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Case number 19-5031, electronic privacy information center appellant versus United States Department of Commerce at L. Mr. Davidson for the appellant, Ms.

[00:00:12] Speaker 00:
Carroll for the appellee.

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Good morning, Your Honors.

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John Davison from the Electronic Privacy Information Center.

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I've reserved two minutes of my time for a bottle.

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Your Honors, the E-Government Act requires every federal agency that intends to collect personal data to conduct a detailed privacy impact assessment before initiating a new collection of information.

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Section 208 and the OMB regulations set out the requirements for those impact assessments.

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Assessments must be commensurate with the size, the sensitivity, and the privacy risks of collection.

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Assessments must explain how the data is going to be used, protected, and possibly distributed.

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And most importantly, each assessment must be completed, reviewed, and made public before the agency initiates collection.

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That's the key thing here is they haven't initiated one yet.

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Well, Your Honor, so the initiation of initiating a new collection of information is the statutory trigger.

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And they have not collected the first datum yet, have they?

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That's correct, Your Honor.

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All right, good.

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So what are you doing here?

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Fair enough, Your Honor.

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So initiating a new collection of information, and specifically the phrase collection of information, has to be understood in the context of the provision.

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Yeah, right.

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And in the context of it, they haven't collected the first datum yet.

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Your Honor, that is the collecting of information or the having of it.

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What's the need for you braying here?

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Pardon me, Your Honor?

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What relief are you praying here?

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A preliminary injunction, Your Honor.

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A preliminary injunction against what?

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Requiring the Census Bureau to suspend the collection of information until it is completed.

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No.

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Aren't you asking the District Court to enjoin them from initiating?

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Isn't that the term you use in your prayer for relief?

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Well, they have already initiated, but we are asking... Isn't that what you asked the Court to do, to stop them from initiating?

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Am I wrong about that?

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Well, sorry.

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Just to back up a little bit, sorry.

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So we argue that the initiation of collection occurred on March 26, 2018.

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I know you're arguing that, but does that make any sense when you're asking us to prevent them from initiating?

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We are asking them to suspend initiation, suspend collection that is already underway.

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The collection of information, Your Honor, is a process.

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It's clear from the... How can it be the intent of Congress in using the word initiate

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to mean that you have to do before you even start thinking about doing it.

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You have to file the PIA before you even think about it, before you even announce that you're going to be collecting it.

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Your Honor, that's not what I meant.

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That's not the meaning we're proposing.

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We're proposing that the PIA is due before the agency concludes its decision-making process and begins the agency process of collection.

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Has it concluded its decision-making process?

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It has, Your Honor.

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It took final agency action on March 26, 2018, and the agency concedes that point.

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What did they say on March 28?

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What did they do on March 28?

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They concluded that citizenship information would be collected on the 2020 census.

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So they were saying we're going to initiate in the 2020 census?

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that they did not begin collection, did they?

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Your Honor, the collection of information, if one refers to the collection of a debt, it's referring to a process that a debt collector undertakes to obtain money from someone who owes the debt.

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In the same way, the collection of information is a process... Does the collection of a debt happen before you make a demand to the person that owes the debt?

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The debt is not collected until the information... No, no, until you demand that they pay.

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They haven't demanded that anybody

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turn over or say anything.

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Yeah, I think that's Judge Centell's point.

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I don't think that collection helps you.

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So in the case of a collection of a debt, there are several antecedent steps that have to happen as part of the collection process.

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They would have to identify... For example, the preparation of the PIA, that has to happen before they initiate their process under the law.

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Well, so let me point to the statutory definition here.

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The statutory definition of collection of information points to four different sub-definitions, and then those definitions are further developed in the OMB regulations.

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And the OMB regulations make it clear that one of the interpretations that that definition is susceptible to is a plan or an instrument calling for the collection of information.

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And so that is precisely what's been initiated here.

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The agency has begun to implement the plan that it decided

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on over a year ago, that it has a series of steps that it must take as part of the collection process.

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They include notifying Congress pursuant to Title 13 of what's going to be collected, of developing the census form, of

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Notifying the OMB, what information is going to be collected, printing the census forms, addressing them, mailing them, ensuring they'd be delivered to the respondents.

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All of these steps are a necessary part of the collection of information, even though no information has been collected to date.

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And those are the steps that were initiated when the decision-making process concluded and the implementation of the collection began again on March 26, 2018.

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I'm trying to understand, given that nobody's

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No forms are going to be mailed or emailed out, so no one's going to be requested to provide this information before 2020, correct?

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That's correct, Your Honor.

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Do you know if they go out on January 1, or when do they go out in 2020?

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I don't know the exact date.

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So at some point in 2020, no one's going to be asked.

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to disclose any information, to do anything that's going to implicate their privacy.

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Nobody is.

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And if before, I'm trying to figure out what on earth is irreparable about your injury, because as long as they do, as they have said, these privacy assessments before, and they've said they're going to do them before those get mailed out, you're not irreparably injured.

