Amicus Curiae Brief — Dep't of Commerce v. New York, 139 S. Ct. 1249 (2019) (No. 18-966)

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No. 18-966

IN THE

Supreme Court of the United States

DEPARTMENT OF COMMERCE, ET AL.,

Petitioners,

Vv.

STATE OF NEW YORK, ET AL.,

Respondents.

On Writ of Certiorari Before Judgment to the

United States Court of Appeals for the Second Circuit

BRIEF OF AMICI CURIAE ELECTRONIC PRIVACY

INFORMATION CENTER (EPIC) AND TWENTY-

THREE LEGAL SCHOLARS AND TECHNICAL

EXPERTS IN SUPPORT OF RESPONDENTS

MARC ROTENBERG

Counsel of Record

ALAN BUTLER

JOHN DAVISSON

MEGAN IORIO

ELECTRONIC PRIVACY

INFORMATION CENTER (EPIC)

1718 Connecticut Ave. NW

Suite 200

Washington, DC 20009

(202) 483-1140

rotenberg@epic.org

April 1, 2019

TABLE OF CONTENTS

EE Se eo ntckccctiicciictcseresssseonsaccsnssennes ii

INTEREST OF THE AMICI CURIAE ......................+- 1

SUMMARY OF THE ARGUMENT............................. 6

PERLE ESL SE Es a ee CO 7

1. Privacy protection ensures the accuracy,

integrity, and reliability of the census.................. 8

Il. The Census Bureau failed to conduct a privacy

impact assessment to evaluate the addition of

the citizenship question as required by the E-

Government Act of 2002. ...............cccccececeeeeeeeeeeees 18

A. Agencies must conduct and publish a

comprehensive privacy impact assessment

before collecting personal data..................... 19

B. The Census Bureau did not assess the risk

that personal data collected for the census

could be transferred to other agencies and

used for purposes unrelated to the census ..24

C. The Census Bureau did not consider the

data security risks posed by collecting

additional sensitive information from

every American household............................ 27

RIT sentecesreinieenenyuteenicthininasiiontaitesiiintlanibiadiicnaidai 29

TABLE OF AUTHORITIES

CASES

Baldrige v. Shapiro,

I , GNI os nncssisccssssedscasoaccneesaneneneneevesonion 6,9

EPIC v. U.S. Dep’t of Commerce,

356 F. Supp. 3d 85, 89 (D.D.C. 2019), appeal

docketed, No. 19-5031 (D.C. Cir. Feb. 21,

SE vcinevssconnctisensmscveuiipccensnensecenerbenseenpecoasentomensncienabne 19

STATUTES

OO 2} | oe 7, 14, 15

44 UBC. & BIGB q..ccceccccrccccescesccccscecoccnecccncosencenecnseseessess 7

Act of Feb. 28, 1800 (to provide for the Second

Census or enumeration of the inhabitants of

the United States), ch. 13, 2 Stat. 11...................... 9

Act of July 2, 1909 (to provide for the expenses

of the Thirteenth December Census, and for

other purposes), ch. 2 36 Stat. 1.............:c:ccccceeeees 13

Act of June 18, 1929 (to provide for the fifteenth

and subsequent decennial censuses and to

provide for apportionment of Representatives

in Congress), ch. 28, 46 Stat. 21............:cccccceeeeeeees 13

Act of Mar. 1, 1790 (for the enumeration of the

inhabitants of the United States), ch. 2, § 7, 1

I a a eecamionn i)

Act of Mar. 1, 1889 (to provide for taking the

eleventh and subsequent censuses), ch. 319,

I I el ahaeiatlinemineininanes 11

Act of Mar. 14, 1820 (to provide for taking the

Fourth Census, or enumeration of the

inhabitants of the United States, and for other

purposes), ch. 24, 3 Stat. 548 ............cccccecceesceeeeeeeeees 9

ili

Act of Mar. 23, 1830 (to provide for taking the

Fifth Census or enumeration of the

inhabitants of the United States), ch. 40, 4

a TIE Sb a Ba TS Ee aa 10

Act of Mar. 26, 1810 (to provide for the Third

Census or enumeration of the inhabitants of

the United States), ch. 17, 2 Stat. 564.000.000.000... i)

Act of Mar. 3, 1839 (to provide for taking the

Sixth Census or enumeration of the

inhabitants of the United States), ch. 78, 5

BC TINUE icbdscbsisestiiadiainbdiahtieidbetiomiasidditiaieikthe tt i a caet wlabctauce 10

Act of Mar. 3, 1849 (to make arrangements for

taking the Seventh Census), ch. 115, 9 Stat.

iii tindiuebiatanehthdheatsiivaiatinnncteniebesdishilbepdineasiéeasstiesthantasscegiies 10

Act of Mar. 3, 1879 (to provide for taking the

tenth and subsequent censuses), ch. 195, 20

ERE RRS ARNE SUR eS a Re Secs ae a ll

E-Government Act of 2002, Pub. L. No. 107-347,

I 19, 20, 21, 25

Pub. L. 87-813, 68 Stat. 1013 (1962)... 14

OTHER AUTHORITIES

Anita Ramasastry, Lost in Translation? Data

Mining, National Security and the "Adverse

Inference" Problem, 22 Santa Clara Computer

& High Tech. Lid. 757 (2006) .0..00.. ccc ccccccceeeeeeeeeee 22

Bruce Schneier, Internet Hacking Is About to Get

Much Worse, N.Y. Times (Oct. 11, 2018)............... 28

Carroll D. Wright & William C. Hunt, History

and Growth of the United States Census:

1790-1890, S. Doc. No. 56-194 (1900) .............. 10, 11

Comm’n on Wartime Relocation and Internment

of Civilians, Personal Justice Denied (1982) ......... 14

David Flaherty, Privacy Impact Assessments: An

Essential Tool for Data Protection (2000).............. 21

Email from Kris Kobach, Sec’y, Kan. Dep’t of

State, to Wilbur Ross, Sec’y, Dep’t of

Commerce (July 21, 2017) ...........ccccccceeeeeceeeeeeeeeeeees 18

EPIC, Department of Homeland Security

Obtained Data on Arab Americans from

Cpnnns Beer Gees CIB oocccecscccscesccccecccccscscosssscsseseeces0 16

Gary T. Marx, Foreword, in Privacy Impact

Assessment (David Wright & Paul De Hert,

ET Ge SE cectiacennemsecencentnnnaieenisivistbtingniasons 21, 22

Gov't Accountability Office, GAO-18-655, 2020

Census: Continued Management Attention

Needed to Address Challenges and Risks with

Developing, Testing, and Securing IT Systems

Se Te esticiaditinienhciiabhinnticeiistiinninebiaeeesinaiernien 28, 29

Joshua B. Bolten, Dir., Office of Mgmt. &

Budget, Executive Office of the President,

M03-22, Memorandum for Heads of Executive

Departments and Agencies, Attachment A §

IL.A.6 (Sept. 26, 2003)............cccccccceeeeeereeees 24, 25, 26

Latanya Sweeney, Simple Demographics Often

Identify People Uniquely (Carnegie Mellon

Univ., Data Privacy Working Paper No. 3,

Letter from Arthur E. Gary, Gen. Counsel,

Justice Mgmt. Div., Dep’t of Justice, to Ron

Jamin, U.S. Census Bureau (Dec. 12, 2017) ...17, 26

Lynette Clemetson, Census Policy on Providing

Sensitive Data Is Revised, N.Y. Times, (Aug.

