A Project of The Annenberg Public Policy Center

Census Nonsense


Q: Do I have to answer Census questions? Isn’t this an invasion of privacy and a violation of the Fourth Amendment?

A: A widely circulated anti-Census commentary makes several false claims. The law requires truthful answers and states that they will be kept confidential. Courts have upheld its constitutionality.

FULL QUESTION

I have received the following spam e-mail re 2010 Census takers, and it states that they are asking questions regarding one’s feelings about the Fourth Amendment (i.e. search and seizure). A Jerry Day has produced a video on YouTube stating this as fact.

I did a search of Goggle and came up with the 10 questions asked on the 2010 form and replied to my sender! Replied to my sender with a stongly worded “not to believe everything they receive in e-mail.”

Below is what was forwarded to me.

At our house, the census takers will get only how many people live here, which is all that is required by law to tell them……………….

Looks like ‘Big Brother’ is getting nosy and personal………

They can only ask how many people live in the house.. nothing else…  look at all the information they are trying to gather.

[EET ]Please pay attention to the solution suggestions as how to respond and
what to ask the census taker.

Since this is so important I am blind copying a lot of people.

From: Thomas

Here is the detail form that they will be using. As you can see, they are asking questions that violate the 4th Amendment and the Constitution in general. I am attaching the link to the YouTube Video again so that this can be easily passed along.

[/EET]

FULL ANSWER

With Census questionnaires hitting America’s mailboxes this week, we thought it would be timely to respond to questions that we’ve been getting about claims made in chain e-mails, on anti-government Web sites and particularly in an anti-Census editorial posted on the Internet by a Burbank, Calif.-based TV camera operator and video producer named Jerry Day.

Day’s video had received more than 1.6 million viewings on YouTube.com as of March 18, and it has received considerable attention on conservative and anti-government blogs and Web sites. Day bears an uncanny resemblance to the late Harry Reasoner of ABC News, which may give him an undeserved air of authority in some eyes. In fact, Day’s denunciation of the Census is full of misinformation and false claims.

Day says that the Census Bureau will be asking intrusive, personal questions of all Americans, suggests that these violate the Constitution’s Fourth Amendment protections against unreasonable search, and claims that information given to Census is “presumably” subject to subpoena and could be used in court by prosecutors. He also claims that citizens are not required to cooperate with Census takers. He’s wrong on all counts.

The Questions

Day claims that Census will be “asking you things that you would not tell a stranger.”

Day: They will be asking you about your disabilities, how much income you receive, where you get your income from, your housing costs, how many cars you own, how much you pay for insurance, if you receive food stamps, how much you pay for utilities. They’ll be asking you things that you would not tell a stranger.

In fact, the 2010 Census form asks for none of that. It asks only how many people live at the address, whether the home is rented or owned and whether it has a mortgage, and the telephone number of the residence. It asks seven additional questions about each individual at the address, including name, sex, age and date of birth, race and whether the person is of Hispanic origin or not, and whether that person sometimes lives or stays at another address.

Census does ask the sort of questions Day refers to — but only of a relatively few Americans. The American Community Survey sends around a questionnaire with 40 different items, asking such things as whether a person is receiving disability benefits (number 16) and how many vehicles are kept at home for use by persons in the household (number 9). But the ACS questionnaire goes only to about 250,000 addresses each month, according to Census spokeswoman Shelly Lowe. That’s a total of 3 million over the course of the year, while the 2010 Census form goes to all 134 million addresses. So only a little more than 2 percent of all homes will be getting the sort of questions Day complains about.

Answers Required

Day claims that citizens don’t have to answer Census questions: “Unless the Census Bureau can show you their Constitutional authority, you don’t even have to open the door for them.” In fact, refusing to answer either the brief 2010 Census form or the longer ACS form is a violation of federal law (Title 13, United States Code, Section 221). Refusing to answer is punishable by a fine of $100, while giving false answers carries a fine of up to $500. (As a practical matter, Census says fines of up to $5,000 can be imposed under Title 18, Section 3571.)

Constitutional Authority

Day claims that the Census is exceeding its Constitutional authority by doing more than merely count noses.

