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Updated 11.02.09 The Census is a survey conducted by the U.S. Department of Commerce every 10 years to collect statistical data
to help the federal government make informed decisions for government action for areas of social welfare.
Since the Census can raise privacy concerns for civil libertarians, the ACLU of Ohio created the following list of frequently asked questions to serve as a resource.
Where does the federal government find
authority to conduct
a Census?
The U.S. Constitution authorizes a Census in Article I, Section 2.
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"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers."
"The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." - Article I, Section 2 of the U.S. Constitution. |
The Census is conducted under the authority of Title 13 of the U.S. Code,
Section 141, which provides that the Secretary of Commerce has authority to take a census.
What is the American Community Survey?
It is a supplement to the Census to collect statistical information from smaller populations
during the period between each U.S. Census.
It is also governed by Title 13 of the U.S. Code. Under Section 193, the Secretary also has
authority to conduct any preliminary and supplemental surveys related to the main topic of
the Census.
Do I have to fill it out? Is there punishment for not
answering Census or American Community Survey questions?
Current law requires individuals to answer Census questions or face a fine of $100. 12, U.S.C.
Section 221(a). Similarly, people who willfully provide false information on Census forms
may have to pay a fine of $500. 13. U.S.C. Section 221(b). To the best of our knowledge no
one has ever been prosecuted under these statutes. The ACLU cannot tell you how to respond to
the upcoming 2010 Census or the American Community Survey but hopefully this information will
be helpful in formulating your decision.
Do the questions asked on the U.S. Census and the American
Community Survey constitute an unconstitutional invasion of privacy?
No. In U.S. v. Rickenbacker, 309 F.2d 462 (1962), the Second Circuit Court of Appeals
held that the questionnaire did not violate the defendant's right to freedom from illegal
searches and seizures.
In U.S. v. Little, 321 F.Supp.368 (1971) the court found that the authority to gather
reliable statistical data reasonably related to governmental purposes and functions is a
necessity if modern government is to legislate intelligently and effectively and thus not an
invasion of privacy.
What is the ACLU's position regarding the Census?
It is the formal position of the ACLU that the Census serves a vital role in our democracy
and that is why it is required by the Constitution. It determines apportionment for voting,
as well as helps allocate other government benefits such as anti-poverty programs and the
placement of public schools.
However, the ACLU recognizes the countervailing privacy concerns and believes that the answers
to most Census questions should be voluntary.
Is the data collected for the Census or American Community
Survey private?
There are specific and comprehensive statutory protections for Census data under Title 13
U.S.C. Section 9:
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"Neither the Secretary, nor any other officer, or employee
of the Department of Commerce or bureau or agency thereof, or local government
census liaison may ... (1) use the information furnished under the provisions of
this title for any purpose other than the statistical purposes for which it is
supplied; or ... (3) permit anyone other than the sworn officers and employees
of the Department or bureau or agency thereof to examine the individual
reports." |
Courts have held this language to be "clear and unambiguous" in protecting Census information
from disclosure. U.S. v Bethlehem Steel Corp, 21 F.R.D. 568, 569-570 (S.D.N.Y. 1958).
Even if the Department of the Census was allowed to disclose records, no agency could require
them under any legal process or use them if they were somehow disclosed:
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"No department, bureau, agency, officer, or employee of the
Government, except the Secretary in carrying out the purposes of this title, shall
require, for any reason, copies of census reports which have been retained by any such
establishment or individual. Copies of census reports which have been so retained 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." - 13 U.S.C. Section 9.
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Is there anything in the Patriot Act that provides an exemption
to this protection?
No. Any attempt to acquire Census data by the Department of Homeland Security or other agency
would seem to be illegal on its face. Nor would National Security Letters - a type of
administrative subpoena enhanced by the Patriot Act and extensively misused by the F.B.I. -
apply to Census information. 18 U.S.C. Section 2709 (electronic communications records); 12
U.S.C. Section 3414 (a)(5) (financial records); 15 U.S.C. Section 1681 (u) (credit report records).
The U.S. Justice Department recently reached a similar conclusion.
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