i a ARI Re fat Se PPD SD Sea 17

Lynette Clemetson, Homeland Security Given

Data on Arab-Americans, N.Y. Times (July 30,

RAT EL Te ARRAY UPN AED at 22 SEA ne 16

Marc Rotenberg, The Sui Generis Privacy

Agency: How the United States

Institutionalized Privacy Oversight After 9-11

(SSRN, Working Paper No, 933690, 2006)............ 22

Margo Anderson & William Seltzer, Census

Confidentiality Under the Second War Powers

Act (1942-1947) (Mar. 29-31, 2007)

(unpublished manuscript) ...............66660ees 14

Margo Anderson & William Seltzer, Challenges

to the Confidentiality of U.S. Federal

Statistics, 1910-1965, 23 J Official Stat. |

EEE SR A RMR Ee anne ea OE 13

Margo Anderson, The American Census; A

Ie HI IIE cic cccnncncantetscecsnsvescecventedessevessnt 10

Mikelyn Meyers, Center for Survey

Management, U.S, Census Bureau,

Presentation on Respondent Confidentiality

Concerns and Possible Effects on Response

Rates and Data Quality for the 2020 Census,

presented at National Advisory Committee on

Racial, Ethnic, and Other Populations Fall

I CIPI Uy SEINE UD scadcnccucssdesonabeuaceesisaso teen sanseseoes 17

Nat'l Acads, of Scis., Eng’g & Med., Innovations

in Federal Statistics; Combining Data Sources

While Protecting Privacy 20 (Robert M.

Groves & Brian A. Harris-Kojetin eds,, 2017) ........ 8

Peter Neumann, Every Computer System Can

Be Compromised, N.Y. Times (Oct. 6, 2014) .....

Proclamation No, 1540, 41 Stat. 1772 (Nov. 10,

Proclamation No, 1898, 46 Stat. 3011 (Novy. 22,

Miaka SORE AIRE OE are AIRS RS AR OO

Proclamation No, 2385, 5 Fed. Reg. ¢ 653 (Feb, 13,

Samuel D. Warren & Louis D. Brandeis, The

Right to Privacy, 4 Harv. L. Rev, 193 (1890).....

Submission for OMB Review, 84 Fed. Reg. 3,748

Se Be ITT shiesscheersdidiniedidbsantisbhen sitinbdauttiuaeniceatie

U.S. Dep't of Commerce, Office of Privacy &

Open Gov't, Privacy Compliance (July 9, 2018)....

U.S. Dep't of Commerce, Privacy Impact

Assessment for the CEN05 Field Systems

Major Application System (June 22, 2018)........

U.S. Dep't of Commerce, Privacy Impact

Assessment for the CEN11 Demographic

Census, Surveys, and Special Processing (June

SITET cesnscassestadeagvuideanseneiaboianiaaniasenneaaeeinennsien

U.S. Dep't of Commerce, Privacy Impact

Assessment for the CEN13 Center for

Economic Studies (CES) (June 26, 2018) ..........

U.S. Dep't of Commerce, Privacy Impact

Assessment for the CEN18 Enterprise

Applications (June 26, 2018)...

U.S. Dep’t of Commerce, U.S. Census Bureau,

Measuring America: The Decennial Censuses

From 1790 to 2000 (Sept. 2002) ............66cc00

edd

vil

U.S. Dep't of Commerce, U.S. Census Bureau,

Policy on Conducting Privacy Impact

Assessments (Nov. 11, 2005)..............cccc0ccceeeees

U.S. Dep't of Commerce, U.S. Census Bureau,

Privacy Impact Assessment for the CENO8

Decennial Information Technology Division

Ce Ne Bis Se cceccacesessscecseseuosnceseseeecens

U.S. Dep’t of Commerce, U.S. Census Bureau,

Technical Review of the Dep't of Justice

Request to Add Citizenship Question to the

2020 Census (Jan. 19, 2018).............0000000c00000

U.S. Dep't of Commerce, U.S. Census Bureau,

Oe BN CE vecentnusenecendesostocscsecces

U.S. Dep't. of Health, Educ. & Welfare,

Secretary's Advisory Committee on

Automated Personal Data Systems, Records,

Computers, and the Rights of Citizens (1973)

]

INTEREST OF THE AMICI CURIAE

The Electronic Privacy Information Center

(EPIC) is a public interest research center in Washing-

ton, D.C.' EPIC was established in 1994 to focus public

attention on emerging civil liberties issues, to promote

government transparency, and to protect privacy, the

First Amendment, and other constitutional values.

EPIC has filed many amicus briefs before this

Court and other federal courts concerning the protec-

tion of privacy. See, e.g., Brief of Amicus Curiae EPIC

et al., Carpenter v. United States, 138 8. Ct. 2206

(2018) (No. 16-402) (arguing that technological

changes since the era of analog phones justify depart-

ing from the third party doctrine); Brief of Amici Cu-

riae EPIC et. al, Spokeo, Inc. v. Robins, 136 8. Ct. 1540

(2016) (No. 13-1339) (arguing that the violation of a

consumer's privacy rights under federal law consti-

tutes an injury-in-fact sufficient to confer Article II]

standing); Brief of Amici Curiae EPIC et. al, NASA v.

Nelson, 562 U.S. 134 (2011) (No. 09-530) (arguing that

the Court should recognize the right to informational

privacy).

EPIC filed an amicus brief in the present case in

the Southern District of Ne w York. See Brief of Amicus

Curiae EPIC, New York, et al. v. Dep't of Commerce, et

al,, 351 F.Supp.3d 502 (S.D.N.Y. 2019), cert. granted

sub. nom. Dep't of Commerce, et al. v. New York, et al.,

No. 18-966 (U.S. Feb. 15, 2019). EPIC has also filed

' Both parties consent to the filing of this brief. In accord-

ance with Rule 37.6, the undersigned states that no mone-

tary contributions were made for the preparation or sub-

mission of this brief, and this brief was not authored, in

whole or in part, by counsel for a party.

suit to block the citizenship question in the 2020 Cen-

sus, alleging that the Bureau failed to complete pri-

vacy impact assessments required under the E-Gov-

ernment Act before initiating the collection of person-

ally identifiable information. EPIC v. Dep't of Com-

merce, 356 F.Supp.3d 85 (D.D.C, 2019), appeal dock-

eted, No. 19-5031 (D.C, Cir. Feb, 21, 2019).

