but here is a perfect example of the social implication of the instrument which can violate our right to be left alone. The telephone can be designed (at a somewhat higher cost) to provide safeguards forming added protection to prevent it from being socially misused.

Clearly here is an example of the trade-off between dollars and the type of society we want. It will fall to the computer system engineers to make such decisions more and more often in the future.

What a wonderful opportunity awaits the computer engineer to exercise a new form of social responsibility. The advent of the new computer-communications technology need not be feared with trepidation as we approach 1984. Rather, we have in our power a force which, if properly tamed, can aid, not hinder, raising our personal right of privacy.

If we fail to exercise this unsought power that we computer engineers alone hold, the word "people" may become less a description of individual human beings living in an open society and more a mere collective noun.

It may seem a paradox, but an open society dictates a right-to-privacy among its members, and we will have thrust upon us much of the responsibility of preserving this right.

ON THE CONFIDENTIAL STATUS OF CENSUS REPORTS

(By the Thomas F. Corcoran, professional staff member, Subcommittee on Census and Government Statistics, House Post Office and Civil Services Committee)

[When President Kennedy signed Public Law 87-813 on October 15, 1962, businessmen, economists, statisticians and many others breathed a collective sigh of relief. The law, passed in hectic closing days of the 87th Congress, amended section 9 of title 13, United States Code, to extend confidentiality to companyretained copies of census reports. A Supreme Court Court decision on December 11, 1961, in the St. Regis Paper Co. v. the United States had ruled that company-retained copies of reports made to the Census Bureau could be subpoenaed by the Federal regulatory agencies and the information thus obtained used in legal proceedings against the reporting company. The decision, in effect, "placed the entire Federal statistical system in jeopardy" and shook "the confidence of the business community in the Federal reporting system" according to the report of the House Post Office and Civil Service Committee.

The census has always been the keystone of our intricate Federal statistical structure. Confidence is the sine qua non of the census system. In the following article, the subject of census confidentiality is discussed with specific reference to the St. Regis decision and Public Law 87-813.]

On December 11, 1961, a 6-3 decision of the Supreme Court ruled1 in the case of the St. Regis Paper Company v. the United States, that copies of reports filed with the Bureau of the Census could be subpoenaed by the Federal Trade Commission and the information thus obtained used in legal proceedings against the reporting company. Based principally on decisions of lower courts in the Beatrice Foods Company and Bethlehem Steel Corporation cases (see below), it had been generally assumed prior to the Supreme Court decision that copies of census reports did, in fact, have confidential status similar to that of the original reports filed with the Bureau of the Census.

In the decision, the majority opinion of the Court held that section 9 of title 13, United States Code, did not specifically accord the protection of confidentiality to copies of census reports. Mr. Justice Clark, in delivering the majority opinión, stated:

"We fully realize the importance to the public of the submission of free and full reports to the Census Bureau, but we cannot rewrite the Census Act. It does not require petitioner to keep a copy of its report nor does it grant copies of the report not in the hands of the Census Bureau an immunity from legal process. Indeed, when Congress has intended like reports not to be subject to compulsory process it has said so."

1 See Supreme Court of the United States. No. 47, October Term, 1961, St. Regis Paper Company, Petitioner, v. United States, December 11, 1961.

In his dissenting opinion, Mr. Justice Black, with whom Mr. Justice Whitaker and Mr. Justice Stewart concurred, stated:

"But surely the Government's promises, fairly construed, do not indicate that the scope of the protection afforded against the use of census reports 'for purposes of taxation, investigation, or regulation' is limited to the original of those reports and to the Census Bureau alone. The Bureau does not itself even engage in the activities against which the use of these reports is protected. Quite plainly, the promised protection was against governmental ‘taxation, investigation, or regulation' generally, and, to protect the integrity of that promise, it is of course necessary that all of the particular arms of Government which are engaged in those activities be bound by the Government's pledges."

