Re: Privacy of Confidential Census and Tax Information

Dear Representative:

We urge you to oppose proposed legislation that would give the Congressional Budget Office (CBO) access to confidential Census and IRS records about individual Americans. This legislation, which may be offered as an amendment to a must-pass appropriations bill or to other pending legislation, would compromise the privacy of extremely sensitive tax and Census data. Though the amendment appears to be well-intended, legislation presenting such enormous privacy implications should be carefully considered by the appropriate authorizing committees and with public hearings next year. 

The proposed amendment grows out of a request by the CBO for Census records and IRS/ Social Security data to be used in connection with CBO's long term modeling of Social Security and Medicare. The CBO seeks to match the Census and IRS data to further this modeling. 

The Census Bureau has properly raised objections to the request. It has done so on the grounds that the CBO has sought access to Census data that Title 13 properly requires be used only for purposes related to the Census itself. Title 13 also requires that individual Census records be maintained in strict confidence and be made available for examination only under very closely controlled circumstances. While the CBO has sought Census records that have been stripped of information identifying the individuals to whom the data pertains, the proposed legislation granting access to the Census records does not require that identifying information be stripped. Moreover, the Census Bureau has also pointed out that the pairing of even "de-identified" Census and IRS records may make it possible to identify the individual Americans whose data is being examined.

The CBO's request, itself, raises serious privacy issues. It is a prime example of what many term "function creep", where data that is collected in confidence for one purpose is then used for a different, unrelated purpose without the consent of the person to whom it pertains. This violates the central principle of Fair Information Practices, upon which the Privacy Act of 1974 is based. It also illustrates how the matching of data from which the identifiers have been nominally removed can itself lead to the identification of the data subjects. 

This legislative proposal comes at a particularly inopportune time. The nation has just endured a debate about whether the Census is violating the privacy of people in the United States by requiring that they provide it, under penalty of law, with sensitive personal information. Many Americans have already raised legitimate questions about whether Census information will, in fact, be held in strict confidence. The CBO request would further undermine confidence in the ability of the Census Bureau to protect the confidentiality of the data it collects, and would undermine its ability to collect that data altogether.

As troubling as the CBO request for data is, the legislation proposed to provide it with the data it seeks is even more threatening to privacy. The proposal would amend Section 6103 of the Internal Revenue Code and Section 9 of Title 13 to respectively require confidential tax and Census records be turned over to the CBO. Under the proposal, the CBO would be prohibited from the unauthorized disclosure of the data to third parties under the same terms as are the agencies that collected the data, but there are no limits on CBO use of the data. For example, nothing in the proposed legislation would prohibit the CBO from using the data to identify the individuals to whom the confidential data pertains through the matching of various data sources.

It is far too late in this Congress for members to adequately evaluate the enormous privacy implications of the proposed amendment. It would be a serious mistake for the Congress to act until all of the implications have been examined and the privacy of Americans can be assured. We urge you to oppose "eleventh hour" attack on privacy.

We would be happy to discuss this matter with you in greater detail.

Sincerely,

Laura W. Murphy, Director
ACLU Washington National Office

Barry Steinhardt, Associate Director*
ACLU New York National Office

Gregory T. Nojeim, Legislative Counsel
ACLU Washington National Office

*Mr. Steinhardt represents privacy interests on the Census Advisory Committee.