EPIC has a long-standing interest in the privacy

of census data. EPIC contributed directly to the revi-

sions of the Census Bureau’s “sensitive data” policy,

Lynette Clemetson, Census Policy on Providing Sensi-

tive Data Is Revised, N.Y. Times, (Aug. 31, 2004),* fol-

lowing an EPIC Freedom of Information Act (“FOLA”)

lawsuit which revealed that the DHS had improperly

acquired data on Arab Americans from the Census Bu-

reau after 9-11. EPIC, Department of Homeland Secu-

rity Obtained Data on Arab Americans From Census

Bureau; Lynette Clemetson, Homeland Security

Given Data on Arab-Americans, N.Y. Times (July 30,

2004). More recently, as a result of an EPIC FOIA re-

quest, EPIC uncovered emails from former Kansas

State Secretary Kris Kobach to Commerce Secretary

Wilbur Ross, recommending the addition of the citi-

zenship question to the 2020 Census. EPIC also pur-

sued a FOIA request to obtain the Census Bureau's

analysis of the likely public response to the 2020 cen-

sus if the Bureau chose to collect personal data regard-

ing citizenship status. EPIC, EPIC FOIA; EPIC Ob.

tains Documents About Decision to Add Census

* http://www.nytimes.com/2004/08/3 1/us/census-policy-on-

providing-sensitive-data-is-revised, htm].

® https://epic.org/privacy/census/foia.

‘ http://www.nytimes,com/2004/07/30/us/homeland-secu-

rity-given-data-on-arab-americans. html.

Citizenship Question (June 11, 2018).° In formal com-

ments to the Census Bureau, EPIC opposed the deci-

sion to add a citizenship question to the 2020 census.

See EPIC, Comment Letter on Proposed Information

Collection; Comment Request; 2020 Census (Aug. 7,

2018).° In a formal statement to Congress, EPIC also

urged that the Census Bureau remove the proposed

citizenship question from the 2020 Census. 2020 De-

cennial Census; Hearing Before the H. Comm. on Over-

sight & Reform, 116th Cong. (Mar. 14, 2019) (letter for

the record submitted by EPIC).’

EPIC’s brief is joined by the following distin-

guished experts in law, technology, and public policy.

Legal Scholars and Technical Experts

Anita L, Allen

Henry R. Silverman Professor of Law and Phi-

losophy, Vice Provost, University of Pennsylva-

nia Law School

James Bamford

Author and Journalist

Ann M. Bartow

Director, Franklin Pierce Center for Intellec-

tual Property and Professor of Law, University

of New Hampshire School of Law

Simon Davies

Publisher, the Privacy Surgeon, Fellow of the

University of Amsterdam,

® https://epic.org/20 18/06/epic-foia-epic-obtains-docu-

men. html,

® https://epic.org/apa/com ments/EPIC-Census-2020-Au-

gust2018.pdf.

’ Available at https://epic.org/testimony/congress/EPIC-

HCOGR.-Census-Mar2019. pdf.

Founder of Privacy International and EPIC

Senior Fellow

Woodrow Hartzog

Professor of Law and Computer Science,

Northeastern University School of Law

Jerry Kang

Korea Times—Hankook Ilbo Chair in Korean

Am. Studies and Law, UCLA

Lorraine G. Kisselburgh

Lecturer and Fellow, Discovery Park, Purdue

University

Chris Larsen

Executive Chairman, Ripple Inc.

Harry R. Lewis

Gordon McKay Professor of Computer Science,

Harvard University

Gary T. Marx

Professor Emeritus of Sociology, MIT

Mary Minow

Library Law Consultant

Dr. Pablo Garcia Molina

Adjunct Professor, Georgetown University

Dr. Peter G. Neumann

Chief Scientist, SR! International Computer

Science Lab

Helen Nissenbaum

Professor, Cornell Tech Information Science

Frank Pasquale

Professor of Law, University of Maryland

Francis King Carey School of Law

Deborah C, Peel, M.D.

President of Patient Privacy Rights

Dr. Stephanie Perrin

President, Digital Discretion, Inc.

Bilyana Petkova

EPIC Scholar-in-Residence; Assistant Profes-

sor, Maastricht University

Bruce Schneier

Fellow and Lecturer, Harvard Kennedy School

Dr. Barbara Simons

IBM Research (retired)

Edward G. Viltz

President and Chairman, Internet Collabora-

tion Coalition

Jim Waldo

Gordon McKay Professor of the Practice of

Computer Science, John A. Paulson School of

Engineering and Applied Sciences, Harvard

University

Christopher Wolf

Board Chair, Future of Privacy Forum

(Affiliations are for identification only)

SUMMARY OF THE ARGUMENT

Unique among federal agencies, the U.S. Cen-

sus Bureau is authorized by law to compel—from

every person in the United States—personal data in-

cluding age, sex, race, ethnicity, family relationships,

and homeownership status. The extraordinary reach

of the Bureau into the private lives of Americans

brings extraordinary risks to privacy. Accordingly,

“Congress has provided assurances that information

furnished to the [Census Bureau] by individuals is to

be treated as confidential.” Baldrige v. Shapiro, 455

U.S. 345, 354 (1982) (citing 13 U.S.C. §§ 8(b), 9(a)).

These legal obligations, enacted by Congress, include

Section 208 of the E-Government Act, which requires

the Bureau to conduct and publish a privacy impact

assessment before initiating a new collection of per-

sonal data.

The Bureau's addition of the citizenship ques-

tion to the 2020 Census—a step taken without any

evaluation of the resulting privacy risks—works a

clear violation of Section 208. Collecting citizenship

status information from hundreds of millions of U.S.

residents presents enormous privacy and security con-

cerns. As the history of the census reveals, response

data pertaining to national origin is particularly sus-

ceptible to abuse. Nevertheless, the Bureau failed to

conduct a privacy impact assessment before finalizing

the citizenship question in March 2018. As a result,

neither the Bureau nor the public had an informed un-

derstanding of the extraordinary privacy risks in-

volved, the allowable uses of the data gathered, the

less-invasive alternatives to the question, or any pos-

sible steps to mitigate the resulting privacy harms.

This unscrutinized data collection by a federal agency

is precisely what the privacy impact assessment re-

quirement of Section 208 is designed to prevent.

The Court should affirm the decision of the

lower court enjoining the addition of the citizenship

question to the 2020 Census.