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We're on the harm here.

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We've got plenty of time to litigate the timing on this.

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There's plenty of time to litigate a case between now and 2020.

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This isn't normally a type of thing where we'd be crashing up here for a preliminary injunction.

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Your Honor, the printing of census forms begins in about a month.

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And at that point... It might be a royal pain for them if they were to go, I'm dubious, given the nature of these assessments, but if they were to get to the very last system in December 2019 and do the privacy assessment and go, whoa,

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maybe we shouldn't be collecting this, then any injury's on them.

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You're not irreparably injured if they have to change their mind and reprint the forms without the question, right?

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You're not injured.

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You're in fact happy about that.

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So don't point to that as your irreparable injury.

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As long as they make their assessment before these things are mailed out,

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You're not irreparably injured.

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Well, Your Honor, there is an active nationwide debate right now about the census, about the addition of the census.

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There sure is.

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But we're only talking here about whether you're irreparable.

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You want a preliminary injunction.

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We're not deciding the merits issue.

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And you have to show not just injury, but irreparable injury.

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Yes, Your Honor.

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You're in a narrow box here.

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That's true.

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But there's nothing irreparable.

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What's irreparable?

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What's irreparable that's happening to you right now?

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That we do not have access to information about the agency's analysis of the privacy risk.

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You only have a right to that.

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Let's assume everything goes out January 1, 2020.

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You're not injured unless you don't have that information by January 1, 2020.

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But that's information that's critical to an ongoing issue.

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It doesn't matter.

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You only have a right to it coming out.

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You might like it, you might prefer it, but you only have a statutory right to have it before, for my assumption, January 1, 2020.

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Your Honor, that's not how we read the statute at all.

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As I've been describing, the collection of information is an administrative process that includes numerous steps, many of which have already been taken, more of which remain to be taken.

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Well, to the extent you wanted that information before the, I'm sorry, March decision?

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March 26, 2018.

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Okay, you may have wanted it before that, or at the same time that decision came out.

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That's water under the bridge, right?

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But the agency is taking more steps every day and spending more dollars every day on this process, and it is... That's not an irreparable injury to you.

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But not being able to obtain information critical to EPICS and the understanding of EPICS members and the public's understanding of what the agency is doing with respect to its... That wouldn't even be enough to give you standing at this point, let alone irreparable injury.

[00:09:13] Speaker 04:
Your Honor, I disagree.

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I think we... I know you disagree, but... Well... See, our decision is final on that, not yours.

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Telling me you disagree isn't... That didn't get me very far.

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You claim an associational standing.

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We do, Your Honor.

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And I don't think you have any problem about being an association.

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I understand that.

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But which of your members is heard how?

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by not having this information today as opposed to in 2021.

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Because, Your Honor, the Section 208 is designed, as Congress has said, to ensure sufficient protection of the privacy of this information.

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Tell me which of your members is, on the record, injured in some places by not having the information now.

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All three of the members who have entered declarations to the record, Your Honor.

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What injury personal to Person A in Year 3, I don't remember their name, but what injury personal to that person

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If being caused by the agency's actions, they can be remedied in this lawsuit.

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Your Honor, the Census Bureau has made it clear that it will collect the citizenship status information of every person who is required to respond to the census.

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All three of EPIC's members reside in the U.S.

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and they are required to provide that information.

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They have been required yet.

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That's true.

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Well, the requirement exists.

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The deadline hasn't... As a matter of fact though, that in fact is an injury common to all.

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You need an injury personal to your client.

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Well, Your Honor, as the Supreme Court made clear in FEC v. Akins, the fact that an informational injury is widely shared does not make it a generalized grievance.

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The informational injury, generally speaking, is a failure by the agency to disclose information that it has.

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That's correct, Your Honor.

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Are you saying the agency has information here that it's keeping from you on demand?

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Well, the statute requires the agency both to develop and to... No, no, let me do a yes or no question first.

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You get to explain it then, but are you saying that the agency has information here that it's failing to disclose on demand?

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We don't know, Your Honor, because they haven't produced the requisite privacy impact assessment.

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I don't... It's not clear what they've done.

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So you cannot answer a yes or no question.

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Is that correct?

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Unless you can answer a yes, you're going to have trouble even standing.

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I don't understand an informational injury to be stated by saying they may not have the information that we're entitled to.

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That brings us back to Judge Millett's questions about when are you entitled to it.

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I don't even see now how you

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have alleged an injury to give your member standing.

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So it's the same type of standing that supports, that supports issuance of preliminary injunctions in the Environmental Impact Statement context, in the National Environmental Protection Act context.

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There, the agency... There we have, generally speaking, an affidavit from a member of the association that says, I go out to the recreational park, I recreate there, and this

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environmental problem they call emphysema when I come out there and start breathing.

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We have something personal to a person on their failure to provide the information that the emphysema is designed to provide.

