What the government gets to know about you should be your choice

  • 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
    * * * * *
    Adi Dynar is an attorney at Pacific Legal Foundation, a nonprofit
    legal organization that defends Americans’ liberties when threatened
    by government overreach and abuse.
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