ARGUMENT

EPIC recognizes the importance of the decen-

nial census and encourages the use of aggregate data,

derived from the census, in policymaking.* The census

promotes evidence-based policy decisions, and census

data is the source of much political and economic plan-

ning in the United States. However, the accuracy and

integrity of the census depends on the assurance that

the personal information collected by the Census Bu-

reau will be used only by the Bureau and for purposes

consistent with the census.

The importance of record confidentiality for cen-

sus data is widely known. Many of the strictest privacy

laws in the United States limit the collection, use, and

disclosure of census data. See 13 U.S.C. § 9 (“Infor-

mation as confidential”); 44 U.S.C. § 2108(b) (“Respon-

sibility for custody, use, and withdrawal of records”).’

* EPIC testified before the Commission on Evidence-Based

Policymaking and called for the Commission to adopt in-

novative privacy safeguards to protect personal data and

make informed public policy decisions. Marc Rotenberg,

Commission on Evidence-Based Policymaking: Privacy

Perspectives, before the National Academies of Science,

Sept. 9, 2016, https://epic.org/privacy/wiretap/Roten-

bergCEBP-9- 16.pdf.

* The Census Bureau cannot disclose “personally identifia-

ble information about an individual to any other

These laws “are key to respondent trust and ulti-

mately the credibility of the statistical indicators the

agencies produce.” Nat'l Acads. of Scis., Eng’g & Med.,

Innovations in Federal Statistics: Combining Data

Sources While Protecting Privacy 20 (Robert M.

Groves & Brian A. Harris-Kojetin eds., 2017). But the

collection of personal data regarding citizenship status

in the 2020 census raises substantial privacy concerns

and threatens to undermine the accuracy and integ-

rity of the census. Of particular concern to EPIC, the

Census Bureau failed to complete the necessary pri-

vacy impact assessments, required by Section 208 of

the E-Government Act of 2002, prior to the decision to

collect this sensitive personal information. The

agency’s disregard of this core responsibility for the

management of information systems in the federal

government is all the more egregious because there is

no dispute that the data associated with citizenship is

the most consequential collection activity in the 2020

census.

I. Privacy protection ensures the accuracy, in-

tegrity, and reliability of the census.

As the Supreme Court has recognized, “Con-

gress has broad power to require individuals to submit

responses, an accurate census depends in large part on

individual or agency until 72 years after it was collected

for the decennial census” pursuant to a 1952 agreement

between the Archivist of the United States and the Census

Bureau Director, which was subsequently codified by Con-

gress in 1978, Pub. L. 94-416, 92 Stat. 915 (Oct. 5, 1978).

See U.S. Dep't of Commerce, U.S. Census Bureau, The

“72-Year Rule” (2018), https://www.census.gov/his-

tory/www/genealogy/decennial_census_rec-

ords/the_72_year_rule_1.html.

public cooperation.” Baldrige, 455 U.S. at 354 But the

Court has also made clear, “to stimulate that coopera-

tion Congress has provided assurances that infor-

mation furnished . . . by individuals is to be treated as

confidential.” Id. The long history of the U.S. Census

makes clear the importance of privacy protection and

the risks to individuals when confidentiality is not pre-

served.

The first census in 1790 consisted of just six

questions: the name of the head of the household and

the number of inhabitants who were free white males

16 years and older, free white males under 16 years,

free white females, free persons of any other color, and

enslaved persons. U.S. Dep’t of Commerce, U.S. Cen-

sus Bureau, Measuring America: The Decennial Cen-

suses from 1790 to 2000 5 (Sept. 2002).'° From 1790

through 1840, no individual-level data was collected

through the census. /d. at 6-7. During this period, a

copy of the census schedule was posted in “two of the

most public places” in each division for anyone to in-

spect. Act of Mar. 1, 1790 (for the enumeration of the

inhabitants of the United States), ch. 2, § 7, 1 Stat.

101, 103; Act of Feb. 28, 1800 (to provide for the Sec-

ond Census or enumeration of the inhabitants of the

United States), ch. 13, § 7, 2 Stat. 11, 13; Act of Mar.

26, 1810 (providing for the Third Census or enumera-

tion of the inhabitants of the United States), ch. 17, §

7, 2 Stat. 564, 568; Act of Mar. 14, 1820 (to provide for

taking the Fourth Census, or enumeration of the in-

habitants of the United States, and for other pur-

poses), ch. 24, § 7, 3 Stat. 548, 552; Act of Mar. 23, 1830

(to provide for taking the Fifth Census or enumeration

'© Available at https://www.census.gov/history/pdf/meas-

uringamerica.pdf.

of the inhabitants of the United States), ch. 40, § 7, 4

Stat. 383, 387; Act of Mar. 3, 1839 (to provide for tak-

ing the Sixth Census or enumeration of the inhabit-

ants of the United States), ch. 78, § 7, 5 Stat. 331, 335.

The scope of the census greatly expanded in

1850, as did concerns over privacy. Congress estab-

lished a central processing office for census statistics,

the Census Board, which was also delegated responsi-

bility to design the 1850 census questions. Act of Mar.

3, 1849 (to make arrangements for taking the Seventh

Census), ch. 115, 9 Stat. 402; see also Margo Anderson,

The American Census: A Social History 42 (2015). Af-

ter lobbying from a group of scholars and statisticians,

the Board restructured the census to collect individ-

ual-level data. Anderson, supra, at 43. For the first

time, the census required the names of every individ-

ual in a household, along with their age, sex, race, pro-

fession, place of birth, and whether the individual was

“deaf and dumb, blind, insane, idiotic, [a] pauper, or

[a] convict.” Measuring America, supra, at 9-11. Cen-

sus workers were no longer to post the completed

schedules in public; instead, they were instructed

about the importance of confidentiality. Carroll D.

Wright & William C. Hunt, History and Growth of the

United States Census: 1790-1890, S. Doc. No. 56-194,

at 148—50 (1900). The Census Board informed its mar-

shals and assistants:

Information has been received at this of-

fice that in some cases unnecessary expo-

sure has been made by the assistant mar-

shals with reference to the business and

pursuits, and other facts relating to indi-

viduals, merely to gratify curiosity, or the

facts applied to the private use or pecuni-

ary advantage of the assistant, to the

injury of others. Such a use of the returns

was neither contemplated by the act it-

self nor justified by the intentions and de-

signs of those who enacted the law. No in-

dividual employed under sanction of the

Government to obtain these facts has a

right to promulgate or expose them with-

out authority.