Day: You may know that the Constitution allows the government to count us once every 10 years. For some reason, the Census Bureau has recently started counting us, and collecting information about us, every year, all year around. I’m not sure why, because the Constitution does not authorize them to do that. … They are not authorized to demand our cooperation in the contrived schemes they come up with for information gathering.

The Constitution (in Article 1, Section 2) does more than merely “allow” the government to count the population every 10 years — it requires that an “enumeration” be done “in such manner as they [Congress] shall by law direct.” Congress started with a simple count in 1790 — asking only for the numbers of free white males and females, slaves and other persons. But by 1820 it was also asking how many in each household were “engaged in agriculture, commerce, and manufactures.” In 1830 it asked how many were deaf, dumb or blind. The questions directed by Congress grew increasingly detailed through the remainder of the 19th century, and in 1902 Congress established the Census Bureau as a permanent agency.

“Recently Started?”

Day is incorrect when he claims that the Census Bureau “recently started” asking questions annually. In fact, the Census Bureau was collecting monthly data on employment as early as 1943, through what is now known as the Current Population Survey. It began an annual housing survey in 1973, which is now conducted every other year. What Day may be complaining about is the survey we mentioned earlier — the American Community Survey — which began in 2005.

The ACS is the reason that the 2010 Census is only using a “short form.” Previous decennial censuses used a “long form” to gather the same sort of detailed social and economic information. But the “long form” used to be required of one household in six, while the ACS questionnaire goes to just one in 46 this year.

Privacy

Day is off base again when he says that “presumably Census data may be subpoenaed by law enforcement” and used in court. Quite the contrary, the law says clearly that individual Census reports are “immune from legal process” including subpoenas.

U.S. Code, Title 13, Section 9: Copies of census reports … 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.

The law also forbids the sharing of individual Census reports with any other “department, bureau, agency, officer, or employee of the Government” (including the CIA and FBI) and prohibits release of anything but statistical information that does not identify individuals or businesses. Furthermore, the law makes it a crime punishable by up to five years in prison and a fine of up to $5,000 for any Census official to make unauthorized release of information. (Census says the fine can be up to $250,000 under Title 18.)

Would a Census official violate that strict privacy law? Skeptics point to a dark episode in the bureau’s history, when it turned over names and addresses of Japanese Americans to other government agencies during World War II. Census officials denied that for many years after the war, but in 2007 two diligent historians, William Seltzer of Fordham University and Margo Anderson of the University of Wisconsin, Milwaukee, finally dug up and published conclusive documentary evidence of the bureau’s cooperation with the FBI, Secret Service and possibly other federal agencies. However, that wasn’t illegal at the time. Congress had passed section 1402 of the Second War Powers Act, which explicitly authorized giving otherwise confidential Census information to the head of “any branch or agency” of the federal government “for use in connection with the conduct of the war.” As historians Anderson and Seltzer noted, Census officials who made these wartime disclosures “broke no law.” Today, it would be a felony. The war ended in 1945, and section 1402 was repealed in 1947.

Fourth Amendment

Day asks rhetorically, “Do current levels of data collection violate the Fourth Amendment?” The answer given by the federal courts is that they do not. The Fourth Amendment prohibits “unreasonable searches” and requires that search warrants be based on probable cause. But as long ago as 1870 the U.S. Supreme Court wrote in passing that the government had unquestioned authority to ask for more than a mere head count.

U.S. Supreme Court, Legal Tender Cases, 79 U.S. 457 (1870): The Constitution orders an enumeration of free persons in the different states every ten years. The direction extends no further Yet Congress has repeatedly directed an enumeration not only of free persons in the States but of free persons in the Territories, and not only an enumertion of persons but the collection of statistics respecting age, sex, and production. Who questions the power to do this?

And as recently as 2000, a federal judge in Houston, Texas, held that Census questions don’t violate the Constitution. U.S. District Judge Melinda Harmon dismissed the complaint of five plaintiffs who claimed that the Census violated their Constitutional rights. Regarding the Fourth Amendment specifically, she noted that the Census questions didn’t involve uninvited entry into anyone’s home, and that the information was being sought for reasonable and legitimate government purposes.

