The Role of Ethics in a Federal Statistical Agency A presentation to the US Census Bureau June 9, 2010

1. The Role of Ethics in a Federal Statistical AgencyA presentation to the US Census BureauJune 9, 2010 William Seltzer (Fordham University) seltzer@fordham.edu

2. Outline A. Introduction B. A few widely-applicable ethical issues C. Ethical issues of special relevance to the work of a federal statistical agency D. Ethical responsibility at the Census Bureau: three examples

3. A.Introduction • My talk today draws on three related streams of work: (1) a talk I gave to the Washington Statistical Society early in 2001 on “U.S. Federal Statistics and Statistical Ethics;” (2) the results of research that Professor Anderson and I have carried out over the past decade, largely focused on the Census Bureau; and (3) a short course, “Professional Ethics and the work of a National Statistical Office” I presented at the ISI session in 2009.

4. A. Introduction -- continued • Much of this work is documented on a website that Professor Anderson and I jointly maintain, https://pantherfile.uwm.edu/margo/www/govstat/integrity.htm, • In order not to just rehash my 2001 and 2009 presentations, I have tailored my remarks today to focus somewhat more directly on issues related to the Census Bureau than the title of my talk might suggest.

5. B. A few widely-applicable ethical issues • Need to balance conflicting ethical principles • Different approaches to ethical norms • Need for perspective: not every difference of opinion about methods, analysis, or conclusions is really an ethical dispute • Plagiarism • Responsibility to cite sources and describe methods and quality

6. B. A few widely-applicable ethical issues • Since the first three of these general topics are of particular importance in thinking about ethics in the work of a federal statistical agency, I will begin by reviewing them briefly. • I believe I do not need to say anything specific to this audience about avoiding plagiarism and the need to cite sources.

7. 1. Need to balance conflicting ethical principles • Different ethical principles may conflict with one another. For example, in statistics there is often a conflict between the obligation to provide users with very finely grained data and the obligation to protect data providers from possible disclosures and any ensuing harm. • There is often no single right way to reconcile such conflicting ethical principles.

8. 2. Different approaches to ethical norms There are several different ways of understanding ethical norms. Three widely recognized approaches are: • Deontological (Absolute rules. For example, the 10 Commandments) • Utilitarian (For example, the greatest good for the greatest number) • Rawlsian (High priority given to social justice) Each approach has its own shortcomings

9. 3. The importance of perspective • Of course, ethics are important • However, not every difference of opinion about methods, analysis, or conclusions is really an ethical dispute • In thinking about perspective, it is important to be aware of the consequences of decisions for many different stakeholders, including the powerless and vulnerable

10. C. Ethical issues of special relevance to the work of a federal statistical agency • Law, policy, and ethics: overlaps, differences, and sources of authority • Integrity of the statistical agency and its outputs • Use of very out-of-date methods • Statistical confidentiality • Administration of a statistical agency • Prevention and coping strategies and tools

11. 1. Law, policy, and ethics: overlaps, differences, and sources of authority • When working in a government statistical agency, one has to serve many masters. They include the following: i. One’s immediate supervisors ii. Their supervisors iii. The agency head (or if you are the agency head, the person or board to whom you report)

12. 1. Law, policy, and ethics -- continued • One must also serve several different kinds of impersonal authorities. They include: i. The law (those explicitly pertaining to statistics and other laws) ii. Government and agency policies iii. Scientific standards (statistical science and relevant subject-matter science) iv. The needs and interests of data users v. Professional ethics (statistical and those of subject-matter professions) as well as agency ethical standards

13. 1. Law, policy, and ethics -- continued Some Non-Statutory Sources of Authority (a) Statistical policy • Various standards and policy directives of the OMB related to statistical programs and standards. • The current (4th) edition of Principles and Practices for a Federal Statistical Agency published by the National Academies Press. • Relevant portions of the Code of Federal Regulations, Title 15, Volume 1, Subtitle A, Chapter I--Bureau of the Census, and Subtitle B, Chapter I--Bureau of the Census. • United Nations Statistics Division, various standards and international recommendations.

14. 1. Law, policy, and ethics -- continued (b) Statistical ethics • U.S. Department of Commerce, Office of The Assistant General Counsel for Administration, Ethics Law and Programs Division, “Summary of Ethics Rules - Bureau of the Census, 2010,” available at http://www.ogc.doc.gov/ethics.html • American Statistical Association Ethical Guidelines for Statistical Practice. Available at http://www.amstat.org/about/ethicalguidelines.cfm • UN Statistical Commission “Fundamental Principles of Official Statistics.” Available at http://unstats.un.org/unsd/methods/statorg/FP-English.htm

15. 1. Law, policy, and ethics -- continued • Usually, the dictates of the law, sound scientific standards, agency policies, the instructions of supervisors, and ethics all point in the same direction • At times, however, these personal and impersonal masters may be in conflict and pull us in different directions • Note that for ethical transgressions and many crimes simply following the law or following orders is no excuse

16. 2. Integrity of agency and outputs • Policy (b) Staffing (c) Fixed release dates (d) Suppression of results

