The 2010 Census is underway. You probably know that the Census determines many things, including how many representatives each state has in Congress, how many electoral votes it gets, and how much funding each state gets for various federal programs. You may even have used earlier Census information to trace your family history.
But you may also have heard some confusing things about whether the Census is really required. A phony e-mail, supposedly from the Better Business Bureau, has been making the rounds warning people of Census scams and claiming "REMEMBER, NO MATTER WHAT THEY ASK, YOU REALLY ONLY NEED TO TELL THEM HOW MANY PEOPLE LIVE AT YOUR ADDRESS." This is not true. The BBB does offer some good advice on avoiding census scams ("BBB Alerts Consumers about U.S. Census Workers: Be Cooperative, But Cautious!"), but the e-mail is false. All information on the Census form is required.
The Census is one of the few things in the United States Constitution that the federal government is specifically required to do. For most things, the Constitution defines the powers and duties of government in general terms. For instance, Article I, Section 8 lists the powers of Congress (to raise an army, declare war, create a post office, etc.), but for the most part leaves all the details of whether and how to do so to the Congress.
The Census, however, is specifically described in the Constitution: "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.) This is a crucial part of the Constitution, because the Census determines how many members each state sends to the House of Representatives: "Representatives shall be apportioned ... counting the whole number of persons in each State, excluding Indians not taxed…."
Although the Constitution only requires a head count, the broad language ("in such Manner as they shall by Law direct") has been used to expand the Census to request many additional details. This is not a new phenomenon; from the very first Census in 1790, the count has included the names of head of families and number of people in each family, by age, gender, race, and status as free people or slaves.
The Census Bureau's 92-page booklet "Measuring America: The Decennial Censuses from 1790 to 2000," gives a detailed history of the questions asked and instructions given to the Census takers, reflecting how the Census has changed over time. The questions remained relatively simple until 1850, when the Census expanded to ask 11 questions about each free individual and eight questions about slaves. The number of questions rose over time.
During the Depression, an unemployment category was added; starting in 1940, a housing section was added. By 1960, the Census was asking detailed questions about occupation, health, education, and transportation. Beginning in 1970, detailed questions were sent only to a sample of the population. In 2010, the Census itself has only 10 questions. Detailed questions are asked as a separate survey, the American Community Survey, sent annually to a small sample of households.
Some people refuse to respond to the Census, or refuse to give any information beyond the number of people in their household. Refusing to answer, or answering falsely, can lead to a fine (13 USC § 221), but usually only results in multiple follow-up visits. The most common rationales for refusing are that the Census violates the right to privacy, the Fourth Amendment's guarantee against illegal search and seizure, and the Fifth Amendment's right against self-incrimination. However, the courts have consistently rejected these arguments, on the grounds that the questions relate to important federal concerns, so they are not arbitrary and do not violate the Fourth Amendment (U.S. v. Rickenbacker, 309 F.2d 462 (CANY 1962), and that the information is kept strictly confidential and cannot be used to an individual's detriment (U.S. v. Little, 321 F.Supp. 388 (D.C.Del. 1971)).
Indeed, the Census Bureau is prohibited from sharing an individual's information with anyone, including other government agencies, even under subpoena (13 U.S.C. § 8(c), § 9(a)); only anonymous statistics can be published. There is some historical reason for concern that the Bureau may share information with other agencies. For instance, the Bureau recently admitted for the first time that Census information was used to locate Japanese Americans for internment during World War II. (Census Confidentiality and Privacy: 1790-2002)
But the protections in today's version 13 U.S.C. §§ 8 and 9 are strong and comprehensive: Census information cannot be used to the detriment of the respondent, and cannot be used, published or examined for any purpose other than to prepare statistics. It is immune from legal process, meaning it cannot be subpoenaed, and cannot be admitted as evidence or used for any purpose in any action, suit, or other judicial or administrative proceeding.
These strong privacy and confidentiality protections are described on the Census Bureau's website: "By law, the Census Bureau cannot share respondents' answers with anyone, -- not the IRS, not the FBI, not the CIA, and not with any other government agency. The penalty for unlawful disclosure is a fine of up to $250,000 or imprisonment of up to 5 years, or both." ("Common Privacy Questions: Be assured, your information is safe").
In 1982, the U.S. Supreme Court in Baldridge v. Shapiro (455 U.S. 345, 361 (1982)) confirmed that Census information cannot be disclosed, even when demanded under the Freedom of Information Act or by formal civil discovery in a lawsuit.
These protections are meant to reassure Americans that answering the Census is both important and safe. For more information about the 2010 Census, visit the U.S. Census Bureau's website at www.census.gov. To find and use Census data, visit American Fact Finder at http://factfinder.census.gov/.
By Kate Fitz, Public Services Librarian