Abuse of the Public Trust

Part One – The Crimes of the US Census Bureau

The census of the population of the United States is mandated to take place every 10 years as required under Article 1, Section of the Constitution. The stated purpose of the census is only to fix the number of representatives each state is entitled to elect to the House of Representatives.

During the debate regarding the operation of the first census, James Madison argued that its purpose should be "extended so as to embrace some other objects besides the bare enumeration of the inhabitants; it would enable them to adopt public measures to the particular circumstances of a community." The issue of the confidentiality of census data changed over the years as the amount and kinds of data collected expand with each census. In 1850, by administrative directive, the confidentiality principle was extended to all census data. With the Census of 1880 it became a misdemeanor to disclose information collected for censuses; and on March 3, 1919, when the Census Bureau became a permanent bureau, it became a felony.

With the passage of the Privacy Act in 1974, the Census Bureau was formally granted the authority to access virtually all information in Federal databases, but its access was subject to the provisions of Title 13 (CENSUS), which makes certain uses of that information a felony. Under the Privacy Act, the Census Bureau has an exemption, "for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13." Under this exemption the Census Bureau has access to virtually all information in Federal databases, such information is therefore confidential, and subject to the access and use requirements provisions of title 13. See 5 USC 552a(b)(4) and See 13 USC 9 and 13 USC 214.

Under Title 13 individuals and businesses are required to answer census forms truthfully. Under the Privacy Act the Census Bureau can compare these answers with, for example, an individual’s tax returns, but it can not disclose any discrepancy to the IRS. If the Census Bureau were to do so, it would be violating promises made by virtually every administration, congresses and the courts that the people of the United States could trust their government. For the Year 2000 Census, the Bureau broke those promises and violated that trust.

On July 16 of 1996 at 11:21, a Year 2000 Census planning document was uploaded to the US Census Bureau’s web server. Section A4 of "Major Features of Census 2000," was named "Criminal History Checks." It explained what would be the Rationale, Description, Positive and Negative Outcomes and Implications of the use of namebased criminal background checks on applicants for employment for the Year 2000 Census. The Census Bureau was concerned that "the FBI may insist that the Census Bureau conduct costly and time-consuming fingerprinting" and that "a full background check may seem demeaning to some applicants." Yet, it was aware that the "absence of a full criminal history check may result in employing some temporary workers that commit crimes while working for the Census Bureau." The public would not be informed because they "may perceive these employees as untrustworthy." Section A4 ends with the conclusion that: "There will be no fingerprinting of any staff."

Because the Census Bureau would only perform a name-based check approximately 1 in 8 people with a criminal history would not be detected, who would have been identified by means of a fingerprint check, and they were cleared for employment.

The Census Bureau was also aware that many people would be wrongly identified as having a criminal history. Of the over 3,500,000 people subject to background checks 23.8% were initially identified as having a name associated with a criminal history. This ratio is analogous to the number of people who do not instantly clear a firearms background check. In the case of firearms checks only 2% of applicants are rejected as a result of the check.

The matching of data between federal government agencies is subject to the Privacy Act. See 5 USC 552a. . Criminal history records are among the class of items, collections or groupings which constitute records under the Privacy Act, which when brought together constitute Systems of Records covered under the Act. See 5 USC 552a(a)(3)(4). Under the Privacy Act, agencies engaging in automated computer data matching are required to form data integrity boards and data matching agreements. See 5 USC 552a(u), and 5 USC 552a(o). When a System of Records is established or significantly changed the agency is required to publish a notice of the system in the Federal register. See 5 USC 552a(e)(4), (11), and (12). Certain exemptions exist for background checks of Federal Personnel. See 5 USC 552a(a)(13). But the Census Bureau would subject all applicants to a background check, prior to considering any particular applicant for employment. The applicants were therefore individuals within the meaning of 5 USC 552a(2), "a citizen of the United States or an alien lawfully admitted for permanent residency

The Supreme Court in United States Department of Justice v. Reporters Committee, 489 U.S. 749, 773 (1989), held that FBI rap sheets were confidential.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=489&invol=749

A criminal background check is a law enforcement action. Individuals subject to an FBI check may have been arrested for crimes that they didn’t commit, as a result of a process they were not told was going to take place.

Since the Census Bureau did not access the FBI’s database under the provisions of the Privacy Act, it could only lawfully gain access to the FBI’s database under its exemption to the Privacy Act. Yet the use of that exemption to gain access to the FBI criminal history files would make the use of the records a felony under the Title 13 (CENSUS)

The Census Bureau also violated provisions of the Immigration Reform and Control Act of 1986 (IRCA). This is the act that mandated the requirement that employers have employees complete Form I-9. Every employer in the United States (including every entity in every branch of the Federal government) is required to have the form completed at time of hire. The reason for completing the form is to protect the rights of those whom may lawfully be employed in the United States. The use of information placed on the form for any purpose other than the verification of an employee’s eligibility to work in the United States is illegal. See 8 USC 1324a (b)(1)(A), (3), (5) illegal acts, which may result in civil fines under 8 USC 1324a (e)(1), (5) and under 8 USC 1324a (f) criminal prosecution. Requiring applicants to complete the form is not permitted by the regulations governing the use of the form. See 8 CFR 1274a.2

In the United States of America the Federal government has not been granted the power to require that applicants for employment register in order to be eligible to apply for employment. In establishing the use of Form I-9 Congress placed duties upon the President to ensure that the use of the Form would not be changed by regulations.

Of concern here are four of these duties.

• 8 USC 1324a (d)(2)(C) Any personal information utilized by the system may not be made available to Government agencies, employers, and other persons except to the extent necessary to verify that an individual is not an unauthorized alien.
• 8 USC 1324a (d)(2)(D) Privacy of information

• 8 USC 1324a (d)(2)(E) Limited denial of verification

• 8 USC 1324a (d)(2)(F) Limited use for law enforcement purposes

DoJ/INS Form I-9 consists of three pages, the Instruction page, an Attestation page and a List of Acceptable Documents page. See Addendum page 6701 to 6703

The Census Bureau determined that it would require applicants complete Form I-9. To do this it withheld from them the Instruction Page, which contains the Privacy Act Notice, that states: "Submission of information required on this form is voluntary.

Applicants who refused to testify under oath that they were a Census Bureau employee were informed that their application would not be accepted without a completed Form I-9. The illegal use of a federal form to deny an individual their rights is a criminal act, under 18 USC 242, "Deprivation of rights under color of law."

This issue is important not only because the most trusted agency in the Federal government, with respect to the confidentiality and use of personal information, engaged in these illegal acts, but because we are entering a new age. In the digital age the quality of databases used to judge us may become more important than the quality of one’s character. The Census Bureau, the Federal government’s most important collector of personal information, knowingly used a faulty database to make personnel determinations. It acted with gross disregard of the laws of the United States against the dignity, rights, freedom, integrity, and liberty of the people.

The news media and the public interest groups are not at all interested in covering this story, even though the number of violations of Federal laws that the Census Bureau engaged in exceeds 300,000,000, and the agency broke promises made to the people that they could trust their government.  I understand that, in part, they are reluctant to investigate this issue because the victims of these crimes were just ordinary people trying to find employment.  They are more concerned about people being searched as they enter planes than they are about people being denied the opportunity to provide for their families.

This story of the abuse of the public trust doesn’t end here. The next essay in this series explores what happens when an individual attempts to stop wrongdoing within the Executive branch of our government.

The Disaster Center

Anchorage, Alaska

July 28, 2005