Id. at 150. The Census Office established other similar

prohibitions in the years to come. In 1870, census tak-

ers were warned that “[njo graver offense can be com-

mitted by assistant marshals than to divulge infor-

mation acquired in the discharge of their duty. All dis-

closure should be treated as strictly confidential.” Jd.

at 156. For the 1880 census, Congress added a confi-

dentiality clause to the oath of office for enumerators,

requiring them to swear that they would “not disclose

any information contained in the schedules, lists, or

statements obtained by [them] to any person or per-

sons, except to [their] superior officers.” Act of Mar. 3,

1879 (to provide for taking the tenth and subsequent

censuses), ch. 195, § 7, 20 Stat. 473, 475. Breaking this

oath, or communicating “any statistics of property or

business” to a person not authorized to receive that in-

formation, was a misdemeanor carrying a fine up to

$500. Id. at § 12. The 1890 census law removed “of

property or business,” forbidding communication of

any information without authorization. Act of Mar. 1,

1889 (to provide for taking the eleventh and subse-

quent censuses), ch. 319, §13, 25 Stat. 760, 764.

Census privacy concerns continued into the

early twentieth century. President Taft’s proclamation

on the 1910 census reveals a general fear not only that

census takers would disclose individuals’ responses,

but also that the federal government would use census

data for law enforcement purposes:

The sole purpose of the census is to se-

cure general statistical information re-

garding the population and resources of

the country, and replies are required

from individuals only in order to permit

the compilation of such general statistics.

The census has nothing to do with taxa-

tion, 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 law or ordinance, nor can any per-

son 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 af-

fairs. For the due protection of the rights

and interest of the persons furnishing in-

formation, every employee of the Census

Bureau is prohibited, under heavy pen-

alty, from disclosing any information

which may thus come to his knowledge.

Proclamation of Mar. 15, 1910, 36 Stat. 2599. Subse-

quent presidents, including Woodrow Wilson in 1920,

Herbert Hoover in 1930 and Franklin Roosevelt in

1940, would use almost the exact same language in

their proclamations, indicating that the federal gov-

ernment continued to believe that assurances of pri-

vacy were integral to an accurate census. Proclama-

tion No, 1540, 41 Stat. 1772 (Nov. 10, 1919); Procla-

mation No, 1898, 46 Stat. 3011, 3012 (Nov. 22, 1929);

Proclamation No. 2385, 5 Fed. Reg. 653 (Feb. 13,

1940).

Nevertheless, census data was used during this

period for non-census purposes. The 1910 census law

prohibited the use of information supplied by busi-

nesses for non-statistical, non-census purposes, but

there was no such prohibition regarding individual cit-

izen data. Act of July 2, 1909 (to provide for the ex-

penses of the Thirteenth December Census, and for

other purposes), ch. 2, § 25, 36 Stat. 1, 9. As a result,

during World War I, the Census Bureau did in fact dis-

close census records to the Department of Justice and

local draft boards to help enforce the draft. Margo An-

derson & William Seltzer, Challenges to the Confiden-

tiality of U.S, Federal Statistics, 1910-1965, 23 J Offi-

cial Stat. 1, 6-7 (2007). Similarly, in 1920, the Depart-

ment of Justice requested census data about individu-

als’ citizenship for use in deportation cases, Jd, at 8-9.

In 1930, Congress passed a census law that would be-

come known as Title 13, which prohibited the Census

Bureau from publishing any data identifying individ-

uals, Act of June 18, 1929 (to provide for the fifteenth

and subsequent decennial censuses and to provide for

apportionment of Representatives in Congress), ch. 28,

§ 11, 46 Stat. 21, 25. However, the Second War Powers

Act weakened this restriction and permitted the Cen-

sus Bureau in 1943 to provide the U.S. Secret Service

with the names, addresses, occupations, and citizen-

ship status of every Japanese-American residing in

the Washington, D.C. area. Margo Anderson & Wil-

liam Seltzer, Census Confidentiality Under the Second

War Powers Act (1942-1947) 16 (Mar. 29-31, 2007)

(unpublished manuscript).'' The Census Bureau also

provided the War Department with census-block level

data on Japanese-Americans residing in western

states to facilitate their internment. Comm'n on War-

time Relocation and Internment of Civilians, Personal

Justice Denied 104-05 (1982).

Congress in 1962 established strict confidenti-

ality rules for reports submitted to the Census Bureau.

Pub. L. 87-813, 68 Stat. 1013 (1962) (codified as

amended at 13 U.S.C. § 9). The confidentiality provi-

sion has been amended numerous times since then,

and now reads:

(a) 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,

except as provided in [certain subsec-

tions]

(1) use the information furnished

under the provisions of this title

for any purpose other than the sta-

tistical purposes for which it is

supplied; or

(2) make any publication whereby

the data furnished by any particu-

lar establishment or individual

under this title can be identified;

(3) permit anyone other than the

sworn officers and employees of

the Department or bureau or

'! Available at http://studylib.net/doc/7742798/census-con-

fidentiality-under-the-second-war-powers.

agency thereof to examine the in-

dividual reports.

No department, bureau, agency, officer,

or employee of the Government, except

the Secretary in carrying out the pur-

poses of this title, shall require, for any

reason, copies of census reports which

have been retained by any such estab-

lishment 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 ad-

ministrative proceeding.

13 U.S.C, § 9.

The era of automated record-keeping presented

new challenges for federal agencies, including the

Census Bureau, and animated Congress to pass the

Privacy Act in 1974. The Privacy Act was the legisla-

tive culmination of extensive research into the many

threats to individual privacy and autonomy posed by

the use of increasingly powerful computing systems

across the federal government. One of the most influ-

ential studies to which the Congress looked when

drafting the Privacy Act was the 1973 “HEW Report,”

chaired by RAND computer scientist Willis Ware. U.S.

Dep't. of Health, Educ. & Welfare, Secretary's Advi-

sory Committee on Automated Personal Data Sys-

tems, Records, Computers, and the Rights of Citizens

(1973). The federal advisory committee that pro-

duced the report sought to determine the limitations

that should be placed on the application of computer

technology to record keeping about citizens. /d. at 33.

The advisory committee foresaw that sensitive per-

sonal information could be compromised when com-

piled into vast databases that lacked regulatory over-

sight. /d. at 28. Ultimately, the HEW Report outlined

a series of recommendations that became the basis of

the Privacy Act of 1974.

While federal privacy protections have ex-

panded since World War II, there continues to be a risk

of misuse of census data. A 2004 EPIC Freedom of In-

formation Act lawsuit revealed that the Census Bu-

reau had provided the Department of Homeland Secu-

rity with a list of cities containing more than 1,000

Arab-American residents as well as a zip-code level

breakdown of Arab-American populations throughout

the United States, sorted by country of origin. EPIC,

Department of Homeland Security Obtained Data on

Arab Americans from Census Bureau (2019);'* Lynette

Clemetson, Homeland Security Given Data on Arab-

Americans, N.Y. Times (July 30, 2004).'* While the

Census Bureau and Customs and Border Protection

revised their data request policies following EPIC’s

FOIA case, Lynette Clemetson, Census Policy on

Providing Sensitive Data Is Revised, N.Y. Times, (Aug.