17. 2. Integrity of agency and outputs:(a) Agency policies • Agency policies should -- be based largely on statistical and subject-matter grounds, taking into account political priorities (broadly defined) be guided by the interests of the full range of data users and the responding public resist efforts to let short-term partisan political priorities drive policy decisions on structure, staffing, methods, and outputs

18. 2. Integrity of agency and outputs: (b) Staffing • Qualifications and experience • Professional outlook and sense of responsibility • Broadly reflecting the diversity of the country • Identification with the agency and the statistical profession • Nevertheless, the hiring of otherwise qualified political referrals is not in itself unethical

19. 2. Integrity of agency and outputs: (c) Fixed release dates • Release dates for politically-sensitive statistical series (for example, release of the consumer price index or the unemployment rate) should be scheduled well in advance • This schedule should be adhered to and the release dates for such series should not be determined by short-term political considerations

20. 2. Integrity of agency and outputs: (d) Suppression of results • Planned statistical outputs should always be released, unless there are strong professional reasons for not doing so • If a planned output is not released, a detailed methodological output should be issued in its place, documenting the shortcomings in the planned output and presenting at least summary results

21. 3. Use of very out-of-date methods • The failure to update methodologies to take into account evolving scientific understandings or the changed circumstances of the country and its population, if delayed too long, can become a serious ethical issue • We are not talking here about 5 or 10 year delays, but those extending to decades

22. 4. Statistical confidentiality • The confidentiality of personal information provided to government statistical authorities during population censuses and similar statistical operations is a well-established principle, at least among statisticians

23. 4. Statistical confidentiality - continued • Most sets of ethical norms in the field of statistics base the responsibility for maintaining statistical confidentiality, either explicitly or implicitly, on the grounds that such disclosures may lead to respondent harm

24. 4. Statistical confidentiality - continued • For example, the ISI’s 1985 Ethics Declaration states, “the information provided shall not be used to harm data providers.” • Similarly, Section 8 of Title 13 of the U.S. Code states, “In no case shall information furnished under the authority of this section be used to the detriment of the persons to whom such information relates.”

25. 4. Statistical confidentiality - continued • And the United Nation’s Fundamental Principles of Official Statistics, in principle 6, defines the concept in these words, “Individual data collected by statistical agencies for statistical compilation, whether they refer to natural or legal persons, are to be strictly confidential and used exclusively for statistical purposes.”

26. 4. Statistical confidentiality - continued • Unfortunately, the Commerce Department’s ethical standards for the Census Bureau treats this ethical obligation in very narrow legalistic terms (narrower indeed than Title 13) referring to it as simply a duty to “safeguard non-public information ... until disclosure is authorized,” all under the rubric, “Misuse of Government Resources.”

27. 4. Statistical confidentiality - continued • I would stress that in the United States statistical confidentiality is both an ethical obligation and a legal requirement. This, raises the question, if the confidentiality law were to change tomorrow, would our ethical obligations also change? • This same ethical norm is also reflected, at least to some degree, in the confidentiality provisions of census and statistical laws adopted in most countries

28. 4. Statistical confidentiality - continued • Statistical confidentiality laws are of two broad types: (1) those that prohibit disclosures for all types of non-statistical uses, and (2) those that permit disclosures for certain important non-statistical state purposes

29. 4. Statistical confidentiality - continued • Note that laws of the first type may permit some disclosures considered as harmless (for example, sharing data among statistical agencies to foster enhanced analytical possibilities) • Such strong statistical confidentiality laws adhere closely to the ethical principle that the personal information provided will not be used to harm or target individuals

30. 4. Statistical confidentiality - continued • Unfortunately a number of countries, whether by tradition or in response to perceived national threats, have weaker, or weakened, statistical confidentiality laws that allow for a distinction between authorized and unauthorized disclosures without reference to the issue of individual harm, and only bar the latter

31. 4. Statistical confidentiality - continued • To help put this important distinction between “strong” and “weak” confidentiality laws into some kind of context: • In the United States, the Census Bureau’s Title 13 and the NCHS confidentiality statute are of the strong type, while the law governing the NCES was transformed by the Patriot Act from a strong to a weak law • The UK confidentiality law is of the weak type

32. 4. Statistical confidentiality - continued • To better understand the implications of this distinction, it is useful to consider how disclosures of personal information provided to census and statistical agencies arise

33. 4. Statistical confidentiality - continued • Such disclosures arise from three main sources: 1) inadvertent disclosures (for example, lost laptops or flash drives, enumeration records erroneously put in the general trash, misdirected mail), 2) ad hoc disclosures (for example, those attributable to individual hackers, disgruntled or over-zealous census staff, or gossipy interviewers), and

34. 4. Statistical confidentiality - continued 3) targeted disclosures (These arise from the efforts of government or private sector entities external to the government statistical system to obtain personal information for some non-statistical purpose) • The first two sources primarily use what might be termed “back-door” methods of obtaining this information, that is, by means of unauthorized disclosures prohibited by the confidentiality provisions common to nearly all census and statistical acts

