'The Class Differential in Privacy Law' by Michele Gilman in 77(4)
Brooklyn Law Review (2012) 1389-1445
analyzes
how privacy law fails the poor. Due to advanced technologies, all Americans are facing corporate and governmental surveillance. However, privacy law is focused on middle-class concerns about limiting the disclosure of personal data so that it is not misused. By contrast, along the welfare-to-work continuum, poor people face privacy intrusions at the time that the state or their employers gather data. This data collection tends to be stigmatizing and humiliating, and it thus not only compounds the harmful effects of living in poverty, but also dampens democratic participation by the poor. The poor interact with the government and low-wage employers in ways that are on-going and interpersonal, and as a result, the "right to be left alone" embodied in current privacy law does not protect their interests in dignity and autonomy. This article argues that poor Americans experience privacy differently than persons with greater economic resources and that the law, in its constitutional, statutory and common law dimensions, reinforces this differential. This class differential in privacy law has costs not only for the poor, but for all citizens.
She concludes that -
While most Americans are vaguely aware that they are subject to surveillance, they do not feel its effects concretely, and they are willing to relinquish some privacy for increased security and for the conveniences of technology. Yet for the poor, surveillance is neither vague nor invisible. Rather, along the welfare-to-work continuum, poor people face privacy intrusions at the time that the state or their employers gather data. This data collection tends to stigmatize and humiliate, not only compounding the harmful effects of living in poverty, but also dampening democratic participation by the poor.
Yet privacy law is focused on middle-class concerns about limiting the disclosure of personal data so that it is not misused. By contrast, the poor interact with the government and low-wage employers in ways that are ongoing and interpersonal, and as a result, the “right to be left alone” embodied in current privacy law does not protect their interests in dignity and autonomy. Privacy law, in its constitutional, statutory, and common law dimensions, protects reasonable expectations of privacy, but courts have long held that people give up expectations to privacy when they seek help from the government or go to work. The law thus reinforces the existing class differential in privacy practices. This class differential has costs not only for the poor, but for all citizens. The poor do not need to be left alone; they need to be treated with dignity. Privacy should not be for sale. All Americans would benefit from enhancing the privacy rights of the poor, and united, we can provide a powerful check on expanding surveillance that impacts the poor and rich alike.
