentiality requirement is only binding on specific covered individuals.  If the government is able to get its hands on a copy of a census record by serving some non-covered individual, the record itself is not off limits.

Since I know approximately nothing about the fine points of record handling protocol within the Census Bureau, I can’t really say how much of a practical difference that makes. Still, given that we’ve seen statutory records protections effectively stripped away under the guise of enhancing those protections, I think it’s reasonable to infer that census records will be considered fair game under §215 if they can be obtained from a source other than the designated officials.

The Census: Constitutional but Very Costly

Most activities undertaken by the federal government have no constitutional basis. One exception is the Census carried out every 10 years to determine the allocation of seats in the House of Representatives. Alas, it appears that even this core federal function is subject to cost overruns and waste, as a new report from the Department of Commerce’s inspector general illustrates.

Quarterly updates of progress on the census by the inspector general were required by legislation in 2008, which gave the Census Bureau an additional $210 million “to help cover spiraling 2010 decennial costs stemming from the bureau’s problematic efforts to automate major field operations, major flaws in its cost-estimating methods, and other issues.”

So how are things going?

The Census has been forced to rush the creation of a paper-based processing system for its field staff because its original plan to equip workers with hand-held computers was a boondoggle. In the world of government, “rush” means that Census told Congress in April 2008 that it was scrapping the computers.

From a NextGov.com article at the time:

In 2006, the Census Bureau awarded a $595 million contract to Harris Corp. to develop more than 525,000 handheld computers that enumerators would use to collect data from Americans who did not send in their census forms… Since awarding the contract, the project has experienced constant setbacks, including changing system requirements that led to increased costs and missed deadlines. Reports by the Government Accountability Office, the department’s inspector general and Mitre Corp. all issued warnings that the handhelds were at risk of not being ready by 2010 and may not work as planned.

According to the inspector general’s report, the paper-based replacement system is also having problems:

  • “We found that system development and testing have fallen substantially behind schedule, resulting in less functionality and an increased likelihood of field staff’s encountering technical problems during operations.”
  • “Although development staff have been deployed as much as possible — working two shifts per day, extended hours, weekends and holidays — the schedule to build new functionality has not appreciably improved, and testing of already developed functionality continues to fall farther behind.”
  • Defects in the software have gone from 26 to 80 in the past year. As a result of the software delays and defects, the development of the training materials is 31 days behind schedule.
  • As for actual system performance, “Two load tests were conducted in December 2009 to determine the network and computing capacity needed during peak operations. The first test revealed numerous performance and functional problems. Although many of these problems were alleviated for the second test, performance issues persist.” Deployment is less than five weeks away.

The estimated cost of the census has increased by $3.2 billion in the last two years and is now expected to cost $14.7 billion. The inspector general’s take on cost overruns at early local census offices (ELCOs) speaks for itself:

These wide variances between budgeted and actual costs do not generate confidence in the Census Bureau’s budgeting and cost containment processes for large-scale field operations.

Among the findings:

  • “For production, 49 of 151 ELCOs (32 percent) exceeded their wage budgets and 75 (50 percent) exceeded their mileage budgets.”
  • “The ELCOs’ production wage costs were 45–186 percent of their budgets and for production mileage they were less than one percent to 250 percent of their budgets.”
  • “For quality control, 124 of 151 ELCOs (82 percent) exceeded both their wage and mileage budgets.”
  • “For the quality control phase of the operation, ELCOs’ wage costs were 68–439 percent of their budgets and for mileage were less than one percent to 878 percent of their budgets.”

That’s some quality control.

As for government efficiency:

During Address Canvassing, 15,263 employees received training but worked for less than a single day or did not work at all. Of these employees, 10,235 did not work at all but earned approximately $3.4 million for attending training. An additional 5,028 employees completed training, at a cost of $2.2 million in wages, but worked for less than a single day.

