As Census forms reached homes across the country in 2010, some people were being approached by scam artists disguising themselves as Census workers. What they were after, in most cases, was personal information like Social Security numbers, work history and home values, baseline data for possible identity theft.
But others are more afraid of what the government might do with all the information it collects. Some groups, for example, worry that the Patriot Act or other laws allow officials to share information from other agencies with law enforcement authorities. The response from the Justice Department, on the Census at least, is “absolutely not.” On the contrary, officials note, Census information helps minority communities and leads to better enforcement of civil rights laws.
The basic message has been that, despite anti-government anger and free-range paranoia, there’s really nothing to fear. The authorities and most media assure the public that, by law, Census information can’t be shared with any other government agency, including the FBI. Case closed, right? And yet, there are possible legal loopholes, as well as evidence that, in the past at least, collecting Census information has been used as a pretext for government spying.
Perhaps the most egregious abuse occurred during World War II. Census data was brought to the White House -- with the approval of FDR -- and mined for information on which West Coast homes had Japanese occupants. This information was then shared with the military, which used it to round up tens of thousands of Americans of Japanese ancestry for indefinite confinement.
To understand how the FBI could exploit the Census, let’s go back to another time when Congress was eager to liberate intelligence agencies. After the post-Watergate revelations of the mid-1970s, lawmakers had moved briefly toward defining standards for covert operations. By the time the Foreign Intelligence Surveillance Act (FISA) was passed in 1978, however, the mood was shifting back toward broadening the powers of the FBI and CIA.
Congress was responding to complaints that covert programs had been hamstrung by new rules and congressional oversight. Thus, they looked away when the CIA or FBI didn't completely notify Congress about their operations. An infamous case in point was the “secret” war launched in Afghanistan – as it turns out, before the Soviet Union invaded. Nevertheless, many civil libertarians feared that Supreme Court decisions could be even more damaging than congressional action (or inaction). As a result, they supported FISA, which set up a secret court to handle wiretap warrants – the same court that the Bush administration decided to sidestep in its “war on terror.” Emboldened by this win, the FBI and CIA next pushed for legislation to legitimize the kind of covert activities that had provoked protest just a few years before.
A glimpse of how the FBI operated – and how the Census was involved – emerged in early 1980, just days before the launch of that decade’s count. Sometimes it takes only one document to tell a larger story. In this case it was an FBI report about the surveillance of a nurse practitioner in Vermont.
Like many people, Jed Lowy just happened to be in the wrong place at the wrong time. In his case, the place was a so-called “commune” that the Bureau considered a gathering spot for “extremists.” The difference was that Lowy obtained his FBI file via the Freedom of Information Act and then shared it with me.
One entry in the file revealed that the Bureau was trying to identify the driver of a Blue 1970 Volkswagen, which had “previously been observed at New Left locations in Vermont.” The Albany FBI office contacted its Newark, New Jersey counterpart and discovered that the car belonged to a 53-year-old man, Lowy’s father. A search was initiated to see who might be driving it.
The article I wrote for Vermont’s alternative weekly, The Vanguard Press, published on April 4, 1980, charged the bureau with misusing the US Census. The evidence was a document that said the following: “A (deleted) to (deleted) the (deleted) of a spot check for the 1970 census resulted in a (deleted) with the (deleted) from whom the following was obtained.”
Not much to go on. But in a letter to Lowy the Bureau explained that the deleted portions referred to other people whose privacy rights were being protected and the investigative techniques that had been used. Once they had Lowy’s name, they zeroed in on him through the New Jersey Department of Motor Vehicles and continued investigating for another six months. Despite the lack of any evidence of involvement with “extremists,” they kept at it because of an alleged association with the Fresh Ground Coffee House, “a known contact point for extremist(sic) and associated with the Red Mountain Green Commune.”
When I contacted the FBI, an agent in Washington, DC office issued the standard denial: “The FBI does not utilize census information. Period.” Once I read portions of the memo, however, he decided to get back to me. In a follow up call, the new line was that he wasn’t “at liberty to discuss documents that the FBI has.”
He didn’t repeat the denial. We had apparently struck a nerve.
The story created a national sensation. Vermont’s congressional delegation said the repercussions could be serious and promised to investigate. Within days, Lowy was being interviewed on the CBS Evening News. A week after the initial story, the FBI finally acknowledged that, although census information hadn’t been used, an agent had indeed posed as a census worker.\
The technique, a bureau spokesman told The New York Times, was known as “pretext interviews,” in which agents assume false identities. But, he added, new FBI guidelines said that agents shouldn’t pose as representatives of other Federal agencies without the consent of that agency. That, of course, raised the question of what the Census Bureau knew. Unfortunately, the investigation never went that far.
Instead, the FBI released a less deleted version of the memo. What it revealed was that a “pretext call” – the first deleted phrase – to the Lowy home had “resulted in a conversation with the maid…” In other words, the FBI agent had posed as a census worker to find out more about a 30-year-old health worker who had merely visited a “commune.” FBI Director William Webster quickly protested that the technique was legal – but all field offices had been told not to do it.
Attorney General Ben Civiletti was a bit more candid. In a letter to US Senator Patrick Leahy, he said the FBI knew “it is wrong for an FBI agent to pose as a representative of the Bureau of the Census for any reason,” and had so informed its special agents. Webster subsequently put the revised policy on paper: the pretext of being a census employee shouldn’t be used, or even be requested.
Nevertheless, the public never learned whether this was an isolated occurrence or a standard procedure. And that, unfortunately, raises a nagging question. Despite any assurances, how certain are we that Census information is never used by other parts of the government?
Given the many high-tech ways that information can be gathered these days, a visit or “pretext” phone call by a fake Census worker sounds a bit labor intensive and therefore pretty unlikely. On the other hand, the Patriot Act does leave the basic issue unresolved. Section 215 of the law has made it much easier to gain access to records being held by a third party. Under the law, the FBI can force doctors, libraries, bookstores, universities, and Internet service providers to turn over information. All the Bureau needs to do is claim that the request is related to an ongoing terrorism or foreign intelligence investigation. Plus, if that happens the organization turning over the information can’t tell anyone. In other words, if Census information was being used, it would have to remain secret.
To assuage fears, the Justice Department has reassured the Asian Pacific, Black, and Hispanic caucuses in Congress that Section 215 doesn’t override federal statutes guaranteeing the confidentiality of Census data. "If Congress intended to override these protections," wrote Assistant Attorney General Ronald Weich, "it would say so clearly and explicitly."
In addition, amendments to FISA make it necessary to get approval from a top official at either the FBI or CIA when sensitive records are being sought. In short, protections have been increased. Still, that doesn’t mean it’s impossible to get Census data using Section 215. As the US Supreme Court noted in St. Regis Paper v. United States, confidentiality requirements are only binding on specific covered individuals. In other words, census records themselves aren’t off limits, as long as the government can get them from a “non-covered” individual.
Is Census information completely confidential? It’s hard to say. But given the general erosion of privacy rights and the fact that the “war on terror” remains a powerful pretext for all manner of mischief, it’s not a stretch to think that even Census records aren’t completely protected, especially if they can be gotten from a source other than the “designated” officials.
There’s even a name for this – Plausible Deniability. That’s when someone at the top allows an action to be taken by a third party, often a person lower on the chain of command and also less accessible. If something goes wrong, the higher up can deny any knowledge of or connection to what happened.
Not coincidentally, the term was coined by CIA Director Allen Dulles, and first came into public use during post Watergate investigations of intelligence agency abuses. You never know, with a timely pretext it could be back.