Discussion of the Supreme Court Decision

In order to grasp the full import of the Supreme Court decision in the St. Regis case, it is necessary to understand the confidential relationship which has developed over the years between the Bureau of the Census and the millions of business firms which furnish statistical information to the Bureau, upon request. The census programs most affected are in the fields of manufacturing, mining and other mineral industries, and retail, wholesale, and service trades. In these fields complete censuses are taken every five years, and between censuses a great variety of current surveys are conducted, mostly on a sample basis.

The censuses are mandatory upon respondents; that is, the law provides penalties for refusal to return a filled-out form to the Census Bureau. Some of the current surveys are similarly mandatory, but the law specifies that most of those taken more frequently than annually shall be voluntary. More than half of the surveys, therefore, are voluntary. (See Table I.)

In the economic censuses it has been the regular practice of the Census Bureau to provide a second copy of each inquiry form to be filled out and retained by the respondent. This practice had its first application in the 1937 Census of Manufactures, the first economic census to use the mails instead of enumerators to collect information. It is used in all economic censuses today, and is followed also in the current surveys.

TABLE I.-List of Census Bureau surveys dependent upon responses from businessmen covering the year 1961

TABLE I.-List of Census Bureau surveys dependent upon responses from businessmen covering the year 1961-Continued

Internal combustion engines except outboard, automotive, and air

....do...

craft) (M-35L).

Air-conditioning and refrigeration equipment (M-35M).

Home-type radio receivers and television sets, automobile radios, pho- Quarterly.

nographs, and record player attachments (M-36M).

Backlog of orders for aerospace companies (M-37D).

Aircraft propellers (M-37E).

The end-of-year report is mandatory.

Source: See hearings before the Committee on Post Office and Civil Service, House of Reprecentatives, 1962, "Confidentiality of Census Reports," p. 21.

The retention by respondents of file copies of questionnaires is important for two reasons: (1) when the Census Bureau staff reviews the questionnaires returned by reporting companies, it is often found necessary to communicate with respondents about certain details to secure explanations, corrections, or missing entries, and the retained copy gives the respondent a basis for answering the questions; (2) when the next census or survey is taken, the respondents' file copies of the previous inquiry provide a basis for reporting consistent data, so that the statistics will be comparable over time.

Until the St. Regis decision, businessmen had believed that their retained file copies were invested with the same confidentiality that governed the treatment of the forms returned to the Census Bureau-that they were created for and were to be used only for statistical purposes. They entered on these forms not only book figures but also estimates prepared to meet the Bureau's special needs and not always approved by the firm's accounting and legal departments. These estimates made it possible for the Census Bureau rapidly to compile reasonably accurate industry totals even though not all establishments in the industry kept books in the same way. Although the census was mandatory with respect to book figures, the respondent was under no compulsion to make estimates if book figures were not available; in many instances, he willingly provided estimates in order to assist the Census Bureau, and indirectly his own trade or industry association, in compiling meaningful statistics.

Thus, over the years, the Census Bureau developed a close and effective working relationship with the business community. The uniqueness of this relationship was described by the Solicitor General of the United States when he argued the St. Regis case before the Supreme Court in October, 1961:

"An analyst of the Bureau ... undertakes to work out, with his opposite number in the reporting company, an estimate based on information in the records as kept. the technician of the Bureau of the Census, because of his knowledge of the industry under consideration, may question some estimates as unrealistic and request consideration of other factors before an estimate is agreed upon. In like manner he may doubt, and therefore wish to verify, particular returns. The process of compiling the necessary statistics for even a single company often involves close and continuous collaboration between company technicians and Census Bureau experts."

As a result, the reports filed by business firms with the Census Bureau often contain approximations, estimates, and distributions not readily available from company books or records. Estimates may concern such important matters as inventories, intraplant shipments, and sales of specific commodities to various types of consumers. It should be emphasized that this information is often in excess of the legal requirement and is furnished voluntarily by these firms. It is widely recognized that this voluntary cooperation on the part of the business community has been earned over the years by the Census Bureau principally because of its excellent record in safeguarding the confidentiality of the data in the past and the Bureau's continued assurances that the data so furnished would be treated in strictest confidence.