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I'm not finding here, I'm assuming that there is a right to privacy that would protect the citizenship, and that's, you got pretty good leads there to start with, but assuming that's the case, I don't see how you've got informational standing at this point.

[00:12:33] Speaker 04:
Your Honor, in the same way that someone who uses and enjoys a park would have their aesthetic rights or their rights of enjoyment affected by an agency action taken without sufficient analysis of the environmental factors, EPICS members will be injured because their personal data will be forcibly disclosed by an agency that is not legally entitled to it on our reading of the statute because the agency has not averted to the privacy consequences of that collection.

[00:13:01] Speaker 05:
Well, the information doesn't have to be in the government's hands.

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You'd have an informational injury under FEC versus Akins, right?

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It's not that they really have to have it in hand.

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As in it doesn't have to already be developed?

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Exactly.

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Yes.

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Correct.

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Right.

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So that's settled by the Supreme Court.

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Yes, Your Honor.

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Right.

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But it seems to me more that yours is a question of, for me, this is a preliminary injunction appeal irreparability, and you've got plenty

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of time to have your fights about this.

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I'm also just curious about, you've got, so you've seen the assessment they did on CEN08.

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And on page five of it, they talk about information contained within the major applications, and they describe all the protections for the major applications, many of which are listed on the next page, page six.

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So they say here, both for the CENT08 and for everything listed in the definition of major applications on page six, which is this paragraph long of other CENT systems, here's what the protections are.

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All right, so you've got this information about CEN08, and it's also telling you about CEN7, CEN5, CEN11, CEN18, CEN19, CEN21, CEN30, CEN36.

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Here's what we're doing to protect your privacy.

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So your board members that are worried about what's gonna happen, how their information's gonna be handled have been told what's gonna happen under CEN08 and under all of those that I just listed.

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So now you're just fighting about some

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incremental additional

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information about how their citizenship information is going to be handled under a few other SEND systems.

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For which you already have a lot of information about because they're handling other private information.

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You've got privacy assessments already on the book.

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I don't understand what the increment is that you think you're going to get for a couple of remaining SEND systems.

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It's going to be any different from this and any different from the privacy assessments

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that are already out there.

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And don't you have to show that to demonstrate an irreparable injury?

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Yes, Your Honor.

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So I'll point to a few things that are missing from the filing of the government before the court.

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The first is that it doesn't explain how, it doesn't assess other alternative processes for developing the same information.

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That's a requirement under the OMB regulations that implements... Is that a requirement for the collection of information or for getting new technology systems in?

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It's required for both.

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It's required for both.

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You're operating like this is starting for the first time, right?

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The Census Bureau has been collecting private information, more private than your citizenship.

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I assume the members you mentioned are not here without documentation.

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Are they actually U.S.

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citizens?

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It's not identified in the declarations, but it's... I assume their citizenship status or their residential status is not... Correct.

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Okay.

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So the Bureau collects all kinds of private information, and they've been doing all kinds of privacy assessments, and as I've explained regularly, time and again, including updates since March 2018 about how the information collected

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is protected, how the privacy concerns and the privacy assessment are implemented.

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And now they've said, understand I'll wait, guess what, surprise, we have all those same protections still here, even though now we're asking about citizenship.

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And we have them for these other major applications as well.

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So you're against the baseline of an awful lot of privacy assessment information already in your hands.

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Correct?

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You're going to tell me there's two or three other systems not mentioned on this list that you don't yet have the paperwork on?

[00:17:01] Speaker 05:
Which you already have privacy assessments for.

[00:17:04] Speaker 05:
They just haven't said, including citizenship.

[00:17:07] Speaker 04:
Well, I don't think just saying including citizenship is a commensurate analysis of the type that Section 208 requires.

[00:17:13] Speaker 04:
It requires it be commensurate with the sensitivity of the system, the privacy risks involved.

[00:17:17] Speaker 05:
Yeah, do you think citizenship is more or less private than all the information they've been collecting before about family members and status, marital status?

[00:17:28] Speaker 04:
It is a new collection of information.

[00:17:30] Speaker 05:
It may be, but you just said I don't know how they're going to protect the privacy of it, but I think they really do.

[00:17:36] Speaker 04:
Well, Your Honor, so just to be clear, this is not simply a cybersecurity analysis.

[00:17:40] Speaker 04:
It is not simply an analysis of whether access rights have been controlled with the information collected.

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It is a privacy impact assessment.

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It requires the agency to consider the impact on the privacy of the individuals whose data will be collected.

[00:17:54] Speaker 04:
And this analysis that the agency has put before the court recently does not reflect that.

[00:17:57] Speaker 05:
Well, let me ask you one other thing.

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So I get that citizenship is new, at least

[00:18:05] Speaker 05:
hasn't been for quite some time on the general censorship questionnaire.

[00:18:10] Speaker 05:
But it has been on the long form or the community survey form, including I think in 2010.

