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Analysis

Strict Confidentiality Laws Limit Trump Administration Search for Citizenship Data

The Census Bureau is required to protect people’s privacy, no matter where their data comes from.

October 11, 2019

Months after the Supreme Court blocked the Trump admin­is­tra­tion’s attempt to add a citizen­ship ques­tion to the 2020 census, the admin­is­tra­tion is trying a differ­ent way to collect data on the citizen­ship status of every­one living in the United States. The admin­is­tra­tion’s renewed effort, announced via exec­ut­ive order in July, has raised concerns about how the admin­is­tra­tion is allowed to use the inform­a­tion it collects.

The order specific­ally directs the Census Bureau to collect admin­is­trat­ive records on citizen­ship from other federal agen­cies, such as the Depart­ment of Home­land Secur­ity. The order has met with imme­di­ate push­back. Several groups are suing to block the bureau from gath­er­ing these records, arguing that doing so would viol­ate the Consti­tu­tion and federal law. And experts have ques­tioned whether the plan put forth in that order is feas­ible. But there’s one thing to know regard­less of how these disputes are resolved: any data the bureau collects pursu­ant to the order will be protec­ted by the same iron­clad laws that protect the confid­en­ti­al­ity of census data.

As we’ve previ­ously explained in a detailed report, Federal Laws That Protect Census Confid­en­ti­al­ity, those laws are robust and clear-cut. For example, Title 13 of the U.S. Code — other­wise known as the Census Act — contains the follow­ing prohib­i­tions:

  • It is illegal for the Census Bureau to disclose any person­ally iden­ti­fi­able inform­a­tion.
     
  • It is illegal for census data to be used for any nons­tat­ist­ical purpose. Thus, the govern­ment cannot use census data for things like immig­ra­tion enforce­ment or crim­inal prosec­u­tion.
     
  • It is illegal for anyone except for Census Bureau employ­ees to see census responses. Bureau employ­ees are sworn to secrecy under the threat of crim­inal prosec­u­tion, and they can be sent to prison for up to five years and fined up to $250,000 if they break their oath.
     
  • It is illegal for the Census Bureau to give census responses to other govern­ment agen­cies. In other words, agen­cies like Immig­ra­tion and Customs Enforce­ment have no legal way to access census responses.
     
  • It is illegal for the federal govern­ment to use census responses to harm anyone.

All these prohib­i­tions apply equally to any inform­a­tion the bureau gath­ers using admin­is­trat­ive records from other agen­cies. If, for example, a house­hold does not respond to the decen­nial census, the bureau may try to use records from the Depart­ment of Hous­ing and Urban Devel­op­ment (HUD) to figure out the demo­graph­ics of the people living in that house­hold. Once the bureau gets that inform­a­tion from the HUD, it is subject to the same confid­en­ti­al­ity protec­tions as any other data the bureau collects. The same holds for any inform­a­tion that the Trump admin­is­tra­tion may gather through its exec­ut­ive order.

The bureau, in essence, oper­ates as a sort of vacuum: it can take in most any inform­a­tion it wants, but it cannot release that inform­a­tion unless it complies with all the applic­able confid­en­ti­al­ity restric­tions. (Deputy Census Bureau Director Ron Jarmin reportedly described the bureau as a “data roach motel” for this reason: “Data come in iden­ti­fi­able form, and don’t come out in iden­ti­fi­able form.”) Bureau policy endorses this view, and specific­ally notes that Title 13 protects admin­is­trat­ive records the bureau receives from other agen­cies. The bureau’s chief scient­ist, moreover, confirmed this strict confid­en­ti­al­ity policy in a recent present­a­tion on collect­ing admin­is­trat­ive records on citizen­ship.

Title 13 is just one of the many laws that protect the confid­en­ti­al­ity of census data. Other federal laws, includ­ing the Confid­en­tial Inform­a­tion Protec­tion and Stat­ist­ical Effi­ciency Act, the Privacy Act, and the tax code, provide addi­tional safe­guards. (A compre­hens­ive guide to the laws that protect the confid­en­ti­al­ity of Census Bureau data is avail­able here.)

The strength of the confid­en­ti­al­ity protec­tions in these and other federal laws reflects an acknow­ledge­ment by Congress that confid­en­ti­al­ity is essen­tial to getting people to respond to the census. The census determ­ines the distri­bu­tion of polit­ical power across the nation, as well as the amount of fund­ing that communit­ies get for neces­sit­ies like food, schools, and roads. With the stakes so high, it should come as no surprise that the confid­en­ti­al­ity laws are highly protect­ive.