'2 Available at https://www.epic.org/privacy/hew 1973re-

port/,

'S https://epic.org/privacy/census/foia.

'4 http://www.nytimes.com/2004/07/30/us/homeland-secu-

rity-given-data-on-arab-americans. html.

31, 2004),'° 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. Mikelyn

Meyers, Center for Survey Management, U.S, Census

Bureau, Presentation on Respondent Confidentiality

Concerns and Possible Effects on Response Rates and

Data Quality for the 2020 Census, presented at Na-

tional Advisory Committee on Racial, Ethnic, and

Other Populations Fall Meeting (Nov. 2, 2017).'®

Given the misuse of census data after 9/11, it is

not difficult to see the risk in the decision to add the

citizenship question to the 2020 census. Communica-

tions between the Department of Commerce, the De-

partment of Justice, and the White House indicate

that the Government plans to use personal data ob-

tained from the citizenship question for purposes un-

related to the census and by agencies other than the

Census Bureau. The Department of Justice purport-

edly intends to use the citizenship data in enforcing

section 2 of the Voting Rights Act. Letter from Arthur

E. Gary, Gen. Counsel, Justice Mgmt. Div., Dep’t of

Justice, to Ron Jamin, U.S. Census Bureau, at 1 (Dec.

12, 2017).'7 Through a 2018 FOIA request, EPIC ob-

tained emails that revealed that Kris Kobach, former

Vice Chair of the now-defunct Presidential Advisory

Commission on Election Integrity, urged Secretary of

'S http://www.nytimes.com/2004/08/3 1/us/census-policy-on-

providing-sensitive-data-is-revised. htm].

'6 https://www2.census.gov/cac/nac/meetings/2017-11/Mey-

ers-NAC-Confidentiality-Presentation.pdf.

'7 https://www.documentcloud.org/documents/434065 1-

Text-of-Dec-2017-DOJ-letter-to-Census. html.

Commerce Wilbur Ross to add the citizenship ques-

tion. Email from Kris Kobach, Sec’y, Kan. Dep’t of

State, to Wilbur Ross, Sec’y, Dep't of Commerce (July

21, 2017).'*

EPIC’s FOIA request also revealed a Census

Bureau analysis of the impact of collecting personal

data about citizenship status. U.S. Dep’t of Commerce,

U.S. Census Bureau, Technical Review of the Dep't of

Justice Request to Add Citizenship Question to the

2020 Census (Jan. 19, 2018).'® The Bureau concluded

that adding a citizenship question is “very costly,

harms the quality of the census count, and would use

substantially less accurate citizenship status data

than are available” from other government sources. /d.

at 1. While the nine-page report shows that the Cen-

sus Bureau considered, on some level, the conse-

quences for accuracy in adding a census question, the

Bureau has not given the same consideration to the

privacy risks associated with the addition.

II. The Census Bureau failed to conduct a pri-

vacy impact assessment to evaluate the addi-

tion of the citizenship question as required

by the E-Government Act of 2002.

The Census Bureau cannot lawfully collect citi-

zenship information because it has failed to conduct

an adequate Privacy Impact Assessment (“PIA”) as

mandated by the E-Government Act of 2002, Pub. L.

'® https://epic.org/foia/censusbureau/EPIC-18-03-22-Cen-

sus-Bureau-FOIA-201806 1 1-Production-Kobach-

Emails.pdf.

'* https://epic.org/foia/censusbureau/EPIC-18-03-22-Cen-

sus-Bureau-FOIA-20180611-Production-Technical-Re-

view-Memo.pdf.

No. 107-347, 116 Stat. 2899. Although the Secretary of

Commerce has ordered the Census Bureau to collect

personal data about citizenship status, the Bureau has

neither completed nor published an evaluation of the

privacy and security risks posed by such data collec-

tion. Moreover, neither the Commerce Department or

the Census Bureau disputes this point. See EPIC v.

U.S. Dep't of Commerce, 356 F. Supp. 3d 85, 89 (D.D.C.

2019) (noting the defendants’ “conce[ssion]” that they

must “prepare PIAs that adequately address the col-

lection of citizenship data in the 2020 Census”), appeal

docketed, No. 19-5031 (D.C. Cir. Feb. 21, 2019). This

matter is now pending before the U.S. Court of Ap-

peals for the District of Columbia Circuit.

A. Agencies must conduct and publish a

comprehensive privacy impact assess-

ment before collecting personal data.

Under Section 208 of the E-Government Act,

federal agencies (including the Census Bureau) must

conduct, ensure the review of, and publish a privacy

impact assessment before “initiating a new collection

of information” that will be digitally stored or trans-

mitted “in an identifiable form.”2° E-Government Act

§ 208(b)(1)(A}{B). A privacy impact assessment, as

defined by the Office of Budget and Management

(“OMB”), is

[A]n analysis of how information is han-

dled to ensure handling conforms to ap-

plicable legal, regulatory, and policy

2° Agencies must also conduct and publish a PIA before

“developing or procuring information technology that col-

lects, maintains, or disseminates information that is in an

identifiable form|.]” E-Government Act § 208(b)(1)(A)(i).

requirements regarding privacy; to deter-

mine the risks and effects of creating, col-

lecting, using, processing, storing, main-

taining, disseminating, disclosing, and

disposing of information in identifiable

form in an electronic information system;

and to examine and evaluate protections

and alternate processes for handling in-

formation to mitigate potential privacy

concerns. A privacy impact assessment is

both an analysis and a formal document

detailing the process and the outcome of

the analysis.

Office of Mgmt. & Budget, OMB Circular A-130, Man-

aging Information as a Strategic Resource 34 (2016)

(“OMB Circular”).?' Section 208, in mandating that a

privacy impact assessment be conducted and pub-

lished before an agency begins the process of collecting

personally identifiable information, serves Congress's

objectives under the E-Government Act of “pro-

mot[ing] better informed decisionmaking by policy

makers’; “provid[ing] enhanced access to Government

information’; “mak[ing] the Federal Government more

transparent and accountable”; and “ensur|ing] suffi-

cient protections for the privacy of personal infor-

mation as agencies implement citizen-centered elec-

tronic Government.” E-Government Act §§ 2(b)(7),

2(b)(9), 2(b)(11), 208(a).

To satisfy Section 208, a privacy impact assess-

ment must disclose, inter alia, “what information is to

be collected”; “why the information is being collected”;

“the intended use [by] the agency of the information”;

2! https://obamawhitehouse archives.gov/sites/de-

fault/files/omb/assets/OMB/circulars/a 130/a130revised.pdf.