[00:18:22] Speaker 05:
Right, and so there's gotta already be, they say they've been doing that all along.

[00:18:26] Speaker 04:
My understanding is that in 2010 it was on what I call the long form, but it has... My recollection is that was true for 2000, not 2010, but it has been asked in the past, yes, on the long form.

[00:18:35] Speaker 04:
That's correct.

[00:18:36] Speaker 05:
Okay, it was not asked in 2010?

[00:18:39] Speaker 04:
I confess I don't know.

[00:18:40] Speaker 04:
I thought it was not asked in 2010, but it was only asked in 2000.

[00:18:42] Speaker 04:
Anyway, I'm along for it.

[00:18:44] Speaker 05:
Okay.

[00:18:44] Speaker 05:
All right.

[00:18:45] Speaker 05:
Well, if it were asked in 2010, I guess I will ask them, then there would already be privacy assessments out there on the census question – on the citizenship question as well, even though it wouldn't be going to everybody.

[00:18:53] Speaker 05:
It would just be going to 3 million people.

[00:18:56] Speaker 04:
We are aware of no such assessment.

[00:18:57] Speaker 04:
I mean, the agency hasn't put that forward despite this litigation carrying on for several months.

[00:19:01] Speaker 04:
Oh, I see.

[00:19:01] Speaker 04:
Okay.

[00:19:02] Speaker 04:
Just one final point.

[00:19:04] Speaker 04:
The purpose of 208 is, as the agency concedes on page 23 of its brief, to affect agency decision making, to inform agency decision making.

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And that cannot occur if an assessment is being conducted after the decision making has concluded, after all the parameters of the data collection have been set.

[00:19:22] Speaker 04:
So in order to serve the purpose of this provision, as Congress has established, it is necessary for the assessment to be conducted prior to that initiation of the collection.

[00:19:31] Speaker 04:
Thank you.

[00:19:33] Speaker 02:
May I please the court, Sarah Carroll on behalf of the government.

[00:19:44] Speaker 02:
I'd like to start off with Judge Millett's question to make sure I don't forget about it.

[00:19:48] Speaker 02:
You're right that the Census Bureau does ask about citizenship.

[00:19:51] Speaker 02:
It was on the long form.

[00:19:53] Speaker 02:
My understanding is that the long form... In 2010?

[00:19:55] Speaker 02:
What's that?

[00:19:56] Speaker 02:
My understanding, I can double check this, but I think the long form was replaced with the American Community Survey in 2005, I believe.

[00:20:04] Speaker 02:
I'll let you know if I'm wrong about that.

[00:20:05] Speaker 02:
And it's been, the citizenship question has been on the American Community Survey since 2005.

[00:20:10] Speaker 02:
There are published privacy impact assessments about the American Community Survey, so you're absolutely right that there is public information about how citizens.

[00:20:17] Speaker 05:
So you've already done privacy assessments about asking executive, what, three million people?

[00:20:21] Speaker 05:
How many people get that?

[00:20:23] Speaker 05:
I don't know the exact number, but that sounds right.

[00:20:25] Speaker 05:
You've already got privacy assessments.

[00:20:26] Speaker 05:
Do you use the same technology systems to process the, I keep calling it the long form, the ACS form?

[00:20:34] Speaker 02:
My understanding, which I can again confirm, is that it's a separate system.

[00:20:38] Speaker 02:
So it's not the exact same privacy impact assessment that will apply to the storage of citizenship information in CINO-8 and the other systems that hold decennial census information.

[00:20:50] Speaker 02:
But as I think your honor's basic point, that there is a whole lot of information out there about this already, is correct.

[00:20:58] Speaker 02:
I also want to sort of dispel this notion that I think Epic has been trying to promote,

[00:21:03] Speaker 02:
the Census Bureau just hasn't thought about privacy, hasn't thought about how it's going to protect this sort of information.

[00:21:09] Speaker 02:
What the Census Bureau does is data collection, and again, as Your Honor noted,

[00:21:13] Speaker 02:
the Census Bureau collects a whole lot of sensitive information, information that is certainly not meaningfully less sensitive than the citizenship question.

[00:21:23] Speaker 02:
And the Census Bureau takes privacy and information security extremely seriously.

[00:21:27] Speaker 02:
It has privacy impact assessments for, I think, about probably a couple dozen information systems that are publicly available.

[00:21:35] Speaker 02:
It reviews and updates these frequently.

[00:21:40] Speaker 02:
Epic, you know, Epic can, there is no legal basis for Epic to come in and say, you need to change your well-developed system for looking at the privacy and information security protections associated with your systems every time that you are simply thinking about adding a new question to the 2020 decennial census, the American Community Survey, or anything else.

[00:22:02] Speaker 05:
And we're, so we're here on a PI.

[00:22:05] Speaker 05:
And irreparable injury,

[00:22:10] Speaker 05:
Injury or irreparable injury are both sort of special basis for just denying a PI, correct?

