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Poverty and Privacy

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Introduction and Background

Poor people have less of everything--less autonomy, less social mobility, and less privacy. State interests in fraud prevention and the structure of privacy law itself have worked to the disadvantage of the poor. This page is gives an overview of these forces and their effects on electronic privacy.

Fraud Prevention: Welfare Surveillance and EBT

Professor John Gilliom of Ohio University provided an excellent summary of the changes in welfare surveillance in Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy. In that book, Gilliom explains that state interests in avoiding fraud motivated increasingly invasive investigations of benefits recipients. Historically, these methods were limited by technology and social norms. At one time, this included visits to recipients' homes to determine whether the residence was clean and orderly. But norms have changed, and we are less tolerant of fraud or inefficiency, and technology allows much more invasive surveillance techniques.

Electronic benefits systems and computer matching systems now are employed to determine whether fraud is taking place, and whether the recipient is entitled to the benefits. Such systems do serve important state interests in fraud prevention, however, the systems are highly privacy invasive. Over and over again, policymakers choose more invasive systems in the interests of fraud prevention to the detriment of individual autonomy.

With increased dependence on the Social Security Number (SSN), the government has been able to engage in pervasive tracking of aid recipients. Now, with the requirement that states implement Electronic Benefits Transfer (EBT) by October 2002, aid recipients are being issued benefits cards that facilitate government tracking of all purchases. Gilliom argues that this combined with personal interviews delving into matters such as romantic relationships, results in a comprehensive tracking system that subjects the poor "to forms and degrees of scrutiny matched only by the likes of patients, prisoners, and soldiers."

Strip away the bureaucratic language of fraud control, regulatory enforcement, consent forms, and the like, and we see a simple pattern in which a government agency is using broadly targeted and online surveillance in an effort to force a dependent population to live at an intolerable level of poverty.

Gilliom's book provides firsthand accounts of the humiliation brought to bear by individuals watched by the state. Gilliom argues that traditional notions of privacy do not adequately describe the total surveillance in which the poor exist. He argues that a new language is needed to describe surveillance systems: a language that explicitly recognizes it as a tool of social control. He suggests, as a solution to this humiliation, that aid recipients themselves have to be involved in defining the goals and framework of the welfare system.

Structure of Constitutional Privacy Law: Those Without Private Spaces Have Less Privacy

Constitutional privacy protections in the United States are conditioned upon the finding of a "reasonable expectation of privacy." To find such an expectation, a court examines whether society itself finds privacy in a certain context (objective test), and also whether the individual affected thinks that their actions are private (subjective test). Obviously, this two-pronged test does not provide privacy protections in areas that are public, the areas in which much of the poor exist as a result of not having homes, country clubs, or other establishments to engage in activities. It further does not protect those whose living spaces are exposed to public areas, for instance, homes or apartments without fences, heavy curtains, or well-insulated walls.

Professor Christopher Slobogin of the University of Florida has argued that Fourth Amendment jurisprudence contains an implicit "poverty exemption." That is, courts have interpreted the Constitution to the disadvantage of the poor. He notes that even when a poor person is within a home, state interests in fraud prevention can trump privacy interests. For instance, in Wyman v. James, the Supreme Court allowed welfare workers to conduct a warrantless search of a welfare recipient's home without a warrant citing interests in fraud prevention. In other cases, however, the Court has required a warrant to search a business for investigation of tax fraud.

Police interests in drug interdiction have also played a central role in the dissolution of privacy for those in poorer neighborhoods. Consistently, courts have expanded police search and seizure powers over those in public. There are numerous exceptions to the warrant requirement for police searches, and the so called "Terry Stop," which was first approved to protect officers from concealed weapons, now has become a pretense for searching subjects for any type of contraband.

HMIS -- Homeless Management Information Systems

The Department of Housing and Urban Development released proposed mandatory guidelines for HMIS, or "Homeless Management Information Systems," in July 2003. The proposed guidelines require extensive data collection on the homeless without adequate privacy safeguards. For instance, federally-funded entities that provide care must collect unique identifiers (SSNs, DOBs, full legal names) along with mental and physical health information. That information will be stored for at least seven years in a standard format that is easily exportable to other databases.

EPIC has called attention to a number of privacy risks posed by HMIS, and will submit comments to HUD on the system. Any member of the public can comment on HMIS by sending mail to HUD by September 22, 2003. Specific instructions are contained in the HMIS Guidelines linked below.

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Last Updated: July 12, 2006
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