“with whom the information will be shared”; “what no-

tice or opportunities for consent would be provided”;

and “how the information will be secured.” E-Govern-

ment Act § 208(b)(2)(B)(ii). Crucially, the assessment

must be “commensurate with the size of the infor-

mation system being assessed, the sensitivity of infor-

mation that is in an identifiable form in that system,

and the risk of harm from unauthorized release of that

information[.]” E-Government Act § 208(b)(2)(B)(i).

“Simply put, a privacy impact assessment seeks to set

forth, in as much detail as required to promote neces-

sary understanding, the essential components of any

personal information system or any system that con-

tains significant amounts of personal information.”

David Flaherty, Privacy Impact Assessments: An Es-

sential Tool for Data Protection (2000).22

Far from a simple box-checking exercise, a pri-

vacy impact assessment is the “the most comprehen-

sive tool yet available for policy-makers to evaluate

new personal data information technologies before

they are introduced.” Gary T. Marx, Foreword, in Pri-

vacy Impact Assessment, at v (David Wright & Paul De

Hert, eds., 1st ed. 2012). As OMB regulations explain:

A PIA is one of the most valuable tools

Federal agencies use to ensure compli-

ance with applicable privacy require-

ments and manage privacy risks. Agen-

cies shall conduct and draft a PIA with

sufficient clarity and _ specificity to

demonstrate that the agency fully consid-

ered privacy and incorporated appropri-

ate privacy protections from the earliest

22 http://www?2.austlii.edu.au/privacy/se-

cure/PLPR/2000/45. html.

stages of the agency activity and

throughout the information life cycle.

OMB Circular app. Ii at 10; see also Anita Ramasa-

stry, Lost in Translation? Data Mining, National Se-

curity and the “Adverse Inference” Problem, 22 Santa

Clara Computer & High Tech. L.J. 757, 794 (2006)

(“[PJerhaps the best way to begin to imagine how we

can safeguard privacy in the wake of data mining is to

require the government to provide robust data-mining

privacy impact assessments.”).

The privacy impact assessments required by the

E-Government Act “are crafted to bring attention to

privacy problems” and to enable agencies to correct

those problems. Marc Rotenberg, The Sui Generis Pri-

vacy Agency: How the United States Institutionalized

Privacy Oversight After 9-11, at 19-20 (SSRN, Work-

ing Paper No. 933690, 2006). When agency officials

conduct an assessment “that shows a program does not

strictly comply or that adequate protections are not in

place, the [agency's] Privacy Office should require that

the program be revised to protect privacy rights.” Jd.

at 31-32. In this way, a privacy impact assessment is

a foundation for a federal agency “to develop better

policy, to save money, to develop a culture of privacy

protection, to prevent adverse publicity and to miti-

gate risks in advance of resource allocation.” Robin M.

Bayley & Colin J. Bennett, Privacy Impact Assess-

ments in Canada, in Privacy Impact Assessment 161—

62 (David Wright & Paul De Hert, eds., 1st ed. 2012);

see also Marx, supra, at xi (“Privacy protection is not

like a vaccination that occurs once and is over. Rather

it is part of an enduring process involving a series of

separate actions.”).

Thus, an agency’s privacy obligations under the

E-Government Act do not end with the initial publica-

tion of a privacy impact assessment. As the OMB in-

structs:

[A] PIA is not a time-restricted activity

that is limited to a particular milestone

or stage of the information system or PII

life cycles. Rather, the privacy analysis

shall continue throughout the _ infor-

mation system and PII life cycles. Accord-

ingly, a PIA shall be considered a living

document that agencies are required to

update whenever changes to the infor-

mation technology, changes to the

agency’s practices, or other factors alter

the privacy risks associated with the use

of such information technology.

OMB Circular app. II at 10; accord U.S. Dep’t of Com-

merce, Office of Privacy & Open Gov't, Privacy Com-

pliance (July 9, 2018);2* U.S. Dep’t of Commerce, U.S.

Census Bvreau, Policy on Conducting Privacy Impact

Assessments (Nov. 11, 2005).24 Specifically, a PLA must

be “updated as necessary where a system change cre-

ates new privacy risks,” including “when new infor-

mation in identifiable form added to a collection raises

the risks to personal privacy (for example, the addition

of health or financial information)” and “when agen-

cies work together on shared functions involving sig-

nificant new uses or exchanges of information in iden-

tifiable form[.]” Joshua B. Bolten, Dir., Office of Mgmt.

& Budget, Executive Office of the President, M03-22,

Memorandum for Heads of Executive Departments

23 http://www.osec.doc.gov/opog/privacy/compliance. html.

24 https://www2.census.gov/foia/ds_policies/ds019.pdf.

and Agencies, Attachment A § II.B.2.g—i (Sept. 26,

2003) (“OMB Guidance”).

B. The Census Bureau did not assess the

risk that personal data collected for the

census could be transferred to other

agencies and used for purposes unre-

lated to the census.

In failing to assess the risks that would result

from the collection of personal data regarding citizen-

ship status, the Census Bureau has violated its obliga-

tions under the E-Government Act.

On September 27, 2018, the Bureau issued the

most recent privacy impact assessment for CEN08, the

primary system used to collect, maintain, and dissem-

inate census response data. U.S. Dep’t of Commerce,

U.S. Census Bureau, Privacy Impact Assessment for

the CENO08 Decennial Information Technology Divi-

sion (DITD) (Sept. 27, 2018). Although the CEN08

assessment acknowledges the Bureau’s plan to collect

citizenship data, the Bureau devotes exactly one word

to this far-reaching change: “Citizenship.” Jd. at 5.

Alarmingly, the CENO8 assessment indicates that

census response data—including individuals’ citizen-

ship status information—may be transferred in

“[bjulk” to other federal agencies “[flor criminal law

enforcement activities.” Id. at 5, 7, 9.

The current privacy impact assessments for the

four other Bureau systems implicated in the 2020 Cen-

sus fare no better. Like the CEN08 assessment, these

25 http://www.osec.doc.gov/opog/privacy/Census%20P1As/

CENO08_PIA_SAOP_Approved.pdf [https://web.archive.org/

web/20190327 1726 12/http://www.osec.doc.gov/opog/pri-

vacy/Census%20PI1As/CEN08_PIA_SAOP_Approved.pdf].

assessments acknowledge the collection of citizenship

data with no more than a single word—if at all. See

U.S. Dep’t of Commerce, Privacy Impact Assessment

for the CEN05 Field Systems Major Application Sys-

tem (June 22, 2018) (including no reference to citizen-

ship data); U.S. Dep’t of Commerce, Privacy Impact

Assessment for the CEN11 Demographic Census, Sur-

veys, and Special Processing (June 22, 2018) (includ-

ing a one-word reference to “Citizenship” data); U.S.

