EPIC v. Commerce (Census Privacy)

EPIC v. Department of Commerce, No. 18-2711 (D.D.C. filed Nov. 20, 2018), is a lawsuit to block the unlawful collection of personal data concerning citizenship status via the 2020 Census. In March of 2018, the Department of Commerce and U.S. Census Bureau announced the addition of a citizenship question to the decennial census for the first time in 70 years. The controversial question, which members of the public are required by law to answer, would compel the disclosure of personally identifiable information from hundreds of millions of people.

The collection of citizenship status information poses major privacy risks and threatens to undermine the quality of census response data. Yet the Commerce Department and Census Bureau did not conduct a privacy impact assessment prior to initiating the data collection process, as required by the E-Government Act of 2002. As a result, the agencies have failed to disclose key information about the privacy implications of collecting citizenship data and have unlawfully placed the privacy of census respondents at risk.

EPIC's lawsuit, brought under the E-Government Act and the Administrative Procedure Act, seeks to halt the collection of citizenship data and to compel the Commerce Department and Census Bureau to comply with their privacy impact assessment obligations. On January 18, 2019, EPIC filed a motion for a preliminary injunction to block implementation of the citizenship question pending a final ruling on EPIC's claims. "Congress expected that the Bureau would conduct a comprehensive privacy review early in the process, not as the census forms were heading to the printer or delivered to the post office," EPIC told the court.

On February 8, the district court denied EPIC's motion. The court acknowledged that the Census Bureau must prepare privacy impact assessments which "adequately address the collection of citizenship data in the 2020 Census” and noted that “negative policy consequences” could result “if an agency drags its feet in performing its PIA obligations.” Nevertheless, the court held that the Bureau may drag its feet in conducting the required assessments “until the Bureau mails its first batch of Census questionnaires to the public” in 2020.

