United States Court of Appeals, District of Columbia Circuit
May 8, 2019
from the United States District Court for the District of
Columbia (No. 1:18-cv-02711)
Davisson argued the cause for appellant. With him on the
briefs were Alan Butler and Marc Rotenberg.
Carroll, Attorney, U.S. Department of Justice, argued the
cause for appellees. With her on the brief was Mark B. Stern,
Before: Henderson and Millett, Circuit Judges, and Sentelle,
Senior Circuit Judge.
SENTELLE, SENIOR CIRCUIT JUDGE
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.
The E-Government Act
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).
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.
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).
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. § 141(a). The census has historically
included a wide variety of demographic questions, often