Judge Harmon: it is clear that the degree to which these questions intrude upon an individual’s privacy is limited, given the methods used to collect the census data and the statutory assurance that the answers and attribution to an individual will remain confidential. The degree to which the information is needed for the promotion of legitimate governmental interests has been found to be significant. … The Court finds that there is no basis for holding Census 2000 unconstitutional.

That opinion was later upheld by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in New Orleans. The judges wrote simply that “we find no error in the district court’s judgment nor in its stated reasons for its judgment.” The U.S. Supreme Court declined to hear any further appeal in 2002.

So — like it or not — the law requires truthful answers to the 10 questions on the 2010 Census form (and to the 40 questions on the American Community Survey form, for the 3 million households that receive it). And the courts have consistently upheld the government’s right to require answers to those questions.

–Brooks Jackson

Correction, Feb. 5, 2014: In our original posting, we incorrectly stated that there was “no record” of Census turning over names and addresses of Japanese Americans to other government agencies during WWII. We have rewritten that paragraph to say there was conclusive evidence of the bureau’s cooperation, although it wasn’t illegal at the time.

Sources

Day, Jerry. “The Census is Getting Personal.” Video posted on YouTube.com. 11 Feb 2010.

Jerry Day Productions, Burbank, CA. “Some highlights from our experience . . . ” Web site accessed 18 Mar 2010.

US Census Bureau. “The Qustions on the Form.” Web site accessed 18 Mar 2010.

US Census Bureau. “American Community Survey.” Web site accessed 18 Mar 2010.

US Census Bureau. “The 2010 American Community Survey Questionnaire.” downloaded 18 Mar 2010.

13 USC Sec. 221. 2009.

US Const. art. 1 sec. 2.

US Census Bureau. “History: Index of Questions; 1790.” Web page accessed 18 Mar 2010.

US Census Bureau. “History: Index of Questions; 1820.” Web page accessed 18 Mar 2010.

US Census Bureau. “History: Index of Questions; 1830.” Web page accessed 18 Mar 2010.

US Census Bureau. “History: Legislation 1902 – 1941.” Web page accessed 18 Mar 2010.

US Census Bureau “History: Developing Sampling Techniques ” Web page accessed 18 Mar 2010.

US Census Bureau. “History: The American Housing Survey. ” Web page accessed 18 Mar 2010.

US Census Bureau. “History: The American Community Survey. ” Web page accessed 18 Mar 2010.

13 USC Sec. 9. 2009.

13 USC Sec. 214. 2009.

Holmes, Steven. “Census blamed in internment of Japanese; Scholars study wartime bureau.” New York Times. 17 Mar 2000.

Seltzer, William and Margo Anderson. “After Pearl Harbor: The Proper Role of Population Data Systems in Time of War.” 20 March 2000. Accessed from University of Wisconsin – Milwaukee Web site 18 Mar 2010.

Seltzer, William and Margo Anderson. “Census Confidentiality under the Second War Powers Act (1942-1947).” Paper prepared for Population Association of America Annual Meeting. 30 Mar 2007. Accessed from University of Wisconsin – Milwaukee Web site 5 Feb 2014.

Minkel, JR. “Confirmed: The U.S. Census Bureau Gave Up Names of Japanese-Americans in WW II.” Scientific American. 30 Mar 2007.

El Nasser, Haya. “Papers show Census role in WWII camps.” USA Today. 30 Mar 2007.

Second War Powers Act, 1942, P.L. 507, 77th Congress, 2d Session (S2208), Section 1402.  Approved 27 Mar 1942.

US Constitution. amendment IV.

Legal Tender Cases (79 US 457) Supreme Ct. of the US 1830.

Morales v. Daley, 116 F. Supp. 2d 801, 820 S.D. Tex. 2000.

Morales v. Evans unpublished opinion 275 F.3d 45 10 Oct 2001.

US Census Bureau. “Census in the Constitution.” Web page accessed 18 Mar 2010.