Dep’t of Commerce, Privacy Impact Assessment for the

CEN13 Center for Economic Studies (CES) (June 26,

2018) (including no reference to citizenship data); U.S.

Dep’t of Commerce, Privacy Impact Assessment for the

CEN18 Enterprise Applications (June 26, 2018) (in-

cluding no reference to citizenship data).

The Bureau’s one-word privacy “assessments”

of the proposed citizenship question are utterly inade-

quate to satisfy Section 208 of the E-Government Act.

First, these bare references to citizenship data plainly

fall short of the Bureau’s obligation to produce a pri-

vacy impact assessment that is “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 unau-

thorized release of that information[.]” E-Government

Act § 208(b)(2)(B)(i). The proposed citizenship ques-

tion would reach hundreds of millions of Americans

and would elicit intensely private information con-

cerning respondents’ citizenship and immigration sta-

tus. Second, the existing privacy impact assessments

wrongly ignore that, by posing a citizenship question

on the census, the Bureau would be collecting “new in-

formation in identifiable form [which] raises the risks

to personal privacy ... .” OMB Guidance § II.B.2.i.

Census responses about citizenship status—compelled

by law—could easily be used to carry out deportations

or for other law enforcement purposes, interfering

wholesale with “the right to be let alone.” Samuel D.

Warren & Louis D. Brandeis, The Right to Privacy, 4

Harv. L. Rev. 193 (1890),

Moreover, the Bureau's existing privacy impact

assessments completely fail to address that citizen-

ship data could (and likely would) be transferred to

agencies and persons outside of the Census Bureau,

creating privacy risks for respondents and undermin-

ing the purpose and integrity of the census. See OMB

Guidance § I1.B.2.g. For example, the Department of

Justice (“DOJ”) has demanded access to citizenship in-

formation collected through the census with the pur-

ported aim of calculating “the citizen voting-age popu-

lation in localities where voting rights violations are

alleged or suspected.” Letter from Arthur E. Gary,

Gen. Counsel, Justice Mgmt. Div., Dep't of Justice, to

Ron Jamin, U.S. Census Bureau, at 1 (Dec. 12, 2017).

The Bureau has also promised that if state officials

“indicate a need for tabulations of citizenship data” for

redistricting purposes, “the Census Bureau will make

a design change to include citizenship as part of’ the

census data given to the states. Submission for OMB

Review, 84 Fed. Reg. 3,748, 3,756 (Feb. 13, 2019). And,

as noted, the CEN08 assessment indicates that census

response data may be transferred in “[b]ulk” to other

federal agencies “flor criminal law enforcement activ-

ities.” Id. at 7, 9.

Even if citizenship data were “deidentified” be-

fore dissemination beyond the Census Bureau, there

is a material risk of reidentification. As Dr. Latanya

Sweeney has demonstrated, the “practice of de-identi-

fying data and of ad hoc generalization” used by the

Census Bureau is “not sufficient to render data anon-

ymous because combinations of attributes often com-

bine uniquely to re-identify individuals.” Latanya

Sweeney, Simple Demographics Often Identify People

Uniquely 2 (Carnegie Mellon Univ., Data Privacy

Working Paper No. 3, 2000).2° Using census summary

data and information from other readily available

sources at the time, Dr. Sweeney “found that 87% . . .

of the population in the United States had reported

characteristics that likely made them unique based

only on {5-digit ZIP, gender, date of birth}.” Jd.

In ignoring this serious threat to the privacy of

census respondents, the Census Bureau has flouted its

obligation under the E-Government Act to conduct a

comprehensive privacy impact assessment for the col-

lection of citizenship data.

C. The Census Bureau did not consider

the data security risks posed by collect-

ing additional sensitive information

from every American household.

The Census Bureau's pro forma privacy impact

assessments also fail to address the data security risks

posed by the collection of citizenship information.

Each year individuals face an increasing threat of data

breach—a threat to which even the largest companies

and government agencies have fallen victim. See, e.g.,

Peter Neumann, Every Computer System Can Be Com-

promised, N.Y. Times (Oct. 6, 2014);27 Bruce Schneier,

26 https://dataprivacylab.org/projects/identifiability/pa-

perl pdf.

27 https://www.nytimes.com/roomforde-

bate/2014/10/04/keeping-credit-cards-and-bank-account-

Internet Hacking Is About to Get Much Worse, N.Y.

Times (Oct. 11, 2018).2° Yet the Bureau's privacy im-

pact assessments fail to address the risk that citizen-

ship information might be improperly accessed, both

during and after the Bureau's collection of such data.

These are serious concerns that deserve serious atten-

tion from the Bureau. Absent a thorough evaluation of

these security and privacy risks, the Bureau should

not be permitted to introduce the citizenship question.

In June 2018, the Government Accountability

Office (GAO) reported that the Census Bureau had

acknowledged “3,100 security weaknesses that will

need to be addressed in the coming months.” Gov't Ac-

countability Office, GAO-18-655, 2020 Census: Con-

tinued Management Attention Needed to Address

Challenges and Risks with Developing, Testing, and

Securing IT Systems (Aug. 2018).2° The GAO stated

that “it will be important that the Bureau addresses

system security weaknesses in a timely manner and

ensures that risks are at an acceptable level before

systems are deployed.” Jd. According to the GAO, the

Census Bureau had failed—as of August—to meet its

own schedule for recruiting key personnel necessary to

secure the system and to “incorporate lessons learned

to date from the 2018 End-to-End Test.” /d. at 11.

Moreover, the Bureau had not “identified a specific

time frame for completing these efforts.” Jd. The GAO

had previously warned that the “tight time frames” in-

volved in the 2020 Census changes “could exacerbate”

data-from-hackers/every-computer-system-can-be-compro-

mised.

28 https://www .schneier.com/essays/archives/2018/10/inter-

net_hacking_is_.html.

2° https://www.gao.gov/assets/700/694 169. pdf.

the “significant challenges” that the agency faces in

ensuring adequate cybersecurity measures. /d. at 17.

Given the risk that sensitive census data will be

improperly accessed or breached, the Bureau has not

adequately justified the collection of citizenship infor-

mation or shown that it has implemented the safe-

guards necessary to protect the data that it collects.

CONCLUSION

For the above reasons, amici respectfully ask this

Court to affirm the decision of the U.S. District Court

for the Southern District of New York.

Respectfully submitted,

MARC ROTENBERG

ALAN BUTLER

JOHN DAVISSON

MEGAN IORIO

ELECTRONIC PRIVACY

INFORMATION CENTER (EPIC)

1718 Connecticut Ave. NW

Suite 200

Washington, DC 20009

(202) 483-1140

(202) 483-1248 (fax)

rotenberg@epic.org

April 1, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.