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[UPDATE 7/10/12: We have received a few flame comments against the ACS which have been deleted without being published. Only comments -- pro or con -- that are actually reasoned with cited references in support of their argument will be published. Flames do nothing to forward the conversation and will not be tolerated. FGI editors]

Recently we posted about a petition to save the American Community Survey. We received the following comment from reader "David":

What a joke this article is. Social infrastructure and welfare distribution worked just fined [sic] without the ACS, which by the way only officially began in 2000. If there is a 'demographics information' demand, the market will provide that information, it is not the role of the government to provide that kind of luxury.

Besides the ACS and the long arm [sic] (its older brother) Census are not constitutionally mandated. But I guess if your [sic] into big gov, dem or repub you don't care about constitutional boundaries.

Normally we would simply delete this comment because FGI isn't a forum for attacking or defending long-established, legal, respected, government information gathering policies. Unfortunately, this comment is similar to many others we see on the web every day about the Census and similar government information programs. You can hardly find a blog post or newspaper article about the census without also finding a comment very much like this one. They share factual inaccuracies, inflammatory accusations, unsubstantiated assertions, falacious slippery slope arguments, and a fervent distrust of government. In short, these arguments display classic characteristics that marketers and propagandists use to spread Fear, Uncertainty, and Doubt (FUD).

It is, of course, impossible to know the motives behind any given individual or comment, but it is probably reasonable to assume that professional politicians and organizations are aware of what they are doing and some individuals are victims of FUD and are repeating what cynical politicians have told them. Regardless of the intentions behind this comment and those like it, it is surely true that they are at best misguided and at worst intentionally misleading.

So, we decided to take the time to respond to these kinds of arguments against the ACS and the Census. We think it might be helpful to document why we believe ACS is both legal and good.

Although there have always been some people who express doubts and fears about the Census (Callahan), recently some conservative and libertarian politicians are pushing hard to turn these doubts and fears into policy (Canadian Press). It is reported that Britain will drop its census (UPI) and Canada has already scrapped its own long-form Census (Roman) -- prompting the head of Statistics Canada to resign in protest (Proudfoot). In the U.S., in addition to the bill before Congress (H.R. 5326) that would kill the ACS, the Republican National Committee has described the Census Bureau as behaving like "a scam artist" and recommended (RNC) that the American Community Survey be eliminated (which is what H.R. 5326 does), dumbed-down to make it less accurate (which is what Canada has done to its long-form census), or make the ACS no longer mandatory (Groves) .

What this means is that, although censuses have long been an accepted part of modern governments world-wide and most countries conduct regular censuses of their populations (ESRC), there are those, not just in the U.S., who are actively trying to shut down (Seife) or dumb-down (Milligan) national censuses.

When I told a friend I was working on this post, she said, "Oh, no! You're not trying to correct the Internet, are you?" (Munroe). No, this isn't about silly internet debates. This is about an actual, current political attack on something that, until very recently, almost everyone took as a noble and important part of any functioning government.

If we are to discuss the efficacy of the census, the first thing we have to do is get our facts right. Let's look at some of the claims that David and others like him make about the Census and the ACS.

David gets the facts wrong in a very specific way that -- if he were accurate -- would strengthen his case. But he is not correct when he says, "Social infrastructure and welfare distribution worked just fined without the ACS, which by the way only officially began in 2000."

The Facts. What is actually true is that the ACS replaced the "long-form" questionnaire that had been a part of the decennial census since 1940. The Bureau has conducted longer surveys to gather more detailed information than the decennial census since 1850 (Yglesias). The ACS is part of a long history of the government gathering social and demographic information. The ACS is not a new program that suddenly sprang up in 2000. In fact, the Bureau began testing the ACS methodology in 1996 and the first ACS was in 2005, (not 2000) (GAO).

Those who fight to cancel or reduce the accuracy or scope of the Census often claim that it is unconstitutional or otherwise illegal. The RNC makes this claim and says the Census excedes its Constitutionally mandated "scope" (RNC). David writes that "the ACS and the long arm [sic] (its older brother) Census are not constitutionally mandated."

The Facts. The legality of the Census has been repeatedly affirmed by the courts. The gathering of information is done in accordance with the Constitution under the authority of Congress and is regulated by other laws and regulations. It is essential to understand just how important this is. Neither the Census nor the ACS is a wild and crazy abuse of power. It is implemented in a careful, public way under the Constitution, the U.S. Code, and the Code of Federal Regulations -- all with the approval of the courts.