Looking at how the federal government is bungling a core constitutional function, it’s amazing that we let it meddle in housing, energy, health care, and thousands of other activities the Founders didn’t envision it doing.

See this essay for more on cost overruns in government programs.

The Census and the Constitution

The Washington Post profiles Daniel Weinberg, assistant director of the Census, who says:

“Since the decennial census is in our Constitution, it is the most important task a government statistician can undertake. The census is key to our democratic society by making sure that our congressional districts are equal in size so that we have representative democracy. To be involved in something that is central to our democracy is pretty exciting.”

Good point. The census is indeed in the Constitution, Article I, Section 2. The Constitution provides that every ten years an enumeration of the population of each state shall be made in order to allocate members of the House of Representatives.

Unfortunately, the census has been loaded down with intrusive questions not authorized in the Constitution and bearing no relation to the constitutional necessity of reapportionment. This year the Census Bureau is boasting of “one of the shortest forms in history,” which is all to the good. Still, it does ask respondents to list their race, which really should be irrelevant to government. And to tell whether they own their home or have a mortgage, in order “to administer housing programs and to inform planning decisions.” (That’s worked out well!) And of course they need age and sex data, in order to facilitate various government programs and mandates and to assist “sociologists, economists, and other researchers who analyze social and economic trends.”

Through the American Community Survey, the Census Bureau continues to ask Americans many more questions, from whether you’re on food stamps to how many bathrooms you have. All very interesting to sociologists and planners, of course, but hardly what Madison anticipated when he and his colleagues provided for an “actual enumeration” of the constituents of Congress.

Writing in Slate back in 2000, Tom Palmer complained that the Census Bureau was selling the census as a kind of Super Lotto: You can’t win if you don’t play! “The numbers are used to help determine the distribution of hundreds of billions of dollars in federal and state funds. We’re talking hospitals, highways, stadiums and school lunch programs.” Come on! Get your piece of other people’s tax dollars!

In 1990 David Kopel reviewed the Census Bureau’s promise of confidentiality.

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Census Paves the Way for Subsidies

Our bloated government does a lot of things it shouldn’t, but the decennial census is one of the handful of federal activities the Constitution approves of. The census was intended simply to determine the number of seats each state would have in the House of Representatives. Today, census data is plugged into government formulas to determine how more than $400 billion in subsidies from the federal welfare state are allocated to state and local governments.

The impetus to grab federal dollars caused controversy back in December when the National Association of Latino Elected Officials distributed a census promo that read, “This is how Jesus was born…Joseph and Mary participated in the Census.” The group’s website says that, “For each uncounted Latino, more than $11,000 [in federal funding] will be lost over the next decade.” Jesus did get stuck being born in a manger because Joseph and Mary couldn’t find proper shelter, but the Bible doesn’t say that the census led to Bethlehem receiving more affordable housing subsidies from Rome.

I just received a newsletter from the town where I reside. It says that my town was named the best place in the state to raise kids by BusinessWeek, 11th best place in America to move by Forbes, and one of the top 100 best places to live in America according to Relocate America. Sounds like my town’s doing pretty good on its own, but on page six I’m hit with a plea to make sure I participate in the census so the town can grab federal dollars:

When you fill out the census form in April, you’re making a statement about what resources [the town] needs going forward…Accurate data reflecting changes in our community are crucial in deciding how more than $400 billion per year is allocated for projects like hospitals, public works projects, infrastructure improvement, senior centers, schools and emergency services. That’s more than $4 trillion over a ten year period for things like new roads and schools, and services like job training centers.

Not a single item listed by the newsletter is anything the federal government is empowered to fund. There’s no practical or moral reason why my thriving town should receive money from taxpayers in other locals across the country. Nor should taxpayers in my town be forced to send a portion of their paycheck to Washington so politicians can play Santa Claus to their parochial interests. As such, the pork politics surrounding the census is another reminder that a return to fiscal federalism is desperately needed.