FC: Census Bureau abuses personal info of prospective employees

[Declan McCullagh <declan@well.com>]

---------- Forwarded message ----------
Date: Tue, 05 Aug 2003 08:49:54 -0700
From: John Gilmore <gnu@toad.com>
To: declan@well.com, gnu@new.toad.com
Subject: Census Bureau abuses personal info of prospective employees


Date: Mon, 04 Aug 2003 16:49:43 +0000
From: Christopher Effgen <build@gci.net>

Christopher Effgen
6921 Weimer
Anchorage, AK 99502
(907) 248-8363

August 2, 2003
The Honorable Joseph I. Lieberman
Ranking Minority Member Committee on Governmental Affairs
United States Senate

Dear Senator Lieberman,

With respect to the recently released Report to the Ranking Minority Member,
Committee on Governmental Affairs, GAO-03-304, June 2003, the GAO failed to
include in the report the Privacy Act violations that have taken place at
the US Census Bureau.

Among and related to these violations include an estimated:
2 million criminal violations under Title 13 (Census) - a felony
4-6 million criminal violations under the Privacy Act - misdemeanors
2 million criminal violations under the IRCA - misdemeanors
100 thousand civil violations under the Privacy Act, for which the Federal
government has waved its immunity

These events took place long before the Year 2000 Presidential election.
Had any of the Executive branch agencies listened to my complaint at the
time not only would these wrongdoings not have taken place, but also among
the potential consequences, it is reasonable to conclude that Gore, not
Bush, would be in the office of the President.

For the Year 2000 Census, the Bureau determined to automate as many
processes as possible.  In 1995 the agency examined the costs and efficiency
of hiring a large number of employees and agency decided that it would
conduct name-based criminal background checks on applicants.  The agency
knew that the FBI probably would not approve their use of the database, so
they did not bother to try to get the FBI's permission to use the database.

The Census Bureau has access to virtually every database, held publicly and
privately, in the United States for statistical purposes.  To access the FBI
's criminal history databases the Census Bureau did not need the permission
of the FBI, since they could use their privileged access.  Yet, for the Cens
us Bureau to use that access for any other purpose (13 USC 9) would be a
felony (13 USC 214).

Among the problems with using the FBI's name-base criminal history system
for criminal background checks is that the system falsely identifies people
as having a criminal history about as frequently as it correctly identifies
a person as having a criminal history.   To reduce the inherent error rate
involved with such a process the Census Bureau needed more unique individual
identifiers.  The Bureau found a way to get more identifiers by illegally
requiring applicants complete DoJ/INS Form I-9.

The use of INS Form I-9 was established in 1986 with the passage of the
Immigration Reform and Control Act.   Employers are required to have every
employee complete the form at the time of hire to assure that only those who
may lawfully be employed in the United States are hired.

There is no Federal power that regulates the right of the people to be
employed.   To make this law constitutional, Congress relied on its powers
to regulate the employment of immigrants.  Thus Form I-9 is an INS form.  It
was established to regulate employers, who can not lawfully hire
individuals, because of their immigration status.  This is a very important
distinction.  The lawmakers who crafted this law understood that they were
crafting a law that regulated employers not employees.  Should an employee
not complete the form, the civil and criminal penalties would only fall on
the employer.  Employers are thus motivated to require employees complete
the form.  Should an employee not complete the form, the employer has the
right to fire that employee, but that power does not come into being because
of any Federal power, for employers have the right to fire any employee who
does not follow orders.
To ensure that employers did not misuse the form (the way the Census Bureau
used it) Congress established ministerial duties directly upon the President
forbidding changes in which the form is used [8 USC 1324a (d)(2)(C)(D)(E)(F)
and 8 USC 1324a (b)(1)(A)(3)(5)] and established civil [8 USC 1324a
(e)(1)(5)] and criminal [8 USC 1324a (f)] violations with respect to
potential misuse of the form.  These laws were made applicable to every
entity of every branch in the Federal government [8 USC 1324a (a)(7)].

I responded to a television ad by the US Census Bureau for people to conduct
the Year 2000 Census in Alaska by calling the phone number mentioned in the
ad.  Two application packets were mailed to me.  One was for me, the other
for Mitchell, the son of the woman I loved.  When the application packets
came in the mail I looked through them and was surprised to see page 2 and 3
of Form I-9, but no instruction page.  Mitchell took the phone call about
the date location and time for the test.  On that day I drove with Mitchell
to the location, but was told that the Census Bureau had not given any
testing at Job Service.  While there, I asked if they had any copies of the
application package and grabbed two in the event that Mitchell or I made a
mistake in completing one of the forms.  These packets also did not have the
instruction page for DoJ/INS Form I-9 in them.  Since I had been an
employer, I had to administrate the taking of information on the form and
knew that the instruction page needed to be made available to applicants.  I
also knew that it is illegal to require applicants to complete the form at
the time of application for employment.