As the Bureau notes, putting the Census in the Constitution (Article I, Section 2) was a significant act of empowering the people over unruly governments:

Enshrining this invention in our Constitution marked a turning point in world history. Previously censuses had been used mainly to tax or confiscate property or to conscript youth into military service. The genius of the Founders was taking a tool of government and making it a tool of political empowerment for the governed over their government. (Census Bureau "Constitution")

Title 13, U.S. Code, does not specify which subjects or questions are to be included in the decennial census. However, it does require the Census Bureau to notify Congress of general census subjects to be addressed 3 years before the decennial census and the actual questions to be asked 2 years before the decennial census. (Census Bureau "Constitution")

The Congressional law is further implemented by regulations which are created by professionals under the supervision of Presidential appointees, announced to the public for comment in the Federal Register, and codified in the Code of Federal Regulations. In the case of the Census, regulations appear in four CRF Titles: 15, 19, 22, 39 (Cornell).

The Government Accountability Office has determined that The Bureau has the authority under 13 U.S.C. § 141 and 13 U.S.C. § 193 to conduct the ACS (GAO). The information gathering also conforms to the Paperwork Reduction Act, the Confidential Information Protection and Statistical Efficiency Act, and the Privacy Act.

All these laws and regulations are subject to further checks and balances through reviews by the courts. The Bureau notes that the courts have repeatedly confirmed the legality of the Census:

On numerous occasions, the courts have said the Constitution gives Congress the authority to collect statistics in the census. As early as 1870, the Supreme Court characterized as unquestionable the power of Congress to require both an enumeration and the collection of statistics in the census. The Legal Tender Cases, Tex.1870; 12 Wall., U.S., 457, 536, 20 L.Ed. 287. In 1901, a District Court said the Constitution's census clause (Art. 1, Sec. 2, Clause 3) is not limited to a headcount of the population and "does not prohibit the gathering of other statistics, if 'necessary and proper,' for the intelligent exercise of other powers enumerated in the constitution, and in such case there could be no objection to acquiring this information through the same machinery by which the population is enumerated." United States v. Moriarity, 106 F. 886, 891 (S.D.N.Y.1901). (Census Bureau "Constitution")

In short, those who claim that the Census or the ACS are not legal are wrong.

David says, "If there is a 'demographics information' demand, the market will provide that information, it is not the role of the government to provide that kind of luxury."

The Facts. Is collecting demographic information a "luxury" and an improper role of government? This is, of course, a matter of opinion, but the facts suggest that having official statistics makes government more efficient and effective and provides information useful to the private sector. Making government effective and efficient shouldn't be considered a luxury by anyone, should it? (We'll examine separately below whether or not "the market" could provide this information.)

The gathering of census information is widely recognized as an essential role of government. The private sector supports this activity (Jacobs). The Wall Street Journal calls conducting the ACS a "useful government purpose." The Economist notes that the ACS "helps target government spending on those who need it most." Business Week points out that the Chamber of Commerce, the National Association of Business Economists, and even conservative think tanks like the Cato Institute, the American Enterprise Institute, and the Heritage Foundation support the public collection of data (Philips). Non-profits and social organizations agree (Baker).

The Decennial Census and American Community Survey are critical not only for "demographics" and Congressional apportionment, but for public policy analysis at the Federal, state and local levels. Policy makers can't know how their policies are affecting citizens without data -- and citizens can't know how they are being affected by their elected officials' policies without data! Even Republican mayors and governors say that Census data help them run their states and cities more efficiently (Loth). Elimination of the ACS would not only make government less efficient, but it would eliminate a critical tool for profit-driven businesses (Hogue). The National Retail Federation told Congress that they wanted a mandatory ACS (Shearman). The ACS is even more important now because the long form of the decennial census was discontinued for the 2010 census. (The long form, by the way, used to be required of one household in six; the ACS questionnaire goes to just one in 46.) The ACS and the Census, rather than being "big gov" (with the implication that "big" is always "bad"), actually do much to keep costs down and assure that governments are spending in a wise and targeted fashion.

So, The Census and the ACS are critical tools for a well-functioning country. Which leads us to our next question: Should we leave it to "the market" to provide us those tools?

David says, "If there is a 'demographics information' demand, the market will provide that information."

The Facts: Although there are lots of private sector companies that repackage government-provided information and combine it with privately gathered information, there is no evidence that the private sector wants to or can gather the kind of information that the government does. In contrast, see above all the business groups and businesses and business press that are supporters of the ACS and the Census.

But this argument also goes against common sense. Imagine if the government stopped collecting the demographic information that it uses to monitor and run government programs and that businesses use to make business decisions. There would be only two alternative scenarios. First, some or all of that data would go uncollected. That would clearly be bad for everyone. Second, the private sector would collect at least some of the data. This raises a host of questions, though: What data would 'the market' value and collect and what data would be deemed by the market as inessential? Would 'market' data be collected, but data that help governments operate efficiently and effectively be left uncollected? What price would 'the market' charge for the data and who would have access to it or be denied access because of costs? Would privacy of respondents be respected? Would there be any transparency or public accountability for market-gathered information the way there is for government-gathered data? Would respondents be more likely to trust business surveys than government surveys and what effect would that have on the accuracy of those surveys?