The Census Act (U.S.C. title 13, sec. 9) states that "information furnished" the Census Bureau will be (1) examined only by "sworn officers and employees" of the Bureau, or the Department of Commerce, its parent organization; (2) used only for "the statistical purposes for which it is supplied"; and (3) compiled in such manner that the data supplied by an individual company cannot be identified.

To emphasize the "confidential" character of its reports, it has been the custom of the Bureau to print on Census questionnaire forms this type of statement: "CONFIDENTIAL-This report should be returned within 30 days of its receipt. This report is required by Act of Congress (13 U.S.C. 131). Your report is confidential and only sworn Census employees will have access to it. It cannot be used for purposes of taxation, investigation, or regulation."

The importance of this promise of confidentiality was underscored in 1959 by the then Director of the Census Bureau-in particular relation to the value of estimates and speedy compilation of data. The Director pointed out that the purpose of the law's provisions of confidentiality was to protect companies "against any harm which might result from their complying with a Census reporting requirement"-and he added:

"This privileged relationship enables the Census Bureau to require response to inquiries which are necessarily formulated on a uniform basis for all com

panies in a particular activity regardless of whether or not their books of record directly yield the requested information. For this and other reasons estimates and approximations are necessarily acceptable in statistical reporting to an extent that would not be acceptable for financial or certain other purposes. Furthermore, it is essential to the economical and speedy consummation of statistical programs that the rules governing reporting permit the companies to authorize subordinate officials to furnish information directly before formal clearance with comptrollers, auditors or company counsel, and that this information frequently be furnished before final figures have been developed in the company record system. In brief, the confidential relationship which is present in Census reporting is vital to its effectiveness." "

The Confidentiality of Census Reports—some background

(a) Reports furnished to the Census Bureau.

Under U.S.C. title 13, section 9, the confidential treatment of census information, reports, and other data furnished to the Bureau of the Census is clearly set forth:

"TITLE 13, UNITED STATES CODE-CENSUS

"S 9. Information as confidential; exception

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'(a) Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, may, except as provided in section 8 of this title **"

For our purposes here, however, it might be helpful to review briefly the historical development of the census laws which gave protection to reports submitted to the census by individuals and business concerns. Before 1880, the decennial census was taken by the U.S. Marshals who, as Federal officers, were expected to protect the information which was collected although there was no specific provision of law requiring that this information be kept confidential. The following prose from the Census of 1840 instructions to Marshals illustrates this point:

"Objections, it, has been suggested, may possibly arise on the part of some persons to give the statistical information required by the act, upon the ground of disinclination to expose their private affairs. Such, however, is not the intent, nor can be the effect, of answering ingenuously the interrogatories. On the statistical tables no name is inserted-the figures stand opposite no man's name; and therefore the objection can not apply. It is, moreover, inculcated upon the assistant that he consider all communications made to him in the performance of this duty, relative to the business of the people, as strictly confidential." (Page 145, History and Growth of the United States Census)

The Act to provide for the 10th and subsequent censuses (20 Stat. 473), approved March 3, 1879, initiated the present system of supervisors and enumerators to replace the U.S. Marshals in the decennial census. This Act required a special census oath which included the phrase: "(I) will not disclose any information contained in the schedules, lists, or statements obtained by me to any person or persons, except to my superior officers." Essentially, this same oath has been required of all census field employees since 1880. The 1880 oath was enforced by a provision of the law which made it a misdemeanor for a supervisor or an enumerator to communicate to any person not authorized to receive the same statistics on property or business unless authorized to do so by the Superintendent of the Census.

The Census Acts for the 11th (1890) and 12th (1900) censuses broadened the scope of the 1880 enforcement provision. The 12th Census Act, approved March 3, 1899, made the enforcement provision applicable to all Census employees: any supervisor, supervisor's clerk, enumerator, interpreter, special agent, or other employee who—shall, without authority of the Director of the Census,

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2 From page 9 of reprint of Decision of U.S. Court of Appeals in FTC v. Dilger. For citation, see note 4 below.

**The exceptions provided in section 8 for release of Census reports for genealogical and other purposes are not pertinent to the discussion here:

(1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied; or

(2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or

(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports.