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Wnited States Senate WASHINGTON, DC 20510 December 6, 2018 ‘The Honorable William L. Ross, Jr. Secretary US. Department of Commerce 1401 Constitution Ave, NW Washington, DC 20230 ‘The Honorable Karen Dunn Kelley Deputy Secretary of Commerce USS. Department of Commerce 1401 Constitution Avenue, NW Washington, DC 20230 Dear Secretary Ross and Deputy Secretary Kelley: We are writing in response to reports that the Department of Justice (“DOJ”) is considering violating the confidentiality of information collected through the decennial census, and to seek your commitment to protecting the absolute confidentiality of personal census data as federal law requires. Earlier this month, due to a federal lawsuit, DOJ produced several documents revealing that senior DOJ officials refused to confirm an existing legal opinion that found that no provision within the USA Patriot Act could be used to compel the Commerce Secretary to release confidential information collected by the Census Bureau.! The failure by DOJ to commit to protecting the confidentiality of the census, especially in response to a question from a member of Congress, is troubling not only because it demonstrates a willingness by senior administration officials to roll back data confidentiality protections, but also because it further undermines the likelihood of success of a census already facing significant challenges that are expected to depress response rates and compromise the quality of census data, We urge you to immediately reaffirm the confidentiality protections of the Census Act and to request written confirmation of the 2010 DOJ Office of Legal Counsel (“OLC”) opinion regarding the relationship between the Census Act and the USA Patriot Act from the Attorney General. Since the mid-nineteenth century, the federal government has acknowledged the importance of census privacy and confidentiality, and has expanded safeguards to protect individual records in a number of different ways. In fact, in the very first Presidential proclamation on the census, President Taft stated: Tara Bahrampour, Trump Administration Officials Suggested Sharing Census Responses With Law Enforcement, Court Documents Show, Washington Post, (November 19, 2018), https:/éwwnw, ‘census-responses-with-law-enforcement-court-documents-show/2018/11/19/41679018-ec46-I 1e8-8679- 934a2b33be52_story.html2utm_term=,beS570ec47bd “The sole purpose of the census is to secure general statistical information. ..the census has nothing to do with taxation, 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 iaw or ordinance, nor can any person 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 affairs.” Deviating from this approach can have disastrous consequences. In an appalling episode of American history, census data were shared with the War Department in 1942 to facilitate Japanese American internment; this decision, which resulted in the forced relocation and incarceration of over 100,000 Americans, led the Census Bureau to create safeguards to prevent the future misuse of census data and Congress to strengthen those protections in law. As you know, Title 13, sections 8 and 9 of the U.S. Code now explicitly prevent the Commerce Department and any of its bureaus or agencies from sharing personally identifiable information collected by the census with any external entity or individual. Following the passage of the USA Patriot Act, the federal government emphasized again that the purpose of the census is to collect general statistics, not to support the work of other federal agencies unrelated to the use of aggregate statistics to inform policy development and program administration. On January 4, 2010, the Assistant Atomey General for Legislative A(Tairs, Ronald Weich, issued a Memorandum Opinion stating that the USA Patriot Act “does not require the Secretary of Commerce to disclose census information to federal law enforcement or national security officers where such disclosure would otherwise be prohibited by the Census Act.” However, despite the Census Bureau's historical commitment to confidentiality and privacy, the devastating consequences of violating those principles, the longstanding statutory protections of individual census data, and the reaffimation of those rights in 2010, this summer DOJ attorney Ben Aguinaga crafted intentionally arabiguous responses to questions from Congress? concerning the 2010 OLC opinion “in case the issues addressed in the OLC opinion or related issues come up for renewed debate. ‘You are aware that six former Census Bureau directors have already warned Commerce the addition of a citizenship question will depress the responsiveness of the general public, lower the ? Proclamation for the Thirteenth Decennial Census, March 15, 1910, available at bttps://www.census.gov/history/pdf/ConfidentialityMonograph.pdf (emphases added). > Bahrampour, supra note 1, Representative Gomez’s question was whether there was “any provision of any law that might compel Census to disclose confidential census data for law enforcement or national security purposes?” * https://www.documentcloud.org/documents/5193403-Nov-16-2018-Declaration-of-Andrew-Case- in.html¥document/p27/2466663 quality of data collected, and come at a significant cost to the American taxpayer.’ The possibility of information sharing by the Commerce Department across different agencies threatens to further diminish the trust between the federal government and census respondents, exacerbating the obstacles the 2020 Census already faces. Therefore, itis critical that you clarify, on behalf of the Department of Commerce and Census Bureau, your understanding of the Census Act and the 2010 OLC opinion. The integrity and viability of the 2020 Census requires that you provide the public a forceful reassurance that their census data cannot and will not be shared with law enforcement or for any other non-statistical purpose, Thank you, and we look forward to your response. Sincerely, Cory A. Booker rian Schatz, United States Senator United States Senator Catherine Mazie Chinn United States Senator United States Senator United States Sebfitor 5 We remain unequivocally opposed to adding a citizenship question. If not addressed quickly, the mere ‘suggestion that citizenship information might be shared across agencies could have a colossal chilling effect on Census participation and cause irreparable damage to Census accuracy.