35. 4. Statistical confidentiality - continued • The third type of disclosures, those arising from the efforts of other governmental agencies to gain access to personal information obtained in the census for non-statistical purposes, generally derive from the use of so-called “front-door” methods, that is, by means of the authorized disclosures permitted under weak confidentiality laws

36. 4. Statistical confidentiality - continued • This distinction between “front-” and “back-door” disclosures is important, both from policy and ethical perspectives. Many discussions of statistical confidentiality either ignore this distinction or focus only on methods used to deter “back-door” disclosures

37. 4. Statistical confidentiality - continued • However, it is the “front-door” disclosures that pose the most serious ethical threat, having been associated in a number of countries with substantial harm to vulnerable individuals or population subgroups • Such misuse of information has negatively impacted census and survey response rates for decades • Moreover, even inadvertent disclosures can have a very negative impact on the reputation of a statistical agency

38. 5. Administration of a statistical agency • Managing the staff and financial resources allocated to a statistical agency imposes a number of additional ethical obligations on those with managerial responsibilities, from the agency head on down • These ethical obligations are not normally covered in professional ethics statements of statistical societies. They are well-covered in the ethics document issued by the Commerce Department

39. 5. Administration of a statistical agency -- concluded These ethical responsibilities include: • Treating staff fairly and impartially • Managing the financial affairs of the agency honestly and in a transparent manner, both with respect to resources provided from the government budget and resources earned by the agency for services or outputs provided • Avoiding real or apparent conflicts of interest with respect to both personnel and financial management

40. 6. Prevention and coping strategies and tools • (a) Prevention strategies and safeguards It is helpful to think of prevention strategies under several broad headings. I identify six as central: (i) strong laws (ii) close links among government statistical agencies (iii) close links to major user groups and the news media

41. 6. Prevention and coping strategies and tools – (a) Prevention - conclusion (iv) an active professional statistical society with membership drawn from academia, business and industry, the non-profit sector, and government (v) a spirit of openness and transparency with members of all political parties or groups, (vi) policies that encourage the study and documentation of past threats to the integrity at the statistical agency and that facilitate the dissemination of the results of such studies

42. 6. Prevention and coping strategies and tools – (b) Ways of coping • When an actual threat to the integrity of an agency emerges, the key defense will be in the contacts previously established among the various groups of data users and other stake holders in a sound, well functioning, and non-political statistical system • A diverse group of such stake-holders may have political contacts well beyond those directly available to any one agency

43. 6. Prevention and coping strategies and tools – (b) Coping - continued • More serious coping tools: • Approaches to the press and other media (open and discrete) • Resignation (threats or actual) – by the agency head, senior staff, or mass resignations • Deliberate refusal to carry out ethically irresponsible actions • Other types of pro-active responses

44. 6. Prevention and coping strategies and tools – (b) Coping - concluded • I would stress that the goal of a robust set of prevention strategies is to minimize the need to ever have to consider using these more serious coping tools. Nevertheless, they all have been used over the years, including the Australian census director, who, in the 1890s, had the census schedules destroyed rather than turn them over to the police

45. D. Ethical responsibility at the Census Bureau: Three example • As most of you know, Professor Anderson and I have written extensively on what we consider to have been some serious ethical weaknesses at the Census Bureau in the past. I do not intend to raise these issues today.

46. D. Ethical responsibility at the Census Bureau - continued • Instead I want to review, today, three instances, over the years, where Bureau leadership or staff took strong ethical stances • I do so with the hope that these stories may become better known and serve to help promote ethical thinking and responses at critical times in the future

47. D. Ethical responsibility at the Census Bureau - continued • Case I. Vincent P. Barabba Vince Barabba was appointed Census Director twice: by President Nixon in 1973 and by President Carter in 1979. In 1980, in one of the many law suits the Census Bureau faced relating to the census undercount, the Bureau was ordered by a Federal Court to turn over to New York State and City officials the master address lists used in the 1980 Census. Director Barabba, after the Bureau lost several appeals, exposed himself to a contempt citation by refusing an order to provide these lists.

48. D. Ethical responsibility at the Census Bureau - continued Justifying his position, Director Barabba stated, “Federal statutory law prohibits disclosure of information on these lists because such disclosures would seriously distort public perception of the Bureau’s ability to guarantee confidentiality. This in effect would undermine public confidence in the confidentiality of personal information.”

49. D. Ethical responsibility at the Census Bureau - continued He also emphasized that Title 13 “creates an absolute and unequivocal bar to the disclosure of any information submitted to the Bureau for statistical purposes and the Bureau cannot, by law, provide these data.”

50. D. Ethical responsibility at the Census Bureau - continued • Case II. Barbara A. Bailar At the time of the 1980 Census, Barbara A. Bailar, a leading mathematical statistician at the Bureau, strongly opposed adjusting the census results for the estimated undercount on the grounds that insufficient research had been carried out on which to base such an adjustment. In the run-up to the 1990 Census, Dr. Bailar was Associate Director for statistical standards and methodology.