Top News

  • Court Denies Injunction in EPIC Census Privacy Suit: A federal court has denied EPIC’s motion for a preliminary injunction and refused to block the Census Bureau from collecting citizenship information via the 2020 Census. As EPIC told the court, the Bureau unlawfully failed to complete multiple privacy impact assessments before it abruptly introduced the citizenship question last year. The court acknowledged that the Bureau must “prepare PIAs that adequately address the collection of citizenship data in the 2020 Census” and noted that “negative policy consequences” could result “if an agency drags its feet in performing its PIA obligations.” Nevertheless, the court held that the Bureau may drag its feet in conducting the required assessments “until the Bureau mails its first batch of Census questionnaires to the public” in 2020. EPIC has filed numerous successful lawsuits to require privacy impact assessments, including EPIC's case that led a now-defunct Presidential Commission to delete state voter data it unlawfully obtained. EPIC intends to press forward with the census case, which is captioned EPIC v. Commerce, No. 18-2711 (D.D.C.). (Feb. 8, 2019)
  • More top news »
  • Census Bureau: 99 Percent of Commenters Oppose Citizenship Question » (Jan. 24, 2019)
    According to a Census Bureau report, 99 percent of commenters who gave feedback on the 2020 Census are opposed to the planned addition of the citizenship question. The Bureau received more than 136,000 comments against the collection of citizenship data, many of which were signed by multiple individuals and organizations. EPIC filed comments opposing the citizenship question, arguing that it will interfere with the census's constitutional purpose and undermine the integrity of the census. EPIC is currently seeking a preliminary injunction to block the collection of citizenship data because the Bureau failed to complete privacy impact assessments required by law. The Court has scheduled a hearing for Feb. 8. EPIC's case is EPIC v. Commerce, No. 18-2711 (D.D.C.).
  • EPIC Seeks Injunction to Block Census Citizenship Question » (Jan. 18, 2019)
    EPIC is seeking a preliminary injunction to block the Census Bureau from adding a question about citizenship to the 2020 Census. EPIC alleges that the Census Bureau failed to complete privacy impact assessments, required by law, before it abruptly added the question to the census last year. EPIC explained that the "extraordinary reach of the Bureau into the private lives of Americans brings with it extraordinary risks to privacy." A federal court in New York recently blocked the citizenship question, but the Census Bureau has appealed that decision. EPIC filed an amicus brief in the New York case and has long advocated for robust protections for census data. EPIC has also filed numerous successful lawsuits to require privacy impact assessments, including EPIC's lawsuit that led a now-defunct Presidential Commission to delete state voter data it unlawfully obtained.
  • NY Court Blocks Citizenship Question in 2020 Census » (Jan. 15, 2019)
    A federal judge has ruled that the Secretary of Commerce's decision to add the citizenship question to 2020 Census was unlawful. EPIC filed an amicus brief in the case, arguing that "history has shown that personal data, collected by the government through the census, can threaten individual rights." EPIC has also sued the Department of Commerce (EPIC v. Commerce) because the agency failed to complete a Privacy Impact Assessment prior to collecting citizenship data. A 2004 EPIC FOIA lawsuit revealed that the Census Bureau provided DHS with data on Arab Americans after 9-11, leading the Census Bureau to revise its "sensitive data" policy for transfers to law enforcement and intelligence agencies.
  • EPIC Files Suit to Block Census Citizenship Question » (Nov. 20, 2018)
    EPIC has filed a lawsuit to block the addition of a citizenship question to the 2020 Census. EPIC charged that the Census Bureau failed to complete multiple Privacy Impact Assessments, as required by law. The Bureau abruptly added the citizenship question earlier this year but did not assess the privacy impact on census respondents, who are legally obligated to answer all questions. As EPIC's lawsuit reveals, the Bureau recently indicated—for the first time—that personal data provided to the Census Bureau could be used "for criminal law enforcement activities." The Bureau's admission raises new questions about whether citizenship information will be transmitted to the Department of Justice. EPIC has filed numerous successful lawsuits seeking to enforce federal agencies' obligation to publish Privacy Impact Assessments. Earlier this year, the Presidential Advisory Commission on Election Integrity was shut down after EPIC filed a lawsuit to block the collection of state voter data and challenging the Commission's failure to complete a Privacy Impact Assessment.
  • In Amicus Brief, EPIC Opposes Citizenship Question in 2020 Census » (Oct. 30, 2018)
    EPIC has filed an amicus brief in a case challenging the addition of a citizenship question to the 2020 census. EPIC expressed support for the decennial tally of those in the US, but warned that, "history has shown that personal data, collected by the government through the census, can threaten individual rights." EPIC said that the Bureau failed to complete an updated Privacy Impact Assessment about the risk that personal data could be used for purposes unrelated to the census. In comments to the Census Bureau, EPIC opposed the citizenship question this year. EPIC also obtained Census Bureau documents in FOIA case, including email from Kris Kobach to Secretary Ross requesting the addition "on the direction of Steve Bannon." A 2004 EPIC FOIA lawsuit revealed that the Census Bureau had provided DHS with data on Arab Americans after 9-11, leading the Census Bureau to revise its "sensitive data" policy for transfers to law enforcement and intelligence agencies. Former Directors of the Census Bureau also filed an amicus brief in New York et al. v. Department of Commerce, opposing the citizenship question.
  • EPIC Urges Removal of Citizenship Question on 2020 Census » (Oct. 3, 2018)
    In advance of the nomination hearing for the Census director, EPIC has sent a statement to a Senate committee urging the Census Bureau to suspend the citizenship question in the 2020 Census until a Privacy Impact Assessment is conducted. The administration conceded that the question was added at the request of the Justice Department, but EPIC explained that census data should never be used for law enforcement because that would undermine the constitutional purpose and the integrity of the census. An earlier Privacy Impact Assessment preceded the addition of the citizenship question. EPIC said that assessment does not meet the agency standards and that the Census is required by law to conduct a revised assessment. Through a Freedom of Information Act request, EPIC obtained documents (part 1, part 2, part 3, part 4) concerning Commerce Secretary Wilbur Ross and the citizenship question. The census raises significant privacy risks and was used to target Japanese-Americans for internment during World War II. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11. As a consequence of EPIC's lawsuit, the Census Bureau revised its policy on disclosing statistical information about "sensitive populations" to law enforcement and intelligence agencies. EPIC also opposed the addition of the citizenship question in recent comments to the U.S. Census Bureau.
  • EPIC Opposes Citizenship Question on 2020 Census » (Aug. 8, 2018)
    In comments to the U.S. Census Bureau, EPIC opposed the agency's decision to add a citizenship question to the 2020 census. The administration's stated purpose for the question is to assist the DOJ, but EPIC argued that census data should never be used for enforcement purposes because collecting data to enforce laws will interfere with the census's constitutional purpose and will undermine the integrity of the census. The Bureau earlier conducted a Privacy Impact Assessment for the census, but it did not acknowledge the privacy risks raised by the recently added citizenship question. EPIC said the assessment does not meet the Commerce Department's standards and that it is required to conduct a revised assessment, analyzing the privacy risks created by the citizenship question. Through a Freedom of Information Act request, EPIC obtained documents (part 1, part 2, part 3, part 4) concerning Commerce Secretary Wilbur Ross and the citizenship question. The census raises significant privacy risks and was used to target Japanese-Americans for internment in World War II. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11. As a consequence of EPIC's lawsuit, the Census Bureau revised its policy on disclosing statistical information about "sensitive populations" to law enforcement and intelligence agencies.
  • Legal Challenge to Citizenship Question on Census Moves Forward » (Jul. 27, 2018)
    A federal judge ruled that lawsuits challenging the Trump administration's decision to add a question on citizenship status to the 2020 census could move forward. The court rejected the administration's claim that the plaintiffs lacked standing and ruled that it was "plausible" that the decision was motivated by racial animus and would result in a discriminatory effect on immigrant communities. Through a Freedom of Information Act request, EPIC obtained documents (part 1, part 2, part 3, part 4) considered by Commerce Secretary Wilbur Ross to add the citizenship question. The census raises significant privacy risks and has been used to discriminate. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11.
  • EPIC FOIA: EPIC Obtains Documents About Decision to Add Census Citizenship Question » (Jun. 11, 2018)
    Through a Freedom of Information Act request, EPIC has obtained documents (part 1, part 2, part 3, part 4) considered by Commerce Secretary Wilbur Ross to add a citizenship question to the 2020 Census. Following a request from the Department of Justice, the Census Bureau announced that it would ask about citizenship status for the first time in over 50 years. The documents obtained by EPIC, and others who made similar requests, reflect the varying opinions from lawmakers, scientists, and immigration groups about the proposal. The documents also reveal that Kris Kobach, former Vice Chair of the now-defunct Presidential Advisory Commission on Election Integrity, urged Secretary Ross "on the direction of Steve Bannon" to add the citizenship question. According to an analysis conducted by the Census Bureau, the impact of asking about citizenship would be "very costly, harms the quality of the census count, and would use substantially less accurate citizenship data than are available" from other government resources. In a FOIA case against DHS, EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to the Department of Homeland Security after 9-11. As a consequence, the Census Bureau revised its policy on sharing statistical information about "sensitive populations" with law enforcement or intelligence agencies.
  • EPIC Tells Congress to Consider Census Privacy Risks » (Jun. 8, 2018)
    In advance of a hearing on the 2020 Census, EPIC told Congress to consider the privacy issues arising from potential misuse of Census data. After the Department of Commerce announced that the 2020 Census will include a question on citizenship status, many have expressed concerns about the confidentiality of the data collected. EPIC told Representatives: "your committee should ensure that the data collected by the federal government is not misused." The census raises significant privacy risks and has been used to discriminate. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to the Department of Homeland Security after 9-11. As a consequence, the Census Bureau revised its policy on disclosing statistical information about "sensitive populations" to law enforcement or intelligence agencies. Customs and Border Protection also changed its policy on requesting "information of a sensitive nature from the Census Bureau."
  • EPIC Tells Congress to Consider Census Privacy Risks » (May. 8, 2018)
    In advance of a hearing on the 2020 Census, EPIC told Congress to consider the privacy issues arising from potential misuse of Census data. After the Department of Commerce announced that the 2020 Census will include a question on citizenship status, many have expressed concerns about the confidentiality of the data collected. EPIC told Representatives: "your committee should ensure that the data collected by the federal government is not misused." The census raises significant privacy risks and has been used to discriminate. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to the Department of Homeland Security after 9-11. As a consequence, the Census Bureau revised its policy on sharing statistical information about "sensitive populations" with law enforcement or intelligence agencies. Customs and Border Protection also changed its policy on requesting "information of a sensitive nature from the Census Bureau."
  • EPIC Tells Congress to Consider Census Privacy Risks » (Apr. 17, 2018)
    In advance of a hearing on the Census Bureau, EPIC told Congress to consider the privacy issues arising from potential misuse of Census data. After the Department of Commerce announced that the 2020 Census will include a question on citizenship status, many have expressed concerns about the confidentiality of the data collected. EPIC told Representatives: "your committee should ensure that the data collected by the federal government is not misused." The census raises significant privacy risks and has been used to discriminate. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to the Department of Homeland Security after 9-11. As a consequence, the Census Bureau revised its policy on sharing statistical information about "sensitive populations" with law enforcement or intelligence agencies. Customs and Border Protection also changed its policy on requesting "information of a sensitive nature from the Census Bureau."
  • 2020 US Census to Include Citizenship Question, Senators Introduce Bill to Block » (Mar. 27, 2018)
    The Department of Commerce announced that the 2020 census will include a question on citizenship status. The decennial census has not included a citizenship question since 1950. Critics argue that the question will result in unreliable data collection and skew census results. Senator Menendez (D-NJ) has introduced S. 2580, a bill that would prohibit the census from including a citizenship question. Last week EPIC submitted a Freedom of Information Act request seeking documents on the Department's consideration of the many complicated issues related to the question. The census raises significant privacy risks. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11.
  • EPIC FOIAs Commerce Department about Citizenship Question on 2020 Census » (Mar. 22, 2018)
    EPIC has submitted an urgent Freedom of Information Act request to the Department of Commerce seeking information about a proposed citizenship question on the 2020 census. Secretary Wilbur Ross stated today that the Department of Commerce will make a decision as to whether to include the controversial question in the 2020 census by March 31. Secretary Ross also said, “there are probably 15 or 20 different very complicated issues involved in the request.” EPIC specifically requested information about these issues. The census raises significant privacy risks. EPIC previously obtained documents which revealed that the Census Bureau transferred the personal data of Muslim Americans to DHS after 9-11.

Background

The Citizenship Question

In order to determine the apportionment of representatives "among the several States," the Census Clause of the U.S. Constitution, as amended, requires that an "actual Enumeration" of persons be undertaken every ten years "in such Manner as [Congress] shall by Law direct." To implement the Census Clause, Congress has directed the Secretary of Commerce to "take a decennial census of population" and to "determine the inquiries, and the number, form, and subdivisions" of the questionnaires to be used in the Census. The Census Bureau will administer the next Census in 2020. By law, any person who refuses to answer "any of the questions . . . submitted to him in connection with any census"—or who willfully gives a false answer to a census question—is subject to criminal penalties.

On March 26, 2018, Secretary of Commerce Wilbur L. Ross announced that he "ha[d] determined that reinstatement of a citizenship question on the 2020 decennial census [wa]s necessary" and that he was "directing the Census Bureau to place the citizenship question last on the decennial census form." No citizenship question appeared on the 2010 Census, nor has the Census Bureau posed a citizenship question to all census respondents since the 1950 Census. On March 28, 2018, the Census Bureau officially reported to Congress the Bureau's intention to add a citizenship question to the 2020 Census, phrased as follows:


Secretary Ross stated that the addition of the citizenship question was in response to a December 2017 request by the Department of Justice, which purportedly sought citizenship data to enable "more effective enforcement" of the Voting Rights Act. The DOJ's request raised alarm and opposition from members of the U.S. Senate, the attorneys general of at least twenty states, and numerous mayors from across the country. Moreover, Secretary Ross's explanation for his decision is at odds with his subsequent statement that he communicated with Chief White House strategist Steve Bannon and Kansas Secretary of State Kris Kobach about the citizenship question months before the DOJ made a request.

The Privacy Implications of the Citizenship Question

Although the Census Bureau's collection of personally identifiable information carries inherent privacy risks, the addition of a citizenship question on the 2020 Census poses a special threat to privacy, personal security, and the accuracy of the census. The citizenship question would compel the release of respondents' citizenship status (and potentially immigration status), which could in turn expose individuals and their family members to investigation, sanction, and deportation.

Secretary Ross's asserted basis for adding the citizenship question was to provide the DOJ with "census block level citizen voting age population ('CVAP') data,"—data that is susceptible to reidentification. The Bureau has indicated that census response data—including individuals' citizenship status information—may be transferred in "[b]ulk" to other federal agencies "[f]or criminal law enforcement activities. In a June 12, 2018 email exchange between DOJ officials, disclosed in the course of litigation against Secretary Ross, DOJ officials "privately discussed the possibility that in the future census information could be shared with law enforcement."

Historically, the misuse of census data has caused grave harm to certain populations. For example, the 1910 census law prohibited the use of information supplied by businesses for non-statistical, non-census purposes, but there was no such prohibition regarding individual citizen data. As a result, during World War I, the Census Bureau did in fact disclose census records to the Department of Justice and local draft boards to help enforce the draft. Similarly, in 1920, the Department of Justice requested census data about individuals’ citizenship for use in deportation cases. In 1930, Congress passed the census law that would become known as Title 13, which prohibited the Census Bureau from publishing any data identifying individuals. However, the Second War Powers Act weakened this restriction and permitted the Census Bureau in 1943 to provide the U.S. Secret Service with the names, addresses, occupations, and citizenship status of every Japanese American residing in the Washington, D.C. area. The Census Bureau also provided the War Department with census-block level data on Japanese Americans residing in western states to facilitate their internment.