[00:22:17] Speaker 05:
Yes, absolutely.

[00:22:18] Speaker 05:
So I think under our prior epic decision involving the same statute, you can affirm the denial of a PI just as much for failure to show irreparable injury as you could for whether you showed standing or not at the plausibility level in district court.

[00:22:38] Speaker 02:
I would think that, so we think to be clear that EPIC does not have standing and I would think that since that's a jurisdictional issue.

[00:22:47] Speaker 05:
In the prior EPIC decision, they decided that there wasn't substantial likelihood of standing, but didn't

[00:22:55] Speaker 05:
dismissed the whole case, just said that's a basis for denying the PI.

[00:22:58] Speaker 02:
Yes, yes.

[00:22:58] Speaker 05:
And I don't know why they have to do uber standing to get a PI if you think of irreparable injury.

[00:23:05] Speaker 05:
And that uber component of standing to get a PI, plain old injury isn't enough.

[00:23:10] Speaker 05:
They have to have irreparable injury.

[00:23:13] Speaker 05:
And it seems to me that that would be a sufficient basis as well for denying a PI.

[00:23:17] Speaker 02:
That may well be.

[00:23:19] Speaker 02:
And we also think the court could deny the PI and should deny the PI on the basis that Epic has not shown a substantial likelihood of standing.

[00:23:28] Speaker 02:
Epic has not shown any concrete privacy for Epic.

[00:23:33] Speaker 05:
But even just irreparable injuries, if you try to figure out what's sort of the easiest way out, and I'm just assuming, I'm just thinking this through, it just seems you have this very, very high showing

[00:23:44] Speaker 05:
of injury that's required here.

[00:23:46] Speaker 05:
You have to have an exceptional, I think that's why we even do the substantial likelihood language, but a substantial, you have to have irreparable injury.

[00:23:55] Speaker 02:
Right, right.

[00:23:56] Speaker 02:
A preliminary injunction is an extraordinary remedy, never awarded of rights, so Epic is wrong on the merits, but you're absolutely right that they have to show a really strong, special injury to qualify for.

[00:24:06] Speaker 05:
Do you have any information about the time frame for the

[00:24:10] Speaker 05:
the privacy assessments that are still outstanding?

[00:24:14] Speaker 02:
So the Census Bureau is in the process of reviewing those and figuring out whether updates are needed.

[00:24:19] Speaker 02:
I expect that they will be completed by January 2020.

[00:24:23] Speaker 02:
I don't have any reason to doubt that.

[00:24:25] Speaker 05:
Well, you don't have any sensibility sooner than that.

[00:24:27] Speaker 02:
I don't know for sure.

[00:24:29] Speaker 02:
The Census Bureau, of course, is extraordinarily busy right now and I don't want to commit to any timelines faster than that, but the Bureau certainly is actively working on these things.

[00:24:39] Speaker 03:
When did they actually begin the collection of data?

[00:24:45] Speaker 02:
A few first census forms may be sent out in January 2020.

[00:24:49] Speaker 02:
Most of it is after that, but January 2020 I understand to be the beginning date.

[00:24:54] Speaker 03:
Yes.

[00:24:55] Speaker 03:
I didn't recall them having been that early.

[00:24:58] Speaker 02:
Right, I think so census days in April, but my understanding is that there are a few forms that for a sort of special circumstances that go out earlier than that.

[00:25:08] Speaker 02:
I do want to be sure to touch on standing because we do think it's an important issue.

[00:25:13] Speaker 02:
You know, the district court that oversaw a trial in the merits census litigation found that plaintiffs there lacked standing to challenge the citizenship question on privacy grounds.

[00:25:24] Speaker 02:
And the plaintiffs there, again, as Your Honor alluded to, plaintiff organizations submitted affidavits saying that they had members who were individuals who were either undocumented or had family members who were undocumented.

[00:25:36] Speaker 02:
But the district court nonetheless said, in light of the extraordinary restrictions on disclosure that the Census Act imposes, as well as the criminal penalties that that act imposes, it would be pure speculation to suggest that those people would be injured.

[00:25:51] Speaker 02:
And EPIC comes in with affidavits that are quite cursory.

[00:25:55] Speaker 05:
Well, there's just a difference, though, if they're focused on informational injury and that you have a right

[00:26:01] Speaker 05:
It's like a hippotype right.

[00:26:03] Speaker 05:
You know, I have this private information and I have a right under this statute to know how it's being handled.

[00:26:09] Speaker 05:
None of it can be statutory debates as there certainly have been about timing when you're in what time frame are you entitled to get this information.

[00:26:21] Speaker 05:
But I assume you don't dispute, I mean you don't dispute that the assessments need to be done before the questionnaires go out in the mail.

[00:26:29] Speaker 05:
We haven't disputed that.