I contacted the Census Bureau and was told that the test was scheduled for
the next day.  It turned out that I was part of the first testing session
that was going to be held at Job Service.  I was quite happy about this,
because it meant that I would get involved in the work early.

The next day I showed up on time and took my seat.  There were 25 to 30
people in the session.  We were told that we had to complete all the
required forms, and that this included Form I-9.  I objected that this was
an illegal requirement.  The Census Bureau employee administrating the
testing and taking the forms indicated that it didn't matter.  Someone else
in the class asked, what do you need the information for?  The Census Bureau
employee indicated that it was needed for a background check.

We then took the test.  I finished the test early, indicated that I had and
was told to wait that the tests would be graded before we left.  As I sat
there waiting for the other applicants to complete the test, I considered
what was happening.  Applicants to conduct the Year 2000 Census were being
illegally required to complete a federal form for the purpose of a
background check.  They were being required to sign their name at location
on the form, which indicated that they were employees, subject to perjury.
In completing Form I-9, applicants were being required to transcribe
information to a portion of the form that is required to be completed by
employers and the person taking the form was not signing the form as
required by law.

The Census Bureau clearly was going to use this information in the process
of considering, whom to offer employment.  Not only that but the Census
Bureau was going to use the information for some kind of undefined
background check.

As I sat there thinking about what was happening, I realized that the Census
Bureau has access to virtually every database in the United States, both
public and private.  I understood that employers were required to have
employees complete DoJ/INS Form I-9 to ensure that only those who lawfully
could be employed in the United States were employed.

The realization of what was happening struck me like the noise of a key
turning a lock into place.  The Census Bureau intended to use their
privileged access to the FBI's name-based criminal history database to
perform a name-based background check and they were illegally requiring
applicants to complete DoJ/INS Form I-9 to reduce the error rate inherent in
such databases.

In requiring applicants complete Form I-9 the Census Bureau demonstrated
that they knew that the database they were using for the background check
had an error rate.

Yet, this wasn't the only problem that I saw here.  If what the Census
Bureau was doing was lawful, then employers could require individuals
seeking employment to complete an INS form, disclosing their personal
identity information, under penalty of perjury prior to being considered for
employment.  In the digital age, in the circumstance of an individual
seeking to provide for self and family, this digital identity information
could be used to blackball or otherwise categorize and oppress people.

Yet, of these conclusions the only fact that I could prove was that the
Census Bureau was illegally requiring applicants complete Form I-9.  I
therefor determined that I would not complete the part of the form that
indicates it is to be completed by employers, and insisted that my
application for employment be taken.

I then began calling Federal agencies in an effort to prevent what I felt
would be a major disaster both for the federal government and the innocent
people liable to be harmed by the Census Bureau's illegal actions.  I told
these agencies that my right to apply for employment had been illegally
revoked.  My intention was, that once that someone acknowledged that having
ones right to apply for employment illegally revoked was a bad thing, that I
could then explain why I was concerned.  To my shock, no one cared that my
right to apply for employment had been illegally revoked.

Thus I began an effort that has lasted over three and half years to
understand how the Federal government operates.  There is a lot more to this
story, as you no doubt can imagine.

On July 31, 2003, I had an opportunity to speak with one of the authors of
the GAO report, Alan Stapleton (202-512-3418), to explain these violations.
He (like every employee Federal employee that I have contacted with respect
to these issues) indicated that he was not responsible, that he could engage
in no activity without such an activity being at the request of Congress.

Sincerely yours,

Christopher Effgen

Footnotes
  Had any of the Executive branch agencies, to whom I took my complaint in
February 2000, listened and acted on my complaint it is unlikely that
Florida's Secretary of State would have conducted, the name-based background
check that disenfranchised Florida voters. The Secretary of the State of
Florida contracted with Choice Point that ran a name-based criminal history
background check on the list of registered voters in the State of Florida.
Using a data-matching scheme five months before the election, Florida
Secretary of State Katherine Harris ordered the removal of 57,700 names from
Florida's voter rolls on grounds that they were felons.
"My office carefully went through the scrub list and discovered that at
minimum, 90.2 percent of the people were completely innocent of any crime -
except for being African American. We didn't have to guess about that,
because next to each voter's name was their race." Greg Palast -
http://www.gregpalast.com/detail.cfm?artid=217&row=1

  I filed two FoIA requests with the FBI with respect to this issue (Request
No.: 0970060-00).  The FBI indicated that they had no records of the FBI and
the Census Bureau entering into agreements.  If fact the Census Bureau
violated just about every provision of the Privacy Act in taking information
on DoJ/INS Form I-9 and using it without the knowledge or consent of job
applicants.

  Statement Of David R. Loesch Assistant Director in Charge Criminal Justice
Information Services Division Federal Bureau of Investigation On June 21,
2000 Before the Committee on the Judiciary United States Senate Washington,
D.C.
In this important statement Mr. Loesch outlines the error rates discovered
in the FBI's name check system, when comparison is made to the results
derived from the FBI's fingerprint system.
http://judiciary.senate.gov/oldsite/6212000_drl.htm





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