In short, claiming that 'the market' can adequately serve the very real needs of government and businesses while providing accurate, affordable information is a claim without support and a claim that is contradicted by the business community itself and by common sense.

A favorite claim of those who oppose the ACS and the Census in general is that these surveys are an invasion of citizens' privacy. (David doesn't bring up this point, but it commonly made, so we want to address it here.) The RNC says, for example, that "ACS is an invasion of privacy that demands detailed personal information that the government has no business seeking, knowing, or compiling" and that the Census Bureau is "conducting a dangerous invasion of privacy" and that the Bureau is "violat[ing] the rights and invad[ing] the personal privacy of United States Citizens." These claims are often linked to descriptions of possible, not actual, abuses of power. For example, Ron Paul asks us to "imagine the countless malevolent ways our federal bureaucrats could use this information," and others ask us to imagine "the new American police state" (Loth). David B. Kopel, an associate policy analyst at the Cato Institute, piled on the hypotheticals as far back as 1990, saying the Bureau would "probably" help the Department of Justice and that it "may not even keep its word." Kopel also repeats the story of the federal government's using census data to locate citizens of Japanese descent and imprisoning them in concentration camps.

The Facts. The Census Bureau is bound by Title 13 of the US Code to protect the confidentiality of the information it gathers and it has always done so. Disclosure of confidential Census information is punishable by prison and fines (Census Bureau "Principles"). It cannot share confidential information even with other agencies.

It is against the law for any Census Bureau employee to disclose or publish any private information that identifies an individual or business. This is true even for inter-agency communication: the FBI and other government entities do not have legal right to access census information. In fact, these protections have been challenged, Title 13's privacy and confidentiality guarantees have been upheld. In addition, other federal laws, including the Confidential Information Protection and Statistical Efficiency Act and the Privacy Act, reinforce these protections. (Census Bureau "Privacy")

The purpose of the Census is to create aggregate information, not personal information. In other words, it profiles states, cities, and communities, not individuals, by aggregating (summarizing) the information it gathers from individuals. The personal, individual information is confidential and is not disclosed. The summaries are what we all use every day when we want to know the population of a city of the change in population over time and so forth. The Bureau uses sophisticated statistical procedures to ensure that information about an individual cannot be gleaned from the summary information about cities and communities that it publishes (Census Bureau "Safeguards").

The story of the federal government using census data to locate citizens of Japanese descent in 1942 is at least partially true, but the Census critics oversimplify the facts to the point of making misleading arguments and draw, what I believe to be, the wrong conclusions from it. Until recently, the Bureau has maintained that it did not divulge any confidential information to aid in internment. The Bureau maintained that it did not provide information on individuals, but that it did produce public, summary reports that identified neighborhoods where Japanese-Americans lived (Holmes). The Bureau officially acknowledged and apologized for this activity in 2000 (Watanabe). But a paper published in 2007 (Seltzer and Anderson) says that there is now evidence that the Bureau did, in 1943, provide to the Secret Service information on 79 individuals in the Washington D.C. area. The disclosures were legal at the time (Watanabe). Seltzer and Anderson also say this:

"However, over time, and certainly in retrospect, Census Bureau came to realize that the provision of information gathered under a pledge of statistical confidentiality to law enforcement and intelligence agencies was antithetical to the Bureau's statistical mission.... In the post World War II period, the Census Bureau vigorously sought to end the confidentiality violations sanctioned by the Second War Powers Act."

What lessons can we draw from this experience? I personally believe that the Bureau should not have provided special and personal information during World War II, and am heartened by the fact that the Bureau worked to close confidentiality loopholes in the law. But I am disheartened by the fact that, as recently as 2004, the Bureau provided specially tabulated population statistics on Arab Americans to the Department of Homeland Security (Watanabe). Although the disclosures were legal and only included summary statistics using already-public data, this strikes me as an example of how there are still those who will use "national security" to justify the use of Census data to try to identify individuals.

In short, misuse of Census data has been extremely rare (are there any others than these two?). Misuse of Census data is not a common or recurring or systemic problem. Because the Bureau has a long history of systematic and professional protection of the confidentiality of Census records (see legal and procedural safeguards above and, for example, Benson), hypothesizing worst-case scenarios is more misleading than it is useful or informative.

