Last night, while I was doing my weekly StumbleUpon session I came across FactCheck which is a project of the Annenberg Public Policy Center of the University of Pennsylvania. As a researcher, I possessed an initial reaction of excitement at finding an academic website geared at being the Sgt. Joe Friday of the internet. And that excitement grew upon learning through SmartPlanet that Mensa International (actually American Mensa, Ltd.) named FactCheck to its "Top 50" Web Sites 2010.
The first FactCheck article that I chose to read, Census Nonsense, which was written and posted by Mr. Brooks Jackson on Thursday, March 18, 2010 at 6:01 pm, turned out to be the last one for that session because of the sloppy manner in which Mr. Jackson chose to check his facts.
Mr. Jackson's FactCheck article was a rebuttal to The Census Is Getting Personal, a YouTube video created and posted by Mr. Jerry Day a month ago. Mr. Day's video was his commentary on his failed attempt to get a representative of the U.S. Bureau of Census to participate in a recorded interview with him. He tells how he failed to do this because he was required to submit his interview questions beforehand. And, once they were submitted, he claims that his then scheduled interview was canceled without him receiving any answers to his questions.
Mr. Jackson's introductory response to Mr. Day's video was:
A widely circulated anti-Census commentary makes several false claims. The law requires truthful answers and states that they will be kept confidential. Courts have upheld its constitutionality.
The problem that I have with Mr. Jackson's rebuttal is that it did not present any facts that prove that Mr. Day is "anti-Census" or that he made "false claims." Nor did he present any facts that prove his convoluted ascertain that the "law requires truthful answers and states that they will be kept confidential." And, still further, he assumes that courts have "upheld its constitutionality," using a flawed understanding of the opinion of U.S. District Judge Melinda Harmon in MORALES et al. v. DALEY, Secretary of Commerce et al., 116 F.Supp.2d 801 (2000).
Ideally, what I would have liked to do here is to take each of Mr. Day's questions individually with Mr. Jackson's answer to each question based on the facts and analyze them both using the law is it is required to be applied. However, the problem is that Mr. Jackson is too caught up into Mr. Day's commentary and fails to address any of his questions. He instead chooses to attacks various opinions spoken by Mr. Day during the commentary.
So, what I will do is first attempt to address each of Mr. Day's questions in this PART ONE and then attempt to address each of Mr. Jackson's concerns in PART TWO.
QUESTION ONE
Mr. Day: The Constitution authorizes government to count people but it does not authorize the taking of private information or even the names of individuals. From where does the Census Bureau derive authority to demand our private information?
The best commentary that I could find to address this question was the opinion of Justice Sandra Day O'Conner in DEPARTMENT OF COMMERCE et al. v. UNITED STATES HOUSE OF REPRESENTATIVES et al., 525 U.S. 316 (1999).
In the opinion, the Court explains how the U.S. Constitution mandates Congress to conduct a decennial census at Article I, § 2, cl. 3 and § 2 of the Fourteenth Amendment. It further explains how this "constitutional authority" was delegated to the Secretary of Commerce with the enactment of the Act of Mar. 1, 1790, § 1, 1 Stat. 101 (Census Act of 1790) which was introduced by James Madison and signed into law by President George Washington. The Census Act of 1790 is the basis of Title 13 U.S.C. (Census) which is positive law according to the Office of the Law Revision Counsel.
The Census Act of 1790 instructed the Secretary of Commerce to have each census enumerator to swear an oath to make "a just and perfect enumeration" of every person within the division to which they were assigned. Later, the Act of May 23, 1850, § 10, 9 Stat. 430, required that the names of each member of every single family, along with the age and place of birth of each "and all the other particulars specified in this act" be collected as well. And, this authority to collect information on American citizens and inhabitants was redelegated from the Secretary of Commerce to the Director of the Census of the U.S. Bureau of the Census.
QUESTION TWO
Mr. Day: Is there any limit to the amount and type of private information that the Census [B]ureau may demand and collect?
Since Title 13 U.S.C. (Census) is positive law, it can be read directly as a primary authority. It is divided into six odd-numbered chapters. Chapter 3 (Collection and Publication of Statistics) and Chapter 5 (Censuses) address the type of information that Congress authorizes the Secretary of Commerce to "demand and collect."