[00:26:32] Speaker 05:
You don't dispute that and you don't dispute that once you've done those privacy assessments you need to publish them and they have a right to see them consistent with whatever

[00:26:44] Speaker 05:
limitations on sensitive information.

[00:26:46] Speaker 02:
Right, the statute says impracticable, they should be published.

[00:26:49] Speaker 05:
I don't expect that it will be impracticable.

[00:26:51] Speaker 05:
And you've already done the Senate-wide one, and you've done tons of these privacy assessments all over the place, including for the citizenship question, so it seems to me that there's no dispute that they have a right to see this information, and to have this information is just a question of

[00:27:09] Speaker 02:
timing for injury purposes.

[00:27:13] Speaker 02:
Right, a couple of responses to that.

[00:27:15] Speaker 02:
First of all, I want to be very clear that if the court thought they had informational standing, of course the only remedy that they would have standing to seek is, as you say, disclosure of information, not to try to halt the citizenship question or anything like that.

[00:27:26] Speaker 02:
And second... So you'd have to have a minimum of reprehensible injury to do that, and they don't have that.

[00:27:30] Speaker 02:
And second, we read this court's prior Section 208 decision, in Epic's case from about a year and a half ago, as saying that the statutes that Section 208 does not create a broad public informational right like FOIA or FACA does.

[00:27:46] Speaker 02:
We read the court's decision to hold that a person, Congress created a concrete right to information in people whose privacy is actually threatened, where privacy is

[00:27:55] Speaker 02:
at stake in a meaningful way.

[00:27:57] Speaker 02:
And here, there's no reason to think that EPIC's advisory board will have a privacy injury of any kind.

[00:28:02] Speaker 02:
So we actually don't think that the injury that EPIC is claiming on behalf of its advisory board is the type that Congress had to.

[00:28:08] Speaker 05:
They're not the people that were meant to be protected by this statute?

[00:28:12] Speaker 05:
I mean, the statute is not written at all narrowly.

[00:28:15] Speaker 05:
It's like, look,

[00:28:18] Speaker 05:
technologies happen and the government is going to have to get on board with this and it's going to lead to a proliferation of both information collected and processed and moved through the government and as I read the government act it said, what folks have a right to do, what you as a government have to do is be cognizant of this privacy

[00:28:42] Speaker 05:
issues do this assessment and they have a right to know that the government's thought about what it's doing privacy wise and here's what it's doing to protect that information.

[00:28:55] Speaker 05:
It's not just people who have what we would call very sensitive private information.

[00:29:01] Speaker 05:
It's handling of personal information.

[00:29:04] Speaker 02:
So we have read the decision differently.

[00:29:07] Speaker 02:
I'm just talking about the statute.

[00:29:08] Speaker 05:
I thought you were talking, I'm just talking about what the statute says.

[00:29:11] Speaker 02:
Right, okay.

[00:29:11] Speaker 02:
The statute, I mean the statute sets out purposes about... Otherwise you wouldn't be doing all these privacy assessments.

[00:29:17] Speaker 02:
Right, right.

[00:29:18] Speaker 02:
Yes, that's right.

[00:29:18] Speaker 02:
But this court interpreted the statute in this case from a year and a half ago and we had read

[00:29:22] Speaker 02:
the court's decision to suggest that, you know, the court held very clearly that Epic as an organization did not have informational standing to compel these.

[00:29:30] Speaker 03:
Yeah, but that dealt in part, at least, with the nature of the organizational structure of Epic.

[00:29:36] Speaker 03:
That has been changing since then.

[00:29:39] Speaker 03:
As far as their basic eligibility to be an organization for purposes of associational standing, can you really rely on that prior decision?

[00:29:48] Speaker 03:
They have now changed to that they have members.

[00:29:51] Speaker 03:
We said before we don't have members, we can't have associational standing.

[00:29:55] Speaker 03:
Now they have members.

[00:29:58] Speaker 03:
Are they at least entitled to assert associational standing?

[00:30:02] Speaker 02:
So to be clear, I was not referring to the decision to say that Epic lacks organizational standing as an organization.

[00:30:08] Speaker 02:
I was drawing more on what I understood to be the court's interpretation of the statute more broadly.

[00:30:14] Speaker 03:
But we do think that this, you know... You seemed in your brief to rely in the resistance to associational standing on the prior decision where we said they couldn't have it if they didn't have members, so they couldn't act with their members.

[00:30:30] Speaker 03:
Now they have now changed their

[00:30:31] Speaker 03:
And I use organizational in a late sense, not in the technical sense before, not in terms of art.

[00:30:37] Speaker 03:
But they have not changed their organizational structure, again, using organization in a late sense, not in the term of art.

[00:30:44] Speaker 03:
But they have not changed in the sense that they do have memberships.

[00:30:49] Speaker 03:
So isn't that prior decision, in the video, as far as that first question is concerned?

[00:31:00] Speaker 02:
So we do not think that they have changed their organizational structure in a way that makes them a genuine membership organization.

[00:31:06] Speaker 02:
You know, the purpose of association is standing.

[00:31:08] Speaker 03:
I'm not sure I see why not.

[00:31:10] Speaker 03:
I was a little surprised when you were taking that tack in the brief.

[00:31:13] Speaker 03:
I don't see why they didn't do exactly what they needed to do to become a membership association purposes of establishing that sort of standard.

[00:31:24] Speaker 02:
A membership association represents a constituency of people out in the world who share some distinct interest.

[00:31:30] Speaker 03:
Do you think their members are not people, or they're not out in the world?

[00:31:32] Speaker 02:
We're saying that the people they have now labeled members are their advisory board.

[00:31:37] Speaker 02:
They are not a constituency.

[00:31:38] Speaker 03:
Well, so what?

[00:31:40] Speaker 02:
Why should an advisory board be composed of constituents?

[00:31:46] Speaker 02:
If the Court disagrees with us on this, there are, of course, many other grounds on which we think that the Court... Well, you made the argument.

[00:31:51] Speaker 02:
I'm just trying to understand your argument.

[00:31:53] Speaker 03:
Okay, so... Why can't the Board of Advisors and membership be co-terminated?

[00:32:02] Speaker 02:
Because a membership association is supposed to represent people out in the world, members of the public, who band together to... Are you saying their members of the board are not people, or they're not out of the world, or they're not part of the public?

[00:32:16] Speaker 02:
I'm saying that relationship to the organization is not the relationship that members have to an organization.

[00:32:22] Speaker 02:
They are an advisory board.

[00:32:23] Speaker 03:
They don't have the... I don't see why an advisory board of members can't be a co-terminus.

[00:32:28] Speaker 03:
I didn't find in your briefing explanation that.

[00:32:30] Speaker 03:
I'm not hearing you explain it now.

[00:32:32] Speaker 03:
I think that... I mean, if they had a six-member board of advisors, you might have an argument.

[00:32:36] Speaker 03:
Did you look at the list of their board of advisors?

[00:32:39] Speaker 02:
It's fairly long, but these are advisory board members.

[00:32:42] Speaker 02:
These are not members.

[00:32:43] Speaker 02:
And if you look at the... Who do you think they picked to be on their advisory board?

[00:32:47] Speaker 03:
Yeah, a very friendly advisory board that wasn't composed of members?

[00:32:50] Speaker 02:
Well, boards have members in one sense, but those are not members in the sense that a membership organization has members.

[00:32:56] Speaker 05:
Are you saying they have to have an advisory board plus one non-advisory board member to be an association?

[00:33:00] Speaker 02:
We think that they would have to have a constituency of members of the public who join.

[00:33:04] Speaker 05:
Why can't you have them where two or three are gathered in the name, right?

[00:33:07] Speaker 05:
Why isn't that enough?

[00:33:10] Speaker 05:
It could be a really small association.

[00:33:14] Speaker 05:
But that's everybody in the country who cares about something.

[00:33:16] Speaker 05:
They've gathered together.

[00:33:18] Speaker 05:
And because it's small, if you're a member, you also have to do some work.

[00:33:23] Speaker 02:
I don't dispute that the membership of a membership organization could be small, but here, EPIC's advisory board doesn't have any of the practical indicia of pay dues.

[00:33:32] Speaker 03:
What practical indicia does it not have?

[00:33:34] Speaker 03:
They pay dues, they call themselves members?

[00:33:36] Speaker 02:
They pay dues that they have never quantified.

[00:33:39] Speaker 02:
They might be a dollar a year.

[00:33:40] Speaker 02:
They don't elect the organization's leadership.

[00:33:43] Speaker 02:
If you look at even the amended bylaws, this is JA 229 and 231, it's not the advisory board that elects the board of directors and the officers.

[00:33:50] Speaker 02:
It's the board of directors that does this.

[00:33:53] Speaker 02:
Again, I, you know.

[00:33:55] Speaker 03:
Do you have any case that says that it's necessary for the total membership to be involved in the particular election of Morton Gregg in order to be an associate?

[00:34:06] Speaker 02:
The Supreme Court decision in Hunt says that that's one of the signs that something is.

[00:34:12] Speaker 03:
That's an indicator of the sign, but yes, it may be sufficient but not necessary.

[00:34:18] Speaker 03:
I don't know of anything in Hunt that says that they have to be

[00:34:22] Speaker 03:
involved in the election of the board of directors in order to be an association.

[00:34:29] Speaker 02:
I also don't know of a case that says that is an absolutely necessary condition, but we think it's a bit odd that a month after this court's prior decision, Epic amended its bylaws in what we view as a pretty superficial way.

[00:34:40] Speaker 02:
So you think it's all a ruse?

[00:34:43] Speaker 02:
It seems, I mean, one... Bad faith.

