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EPIC --- Privacy and Human Rights Report 2006

Census

The counting of citizens can be traced back to the Biblical recordings of Moses. In the Book of Numbers, Moses counted people in areas surrounding his kingdom in order to strengthen the count of the population under his control. Scholars discuss that the list of names was used as an original census, creating a legal identity of, and control over, a group of people.[360]

The US Census has been administered every 10 years since the Revolutionary War, and it was intended to be used primarily for the apportionment of Representatives for the nation's Congress. The complexity of the census has grown with the expansion of the United States; the first automation of the Census process occurred in 1890 with the adoption of punch card to aid in tabulation.[361] This technology made it possible for census takers to extract greater detail abut the lives of those being counted and fueled the extensive uses for census related statistics. The census has also been crucial in tracking the population needs of various regions and understanding the structural composition of the nation's population.

The census raises important privacy issues.[362] The risks that accompany the electronic compilation of personal information include re-identification,[363] which is the practice of linking individuals' identities to anonymous census records; the use of personal information for marketing solicitations; and even more serious consequences of political abuse.

In the United States, census data is protected statutorily.[364] The US Code requires that information gathered by authorities be kept confidential and be used exclusively for statistical purposes. The statute provides penalties for employees who willfully disclose such information illegally. Authorities are restricted from using the information for any purpose other than statistics, making any publication allowing any individual to be identified, or permitting any unauthorized person to examine the census reports.

Internationally, data protection norms apply to census data. Article 6(1)(b) of the European Union Data Protection Directive provides that "appropriate safeguards" must be established for "processing of data for historical, statistical or scientific purposes."

Census taking can be well received or very controversial depending on how the results might impact the lives of the people undergoing tabulation process.[365] Many nations use the figures to make apportionment decisions regarding elected government or distribution allotments regarding limited government resources. Often tensions between minority and majorities are exposed during periods of census tabulation.

A specific example of the privacy risks of the US census can also be found in the 1940s. It has been recorded that even before the Japanese attack on Pearl Harbor, President Franklin Delano Roosevelt ordered the Census Bureau to collect information on "American-born and foreign-born Japanese" from the Census data lists. Information was gathered from the 1930 and 1940 censuses on all Japanese-Americans and then given to the Federal Bureau of Investigation (FBI) and top military officials. These sources point directly to the census information as one of the reasons that led to the internment of almost 110,000 Japanese-Americans on the West Coast, two-thirds of whom were US citizens.

In July 2004, a Freedom of Information Act request pursued by the Electronic Privacy Information Center revealed that the Census Bureau provided specially tabulated population statistics on Arab Americans to the Department of Homeland Security, including detailed information on how many people of Arab backgrounds live in certain ZIP codes. The tabulations were produced in August 2002 and December 2003 in response to requests from what is now the Customs and Border Protection division of the Department of Homeland Security. One set listed cities with more than 1,000 Arab Americans. The second, far more detailed, provided ZIP-code-level breakdowns of Arab American populations, sorted by country of origin. The categories provided were Egyptian, Iraqi, Jordanian, Lebanese, Moroccan, Palestinian, Syrian and two general categories, "Arab/Arabic" and "Other Arab."[366] Following the efforts of a coalition of ethnic advocacy groups, privacy watchdogs and civil rights and civil liberties organizations,[367] the Census Bureau subsequently announced that it would no longer assist law enforcement or intelligence agencies with special tabulations on ethnic groups and other ''sensitive populations'' without the approval of senior bureau officials.[368]

In the United Kingdom, it was determined that compulsory transfers were considered in Northern Ireland in 1972.[369] A UK government top-secret memo has surfaced describing a plan to relocate Irish Catholics; the plan was written with census data. Although never implemented, the use of census data for non-statistical purposes has caused great concern in Europe. Following a census conducted by the Belgium Colonial government in Rwanda, identification documents became compulsory.[370]

The Census continues to be controversial in Germany.[371] Since the Census was instrumental in identifying individuals persecuted by the Nazi regime, Germans have been sensitive to the administration and planned expansions of the Census.[372] In the 1980s, the German Government instituted a law requiring more information to be provided on the national census. After a public outcry, the law was challenged in court. The issue was brought before the German Federal Constitutional Court by representatives who had been instrumental in the passage of the first German Data Protection Act during the 1970s. The court found the census law unconstitutional based upon what the court termed a fundamental right to “informational self-determination” implicit in the German Constitution.

[360] In the United States, the census dates back to pre-Revolutionary times. It is thought that the census was developed to establish an equitable way to distribute the burden of the Revolutionary War, both economically and in manpower. See generally EPIC Census Privacy Page, available at <http://www.epic.org/privacy/census/>.

[361] University of Columbia, Hollerith 1890 Census Tabulator, available at <http://www.columbia.edu/acis/history/census-tabulator.html>.

[362] BBC, Privacy Fears over school census, available at <http://news.bbc.co.uk/1/hi/education/1732488.stm>.
[363] Latanya Sweeney, "Uniqueness of Simple Demographics in the U.S. Population," LIDAP-WP4. Carnegie Mellon University, Laboratory for International Data Privacy (Pittsburgh, PA 2000).

[364] 13 USC § 9.

[365] Harvard Magazine, Censoring the Census, available at <http://www.harvardmagazine.com/on-line/030373.html>.

[366] Lynette Clemetson, "Homeland Security given data on Arab-Americans," The New York Times, July 30, 2004 at A14.
[367] Lynette Clemetson, "Threats and Responses: Privacy; Coalition Seeks Action on Shared Data on Arab-Americans," The New York Times, August 13, 2004 at A11.
[368] Lynette Clemetson, "Census Policy On Providing Sensitive Data Is Revised," The New York Times, August 31, 2004 at A14.

[369] Kathleen Cahill, "When Catholics Were 'to Be Removed,'" Washington Post, January 12, 2003.
[370] Holocaust Memorial Day Trust, Rwanda Timeline, available at <http://www.hmd.org.uk/resources/item/104/>.

[371] For discussions on census privacy issues, see generally, Kent Walker, "Where Everybody Knows Your Name: A Pragmatic Look at the Costs of Privacy and the Benefits of Information Exchange," 1 Stan. Tech. L. Rev. 106 (2000) (citing Jerry M. Rosenberg, The Death of Privacy 1 (1969)); Thomas S. Mayer, "Privacy and Confidentiality Research and the US Census Bureau: Recommendations Based on a Review of the Literature" Research Report Series (Survey Methodology #2002-01);
Viktor Mayer-Schonberger, Privacy and the Law: A Symposium, No Choice: Trans-Atlantic Information Privacy Legislation and Rational Choice Theory, 67 Geo. Wash. L. Rev. 1309 (1999).
[372] See Edwin Black, "IBM and the Holocaust: The Strategic Alliance Between Nazi Germany and America's Most Powerful Corporation" (New York, Random House 2001; Richard Sobel, "The Demeaning of Identity and Personhood in the National Identification Systems," 15 Harv. J.L. & Tech. 319 (2002).