According to the five subchapters of Chapter 3 (Collection and Publication of Statistics), most of the information that the Secretary of Commerce is authorized to "demand and collect" is industrial information dealing with cotton, oilseeds, nut, kernels, fats, oils, greases, apparels, textiles, and quarterly financial reports from corporate America.
According to the five subchapters of Chapter 5 (Censuses), information is also to be gathered from the manufacturing industries, the mineral industries, the distributive trades, the service establishments, and the transportation sector," as well as from state and municipal governments.
However, Subchapter V (Miscellaneous) of Chapter 3 does list types of "private information" that can be collected.
Title 13 U.S.C. § 101(b) (Defective, dependent, and delinquent classes; crime) reads:
The statistics authorized by subsection (a) of this section shall include information upon the following questions, namely: age, sex, color, nativity, parentage, literacy by race, color, nativity, and parentage, and such other questions relating to such subjects as the Secretary deems proper.
However, this is only permitted for those American citizens and inhabitants that fall into "the defective, dependent, and delinquent classes." And this subchapter also provides for collecting all "judicial statistics pertaining thereto." According to "Report on the defective, dependent and delinquent classes of the population of the United States, as returned at the 10th census (June 1, 1880)" by Frederick Howard Wines, Special Agent, these persons are Americans that have been declared insane, idiotic, blind, deaf and dumb, homeless children, paupers, and criminals.
According to the Second Circuit Court of Appeals in FLORENCE MFG. CO. v. J. C. DOWD & CO., 2 Cir., 178 F. 73, 101 CCA 565 (1910), the legal definition for the word "general public" is:
...that vast multitude which includes the ignorant, the unthinking and the credulous...
The Ninth Circuit almost forty years later added to that legal definition in STORK RESTAURANT, INC. v. SAHATI et al., 166 F.2d 348 (1948):
...that vast multitude which includes the ignorant, the unthinking and the credulous, who, in making purchases, do not stop to analyze, but are governed by appearance and general impressions...
This is the controlling legal definition for the word "general public" to this day. And, this could very well mean that the American general public is part of "defective, dependent and delinquent classes" to which the census is targeted.
Title 13 U.S.C. § 102 (Religion) reads:
The Secretary may collect decennially statistics relating to religious bodies.
However, it does not mention any specifics on how this is to be done.
Finally, Title 13 U.S.C. § 141(g) (Population and other census information), which is located in Subchapter II (Population, Housing, and Unemployment) of Chapter 5, adds that:
"census of population" means a census of population, housing, and matters relating to population and housing.
QUESTION THREE
Mr. Day: Under what Constitutional authority does the Census Bureau collect information now from 250,000 people per month of every year?
The constitutional authority question was answered in Question One. However, Mr. Day here asks a more specific question of which I have not been able, in the last 24 hours to locate an answer that satisfies me. So, I will continue looking and report back.
What I can say in this regard is that this authority may very well stem from Title 13 U.S.C. § 181(a) (Population) which reads:
During the intervals between each census of population required under section 141 of this title, the Secretary, to the extent feasible, shall annually produce and publish for each State, county, and local unit of general purpose government which has a population of fifty thousand or more, current data on total population and population characteristics and, to the extent feasible, shall biennially produce and publish for other local units of general purpose government current data on total population. Such data shall be produced and published for each State, county, and other local unit of general purpose government for which data is compiled in the most recent census of population taken under section 141 of this title. Such data may be produced by means of sampling or other methods, which the Secretary determines will produce current, comprehensive, and reliable data.
QUESTION FOUR
Mr. Day: The 4th Amendment to the Constitution prohibits government search and seizure of private information without a court warrant based on probable cause, Current Census policies violate that Amendment do they not?
The Fourth Amendment has a word in it the Mr. Day conveniently left out. That word is unreasonable. Based solely on that, this question is moot in that due to the fact that the census is constitutionally mandated, it can be assumed to be reasonable.
QUESTION FIVE
Mr. Day: By what Constitutional authority does the Census Bureau threaten penalties for failure to provide personal information?
