Wnited States Senate
WASHINGTON, DC 20510
December 6, 2018
‘The Honorable William L. Ross, Jr.
Secretary
US. Department of Commerce
1401 Constitution Ave, NW
Washington, DC 20230
‘The Honorable Karen Dunn Kelley
Deputy Secretary of Commerce
USS. Department of Commerce
1401 Constitution Avenue, NW
Washington, DC 20230
Dear Secretary Ross and Deputy Secretary Kelley:
We are writing in response to reports that the Department of Justice (“DOJ”) is considering
violating the confidentiality of information collected through the decennial census, and to seek
your commitment to protecting the absolute confidentiality of personal census data as federal law
requires. Earlier this month, due to a federal lawsuit, DOJ produced several documents revealing
that senior DOJ officials refused to confirm an existing legal opinion that found that no provision
within the USA Patriot Act could be used to compel the Commerce Secretary to release
confidential information collected by the Census Bureau.!
The failure by DOJ to commit to protecting the confidentiality of the census, especially in
response to a question from a member of Congress, is troubling not only because it demonstrates
a willingness by senior administration officials to roll back data confidentiality protections, but
also because it further undermines the likelihood of success of a census already facing significant
challenges that are expected to depress response rates and compromise the quality of census data,
We urge you to immediately reaffirm the confidentiality protections of the Census Act and to
request written confirmation of the 2010 DOJ Office of Legal Counsel (“OLC”) opinion
regarding the relationship between the Census Act and the USA Patriot Act from the Attorney
General.
Since the mid-nineteenth century, the federal government has acknowledged the importance of
census privacy and confidentiality, and has expanded safeguards to protect individual records in
a number of different ways. In fact, in the very first Presidential proclamation on the census,
President Taft stated:
Tara Bahrampour, Trump Administration Officials Suggested Sharing Census Responses With Law
Enforcement, Court Documents Show, Washington Post, (November 19, 2018),
https:/éwwnw,
‘census-responses-with-law-enforcement-court-documents-show/2018/11/19/41679018-ec46-I 1e8-8679-
934a2b33be52_story.html2utm_term=,beS570ec47bd“The sole purpose of the census is to secure general statistical information. ..the
census has nothing to do with taxation, with army or jury service, with the
compulsion of school attendance, with the regulation of immigration, or with the
enforcement of any national, state, or local iaw or ordinance, nor can any person
be harmed in any way by furnishing the information required. There need be no
fear that any disclosure will be made regarding any individual person or his
affairs.”
Deviating from this approach can have disastrous consequences. In an appalling episode of
American history, census data were shared with the War Department in 1942 to facilitate
Japanese American internment; this decision, which resulted in the forced relocation and
incarceration of over 100,000 Americans, led the Census Bureau to create safeguards to prevent
the future misuse of census data and Congress to strengthen those protections in law. As you
know, Title 13, sections 8 and 9 of the U.S. Code now explicitly prevent the Commerce
Department and any of its bureaus or agencies from sharing personally identifiable information
collected by the census with any external entity or individual.
Following the passage of the USA Patriot Act, the federal government emphasized again that the
purpose of the census is to collect general statistics, not to support the work of other federal
agencies unrelated to the use of aggregate statistics to inform policy development and program
administration. On January 4, 2010, the Assistant Atomey General for Legislative A(Tairs,
Ronald Weich, issued a Memorandum Opinion stating that the USA Patriot Act “does not
require the Secretary of Commerce to disclose census information to federal law enforcement or
national security officers where such disclosure would otherwise be prohibited by the Census
Act.” However, despite the Census Bureau's historical commitment to confidentiality and
privacy, the devastating consequences of violating those principles, the longstanding statutory
protections of individual census data, and the reaffimation of those rights in 2010, this summer
DOJ attorney Ben Aguinaga crafted intentionally arabiguous responses to questions from
Congress? concerning the 2010 OLC opinion “in case the issues addressed in the OLC opinion or
related issues come up for renewed debate.
‘You are aware that six former Census Bureau directors have already warned Commerce the
addition of a citizenship question will depress the responsiveness of the general public, lower the
? Proclamation for the Thirteenth Decennial Census, March 15, 1910, available at
bttps://www.census.gov/history/pdf/ConfidentialityMonograph.pdf (emphases added).
> Bahrampour, supra note 1, Representative Gomez’s question was whether there was “any provision of
any law that might compel Census to disclose confidential census data for law enforcement or national
security purposes?”
* https://www.documentcloud.org/documents/5193403-Nov-16-2018-Declaration-of-Andrew-Case-
in.html¥document/p27/2466663quality of data collected, and come at a significant cost to the American taxpayer.’ The
possibility of information sharing by the Commerce Department across different agencies
threatens to further diminish the trust between the federal government and census respondents,
exacerbating the obstacles the 2020 Census already faces.
Therefore, itis critical that you clarify, on behalf of the Department of Commerce and Census
Bureau, your understanding of the Census Act and the 2010 OLC opinion. The integrity and
viability of the 2020 Census requires that you provide the public a forceful reassurance that their
census data cannot and will not be shared with law enforcement or for any other non-statistical
purpose, Thank you, and we look forward to your response.
Sincerely,
Cory A. Booker rian Schatz,
United States Senator United States Senator
Catherine Mazie Chinn
United States Senator United States Senator
United States Sebfitor
5 We remain unequivocally opposed to adding a citizenship question. If not addressed quickly, the mere
‘suggestion that citizenship information might be shared across agencies could have a colossal chilling
effect on Census participation and cause irreparable damage to Census accuracy.