In 2004, an EPIC Freedom of Information Act (FOIA) request revealed that the Census Bureau had provided the Department of Homeland Security with a list of cities containing more than 1,000 Arab-American residents and a zip-code level breakdown of Arab-American populations throughout the United States, sorted by country of origin. While the Census Bureau and Customs and Border Protection revised their data request policies following EPIC’s FOIA case, many Americans are justifiably fearful that their census responses will be used against them by other federal agencies, which can lead individuals to provide false or incomplete information.

The Government's Failure to Publish Required Privacy Impact Assessments

Under Section 208 of the E-Government Act of 2002, any agency that "initiat[es] a new collection of information that . . . will be collected, maintained, or disseminated using information technology" is required to complete a privacy impact assessment (PIA) before doing so. Specifically, the agency must "(i) conduct a privacy impact assessment; (ii) ensure the review of the privacy impact assessment by the Chief Information Officer, or equivalent official, as determined by the head of the agency; and (iii) if practicable, after completion of the review under clause (ii), make the privacy impact assessment publicly available through the website of the agency, publication in the Federal Register, or other means."

The aim of Congress in enacting the E-Government Act was “[t]o make the Federal Government more transparent and accountable” and “to ensure sufficient protections for the privacy of personal information[.]” Thus, a privacy impact assessment must be "commensurate with the size of the information system being assessed, the sensitivity of information that is in an identifiable form in that system, and the risk of harm from unauthorized release of that information." The PIA must specifically address "(I) what information is to be collected; (II) why the information is being collected; (III) the intended use of the agency of the information; (IV) with whom the information will be shared; (V) what notice or opportunities for consent would be provided to individuals regarding what information is collected and how that information is shared; [and] (VI) how the information will be secured."

Despite these explicit obligations under the E-Government Act, the Census Bureau and Department of Commerce failed to conduct any privacy impact assessment addressing the privacy risks of collecting citizenship status information. According to the Census Bureau, census response data is collected, maintained, and disseminated by at least five different IT systems: CEN05, CEN08, CEN11, CEN13, and CEN05. Yet none of the current PIAs for these systems assess the risks of collecting citizenship information, and three of the five fail to acknowledge that citizenship information will be collected at all. The Census Bureau and Commerce Department have therefore unlawfully ignored the privacy harms caused by the citizenship question.

EPIC's Interest

EPIC has long highlighted the obligation of federal agencies to conduct and publish a privacy impact assessment before any new collection of personal data, and EPIC has brought numerous successful cases seeking the release of PIAs. In EPIC v. DHS, No. 11-2261 (D.D.C. filed Dec. 20, 2011), EPIC obtained a PIA and related records concerning a prior effort by the DHS to track social media users and journalists. In EPIC v. FBI, No. 14-1311 (D.D.C. filed Aug. 1, 2014), EPIC obtained unpublished PIAs from the Federal Bureau of Investigation concerning facial recognition technology. And in EPIC v. DEA, No. 15-667 (D.D.C. filed May 1, 2015), EPIC learned that the Drug Enforcement Administration had failed to produce PIAs for the agency's license plate reader program, a telecommunications records database, and other systems of public surveillance.

More recently, in EPIC v. Presidential Advisory Commission on Election Integrity, No. 17-1320 (D.D.C. filed July 3, 2017), EPIC challenged the failure of the Presidential Advisory Commission on Election Integrity to undertake and publish a PIA prior to the collection of state voter data. EPIC's suit led the now-defunct Commission to suspend its data collection and later delete all of the voter information that had been illegally obtained. In EPIC v. DHS, No. 18-1268 (D.D.C. filed May 30, 2018), EPIC is currently seeking to block the development of a Department of Homeland Security system designed to monitor journalists. EPIC's suit led the DHS to admit that it had not conducted a privacy impact assessment, as required by law.

EPIC has also been a longtime advocate of robust privacy protections for census respondents. EPIC was directly involved in the 2004 effort to revise the Census Bureau “sensitive data” policy after an EPIC FOIA lawsuit revealed that the DHS had acquired data on Arab Americans from the Census Bureau after 9/11. In formal comments to the Census Bureau and a statement to the Senate Committee on Homeland Security and Government Affairs, EPIC opposed the decision to add a citizenship question to the 2020 census. And in October 2018, EPIC filed an amicus brief in New York v. Department of Commerce, a separate case challenging the citizenship question. EPIC explained the special privacy risks of collecting citizenship status information and highlighted the Census Bureau's failure to conduct an adequate privacy impact assessment. On January 15, 2019, the court in that case ruled that the decision to add the citizenship question was unlawful under the Administrative Procedure Act and enjoined the government from including the question on the 2020 Census.

Legal Documents

EPIC v. Dep't of Commerce, No. 18-2711 (D.D.C. filed Nov. 20, 2018)

Other Documents

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