What the government gets to know about you should be your choice
Guest editorial by Adi Dynar
Every year, government agents descend on people’s homes threatening
them with huge fines if they do not divulge intimate details about
their lives. The American Community Survey (ACS) is sent to about 3.5
million randomly selected Americans every year. It demands personal
information such as how many beds, cars and phones the household has.
It asks people to disclose their fertility history, sexual
orientation, and history of marriage and divorce. It asks about daily
commute time to work, detailed work history, and how much a person
pays in taxes, rent, mortgage and utility bills.
In 1790, Congress authorized the first census. The law it passed
authorized six simple questions about the number of people who lived
in each home to ensure congressional representation was accurately
apportioned. Interestingly, Congress rejected James Madison’s proposal
to ask about people’s occupations as “a waste of trouble.” That first
Congress, which was closest in time to when the Constitution was
written, rejected the notion that government agents could collect
people’s personal information under its power to count the nation’s
Under the Constitution, the Census Bureau has one job: to count the
number of people in the country for apportioning congressional seats
in the house of representatives. That’s it.
But many people don’t realize that the bureau now also conducts other
surveys in addition to the decennial census. Most of them are
voluntary. For some, the federal government even pays participants.
But the American Community Survey is mandatory, and that compulsion
makes it constitutionally suspect.
The American Community Survey, which asks more than 100 questions,
goes far beyond a simple headcount. If this were a voluntary survey,
people would be free to not answer the questions. No consequences
would follow. But refusing to answer the ACS carries criminal
prosecution and potentially ruinous fines. The Census Bureau
acknowledges that threatening people makes many buckle under the
pressure and disclose their life’s private details to the government
agents. And the bureau doesn’t see any problem with that.
We have seen a steady march toward protecting people’s privacy in the
United States over the last century. As recently as Dobbs v. Jackson
Women’s Health Organization, the Supreme Court has recognized that
people have a constitutional “right to shield information from
disclosure.” Meanwhile, the Census Bureau has marched in the opposite
direction and ended up with a legal position that is unsustainable
under the narrow authority Congress has given it. In short, the bureau
believes that it can compel anyone to divulge any information it may
be interested in under the threat of criminal charges and fines.
Ordering people to disclose highly personal information, or else pay
hefty fines, without suspicion of wrongdoing, without probable cause,
or without a warrant, is unconstitutional. Yet the Census Bureau
asserts it has authority akin to a general warrant — the power to
search and seize anyone they choose for any or no reason at all — when
it randomly selects millions of Americans and orders them to answer
the American Community Survey.
The Bill of Rights zealously safeguards the right to privacy. And this
is exactly the kind of invasion of privacy that Judge Janice Rogers
Brown decried in People v. McKay as “the inevitable [revival] of the
general warrant” and “precisely the kind of arbitrary authority which
gave rise to the Fourth Amendment.”
That is why Maureen Murphy, John Huddleston and thousands of other
Americans are fighting the Census Bureau’s unwarranted intrusion into
their lives. Their pending class-action lawsuit asks the court to
settle once and for all that the bureau lacks the authority to compel
individuals to answer the American Community Survey. The relevant
statute simply does not give the Census Bureau as much power as the
bureau thinks it does.
The right to privacy is as American as apple pie or a baseball game on
the Fourth of July. Simply put, what the government gets to know about
you should be your choice to make. And if a government agent comes to
your home asking you intrusive questions without a warrant or probable
cause, you should have the undiluted right to tell the agent to take a
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Adi Dynar is an attorney at Pacific Legal Foundation, a nonprofit
legal organization that defends Americans’ liberties when threatened
by government overreach and abuse.