[00:34:46] Speaker 02:
They're trying to fraud on the court?

[00:34:48] Speaker 02:
No, I'm not accusing them of bad faith or fraud.

[00:34:49] Speaker 05:
Are fraud allowed to reorganize?

[00:34:52] Speaker 05:
Composites reorganize all the time.

[00:34:54] Speaker 05:
Groups can reorganize.

[00:34:56] Speaker 02:
OK.

[00:34:56] Speaker 02:
Again, this is not necessarily a hill on which I wish to die on.

[00:35:00] Speaker 02:
It just struck us as peculiar, and it was something that we wanted to raise with the court.

[00:35:07] Speaker 02:
I'm happy to answer any other questions the court may have.

[00:35:11] Speaker 01:
Does Mr. Davison have any time?

[00:35:15] Speaker 01:
Mr. Davison does not have any time.

[00:35:15] Speaker 01:
Why don't you take two minutes?

[00:35:19] Speaker 04:
Thank you, Your Honor.

[00:35:20] Speaker 04:
I just want to hit a few quick points.

[00:35:21] Speaker 04:
I've had a couple pieces of information considered.

[00:35:23] Speaker 05:
Have you looked at the privacy assessment that was done for the citizenship question on the American Community Surveys?

[00:35:30] Speaker 04:
I think I have read them at some point, but it's been a little while, Your Honor, but this is a different collection.

[00:35:37] Speaker 05:
There are privacy assessments out there by the Census Bureau covering the citizenship question, but it's just going to three or four million people instead of the entire country.

[00:35:48] Speaker 04:
We have not looked at that assessment closely to analyze piracy, but it concerns a different question.

[00:35:55] Speaker 05:
Have your members who want this information looked at that and said, I still have some sort of quantum gap in information that I'm lacking without how the government's going to handle my citizenship information that is substantial enough to get me

[00:36:18] Speaker 05:
P.I.?

[00:36:19] Speaker 04:
Your Honor, it is a different collection of information.

[00:36:21] Speaker 04:
It may be similar in nature.

[00:36:22] Speaker 05:
But it's collecting the exact same piece of information we're talking about here.

[00:36:25] Speaker 04:
For a different purpose.

[00:36:27] Speaker 04:
The agency has claimed that the purpose of this is to develop block level systems.

[00:36:30] Speaker 05:
Yeah, the census stuff is maybe even more protective because they're using the American Community Survey for more.

[00:36:36] Speaker 05:
analytical reasons, right?

[00:36:38] Speaker 05:
Do you dispute that the Census Bureau information would be, do you have any plausible good faith basis for believing that the Census collection of that same piece of information by the same entity for broader

[00:36:51] Speaker 05:
disclosure as part of the general census would be in any way less protected?

[00:36:58] Speaker 05:
Do you have any plausible basis for thinking?

[00:37:01] Speaker 05:
This is an informational case.

[00:37:04] Speaker 05:
You have a lot of information.

[00:37:05] Speaker 05:
A lot of information out there and they've done a lot of privacy assessments both for the census and for the ACS.

[00:37:12] Speaker 05:
I guess I'm wondering what quantum of information it is that they think is missing.

[00:37:17] Speaker 04:
There is specific... You have to show a reprobable injury.

[00:37:21] Speaker 04:
That's correct, Your Honor.

[00:37:21] Speaker 04:
So the specific information that is missing from all of the documentation that's been published to date does not explain how, does not explain whatever methods of obtaining blockable... We didn't challenge the ACS privacy assessment.

[00:37:34] Speaker 04:
because this is a different collection of information.

[00:37:36] Speaker 04:
We're concerned with the collection of information.

[00:37:38] Speaker 04:
It is nationwide.

[00:37:39] Speaker 04:
It affects every member of EPIC.

[00:37:40] Speaker 04:
It affects every person who resides in the United States.

[00:37:43] Speaker 04:
So it simply is a different collection.

[00:37:45] Speaker 04:
I just want to add two quick pieces of information concerning associational standing.

[00:37:49] Speaker 04:
The first is that EPIC's dues are $100 a year.

[00:37:51] Speaker 04:
And the second is that we're not arguing, excuse me, that this court has held, rather,

[00:37:56] Speaker 04:
208 is designed to protect individuals, and it does that by assuring that they will have access to information prior to the initiation or collection of information by an agency.

[00:38:06] Speaker 04:
And it assures them that their privacy is being protected, that their personal data will be in good hands when it is collected, if at all, by an agency.

[00:38:15] Speaker 05:
Would either one of you, I guess maybe the government, be able to

[00:38:21] Speaker 05:
to send in a letter telling us how many people have gotten the ACS surveys that include the – or even if it was long from – since the E-Government Act was passed, how many have gotten the citizenship question?

[00:38:36] Speaker 05:
Do you mind, sir?

[00:38:37] Speaker 04:
If there are no further questions.

[00:38:39] Speaker 04:
Thank you.