Again, the constitutionality in not the issue. The issue is did Congress delegate to the Secretary of Commerce penal authority which was then redelegated to the Director of the Census and what exactly is that penal authority?
Chapter 7 (Offenses and Penalties) of Title 13 list all of the penalties that one may be subject to concerning the census. It is divided into three subchapters. Subchapter I (Officers and Employees) deals with the penalties the someone working for the U.S. Bureau of the Census may incur for things like providing false information to any American. Subchapter III (Procedures) simply states that the only evidence that can be used against anyone in relation to a violation of a census law is the signed return receipt card that provided that the U.S. Bureau of the Census sent that person a census questionnaire via certified mail.
Now, Subchapter II (Other Persons) is the source of two statutes of which I have heard a lot about in discussions concerning the census.
Title 13 U.S.C. § 221 (Refusal or neglect to answer questions; false answers) reads:
(a) Whoever, being over eighteen years of age, refuses or willfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100.
(b) Whoever, when answering questions described in subsection (a) of this section, and under the conditions or circumstances described in such subsection, willfully gives any answer that is false, shall be fined not more than $500.
(c) Notwithstanding any other provision of this title, no person shall be compelled to disclose information relative to his religious beliefs or to membership in a religious body.
Title 13 U.S.C. § 222 (Giving suggestions or information with intent to cause inaccurate enumeration of population) reads:
Whoever, either directly or indirectly, offers or renders to any officer or employee of the Department of Commerce or bureau or agency thereof engaged in making an enumeration of population under subchapter II, IV, or V of chapter 5 of this title, any suggestion, advice, information or assistance of any kind, with the intent or purpose of causing an inaccurate enumeration of population to be made, shall be fined not more than $1,000 or imprisoned not more than one year, or both.
The legal construction of these statutes only gives them force if a violation occurs involving subchapters I, II, IV, and V of chapter 5. However, Title 13 U.S.C. § 191(a) Geographic scope of censuses reads:
Each of the censuses authorized by this chapter shall include each State, the District of Columbia, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and the Commonwealth of Puerto Rico, and as may be determined by the Secretary, such other possessions and areas over which the United States exercises jurisdiction, control, or sovereignty. Inclusion of other areas over which the United States exercises jurisdiction or control shall be subject to the concurrence of the Secretary of State.
This means that the ONLY time that a penalty can be incurred is when the census is conducted within it proper geographical setting which is in the U.S. territories and possessions. So, an American within the several states is neither subject to the census nor its penalties.
QUESTION SIX
Mr. Day: The Census Bureau claims it maintains privacy of personal information[.] Are there any circumstances under which law enforcement or spy agencies can access Census information?
This is another question that I would have to devote a lot of research to just to come up with an answer that satisfies me.
All I can say now is that I would not trust ANY on my personal information going into ANY database.
QUESTION SEVEN
Mr. Day: Since presumably [c]ensus data may be subpoenaed by law enforcement, may individuals refuse to answer questions according to the [F]ifth Amendment?
The Fifth Amendment is based upon the legal maxim "Nemo tenetur seipsum accusare" which means that "no man is bound to accuse himself." So, any American is ALWAYS able to use it to refrain from answer question from any agency of the executive branch of government. And, there reality is that the U.S. Bureau of the Census is an agency of the Executive branch of government and exercises the police powers of that branch in the performance of its duties.
QUESTION EIGHT
Mr. Day: Why has the Census Bureau decided to collect GPS coordinates for every home?
Yet, another question that I have to research and get back to you on. But, on the face of it, it does not sound beneficial to the Americans whose home now have their GPS coordinates in the federal government's database.
QUESTION NINE
Mr. Day: Virtually every government database has been either lost, hacked or compromised, would the Census Bureau's claim of data security not be an outright lie or at best highly improbable?
Good question.
QUESTION TEN
Mr. Day: How would the Census Bureau locate, protect and compensate those individuals whose data becomes compromised?
Another good question.
So, in closing, allow me to say that what I have learned from conducting the research to answer Mr. Day's question with the available facts has actually raised more questions than it has answered concerning the census and how it relates to the average American.