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Electronic Privacy Information Center v. United States Department of Commerce and Bureau of Census

United States Court of Appeals, District of Columbia Circuit

June 28, 2019

Electronic Privacy Information Center, Appellant
v.
United States Department of Commerce and Bureau of the Census, Appellees

          Argued May 8, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:18-cv-02711)

          John Davisson argued the cause for appellant. With him on the briefs were Alan Butler and Marc Rotenberg.

          Sarah Carroll, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief was Mark B. Stern, Attorney.

          Before: Henderson and Millett, Circuit Judges, and Sentelle, Senior Circuit Judge.

          OPINION

          SENTELLE, SENIOR CIRCUIT JUDGE

         On March 26, 2018, the Department of Commerce announced that a citizenship question would be added to the 2020 Census. The Electronic Privacy Information Center (EPIC) contends that, before this announcement was made, its members were entitled to a Privacy Impact Assessment by law. EPIC sued to enjoin the addition of the question on this basis, and now appeals the district court's denial of its motion for a preliminary injunction. Because EPIC lacks standing, we remand to the district court with instructions to dismiss.

         I. Background

         A. The E-Government Act

         In 2002, Congress passed the E-Government Act to modernize and regulate the government's use of information technology. Pub. L. No. 107-347, 116 Stat. 2899 (codified at 44 U.S.C. § 3501 note) (hereinafter "E-Government Act"). The Act outlines eleven purposes. Nine involve improving government efficiency, organization, and decision-making. E-Government Act § 2(b). In addition to these predominantly agency-centric goals, however, the Act also aims to "provide increased opportunities for citizen participation in Government," and "[t]o make the Federal Government more transparent and accountable." §§ 2(b)(2), (9).

         Section 208 of the Act contains privacy provisions. Its stated purpose is to "ensure sufficient protections for the privacy of personal information as agencies implement citizen-centered electronic Government." E-Government Act § 208(a). To effectuate this purpose, § 208 requires federal agencies to conduct, review, and, "if practicable," publish, a Privacy Impact Assessment (PIA) before "initiating a new collection of information" that involves personally identifiable information that will be "collected, maintained, or disseminated using information technology." § 208(b)(1)(A)- (B). A "collection of information" is defined as "obtaining, causing to be obtained, soliciting, or requiring the disclosure . . . of facts or opinions" through "identical questions posed to . . . ten or more persons." 44 U.S.C. § 3502(3)(A). The word "initiating" is not defined by statute.

         A PIA required by a new collection of information must address, at a minimum: what information will be collected, why it is being collected, how it will be used, how it will be secured, with whom it will be shared, whether a system of records is being created under the Privacy Act, and what "notice or opportunities for consent" will be provided to those impacted. E-Government Act § 208(b)(2)(B)(ii).

         B. The Census

         To apportion representatives among the several States, the Census Clause of the United States Constitution requires an "actual Enumeration" of the United States population. U.S. Const. art. I, § 2, cl. 3. The census occurs every ten years, "in such Manner as [Congress] shall by Law direct." Id. Pursuant to this command, Congress passed a series of census laws directing the Secretary of Commerce to conduct a decennial census and establishing the Census Bureau as an agency within the Department of Commerce. 13 U.S.C. §§ 2, 141(a). These laws give the Secretary broad authority to "obtain such other census information as necessary." Id. ยง 141(a). The census has historically included a wide variety of demographic questions, often ...


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