I draw two conclusions from all this: First, the benefits of gathering the information with the Census and the ACS far outweigh the possible, but unlikely, abuses of that information. Second, I would rather have this kind of information gathered (as it is being done) under the Constitution, the U.S. Code, and the Code of Federal Regulations by elected officials and public servants under transparent conditions, than by un-accountable private-sector companies.

Endnotes

• Baker, Gavin. America Would Know Less Under House Census Policy, OMB Watch (05/16/12).
• Benson, Miles. Census Bureau Answers Snoops With A Simple 'No', Cleveland Plain Dealer, (October 1, 1999). [subscription required]
• Callahan, Maureen Losing Their Census - Every 10 Years, A National Poll Drives Some Americans Crazy, New York Post (October 25, 2009). [subscription required]
• Canadian Press. Census consensus among Conservatives in Canada, U.K., U.S., CTV News (Jul. 11, 2010),
• Confidential Information Protection and Statistical Efficiency Act (Title V of the E-Government Act) 116 STAT. 2962, Public Law 107–347 (December 17, 2002).
• Cornell Law School, Legal Information Institute. Parallel Table of Authorities and Rules: U.S. Code
• The Economist. Penny wise, pound foolish Statistical surveys are not the best candidates for cuts, (May 26th 2012).
• ESRC Census Programme. International census resources
• FactCheck.org. Census Nonsense. (March 18, 2010).
• General Accounting Office. Legal Authority for American Community Survey, B-289852 (April 4, 2002).
• Groves, Robert M. Why Are Some Census Surveys Mandatory?. US Census Director's Blog. June 4, 2012.
• H.R. 5326: Commerce, Justice, Science, and Related Agencies Appropriations Act, 2013
• Hogue, Ilyse. Getting rid of census survey is wasteful, CNN (May 23, 2012).
• Holmes, Steven A. Report Says Census Bureau Helped Relocate Japanese, New York Times (March 17, 2000).
• Jacobs, James A. Private Sector Supports Public Data, FreeGovInfo (2011-09-27).
• Kopel, David B. Confidential information? The check is in the mail, San Diego Union (May 4, 1990) [subscription required].
• Kopel, David. The Federal Leviathan is Counting on You, cato.org (April 4, 2000).
• Loth, Renée. Nonsense attacks on the census. The Boston Globe. (August 28, 2010)
• Milligan, Kevin. Voluntary surveys, mandatory surveys and StatsCan expertise, Worthwhile Canadian Initiative (July 16, 2010)
• Munroe, Randall. Duty Calls, xkcd.
• Paperwork Reduction Act. 44 U.S.C. 3501 et seq.
• Philips, Matthew. Killing the American Community Survey Blinds Business, Business Week (May 10, 2012).
• Privacy Act Of 1974 5 U.S.C. § 552a (1974, amended).
• Proudfoot, Shannon. StatsCan boss quits over census changes, Canada.com (July 21, 2010).
• Rampell, Catherine. The beginning of the end of the census?, New York Times (May 19, 2012).
• Republican National Committee. [Resolution Concerning the American Community Survey] (August 6, 2010).
• Roberts, Sam. Census Survey Asks Too Much, G.O.P. Says, New York Times (August 19, 2010).
• Roman, Karina. Tories scrap mandatory long census, CBC (June 29, 2010).
• Seife, Charles. Killing the Census, Huffington Post (September 23, 2010)
• Seltzer, William, and Margo Anderson. Census Confidentiality under the Second War Powers Act (1942-1947). Paper prepared for the Annual Meeting of the Population Association of America, March 30, 2007, New York, New York.
• Shearman, J. Craig. NRF Says Census Survey Should Remain Mandatory (May 9, 2012).
• Target and the American Community Survey. YouTube
• UPI. Britain dropping census after 2 centuries (July 10, 2010).
• U.S. Census Bureau. Census in the Constitution.
• U.S. Census Bureau. Our Privacy Principles
• U.S. Census Bureau. Privacy & Confidentiality
• U.S. Census Bureau. Questions on the American Community Survey and why we ask
• U.S. Census Bureau. Statistical Safeguards.
• U.S. Census Bureau. Why the American Community Survey is important to America's cities, National League of Cities (June 27, 2011).
• U.S. Supreme Court. Legal Tender Cases, 79 US 457, 12 Wall 457 (1870)
• Wall Street Journal. The GOP's census takers. (2012, May 12). pp. A.14-A.14. [subscription required]
• Watanabe, Teresa. In 1943, Census released Japanese Americans' data, Los Angeles Times (March 31, 2007).
• Wilson, Jill. RIP Census long form, New Republic (May 12, 2010).
• Yglesias, Matthew. Conservatives for Ignorance - The House GOP's principled - and destructive - war on the long-form census, Slate (May 25, 2012).

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