We live in an age of unprecedented surveillance, enhanced by modern technology, prompting some to suggest that privacy is dead. Previous scholarship suggests that no subset of the population feels this phenomenon more than marginalized communities. Those who rely on public benefits, for example, must turn over personal information and submit to government surveillance far more routinely than wealthier citizens who enjoy greater opportunity to protect their privacy and the ready funds to secure it. This article illuminates the other end of the spectrum, arguing that many individuals who may value government and nonprofit services and legal protections fail to enjoy these benefits because they reside in a “surveillance gap.” These people include undocumented immigrants, day laborers, homeless persons, and people with felony conviction histories suffering collateral consequences of their convictions. Members of these groups often remain outside of the mainstream data flows and institutional attachments necessary to flourish in American society. The harms that surveillance gap residents experience can be severe, such as physical and mental health injuries and lack of economic stability, as well as data marginalization and resulting invisibility to policymakers. In short, having too much privacy can be as injurious as having too little.
The sources of the surveillance gap range from attempts to contain and control marginalized groups to data silos to economic exploitation. This article explores the boundaries of the surveillance gap, evaluates how this emerging concept fits within existing privacy paradigms and theoretical frameworks, and suggests possible solutions to enhance the autonomy and dignity of marginalized people within the surveillance gap.The authors state
Although we live in a highly surveilled society, some people among us are functionally invisible. For example, low-wage workers — many of whom are undocumented immigrants — toil out of sight in an underground economy. A lack of a conventional paper trail or pay stub system linking workers to employers exposes these workers to potential wage theft and dangerous working conditions. While these workers are perilously out of reach of government and nonprofit organizations that could otherwise provide assistance, they are also subject to heightened forms of surveillance, typically under the increasingly watchful eye of agencies like Immigration and Customs Enforcement. Likewise, homeless persons’ lives are defined by extremes: although they tend to live their lives in public, they are simultaneously governed by laws that criminalize their behavior, steadily pushing them out of view. Tellingly, when former Governor of Virginia Terry McAuliffe sought to restore the ability to vote to constituents who had committed felony crimes, his office was unable to find thousands of people — people who at one point spent time in the prison and parole systems where their
whereabouts were always known to authorities. These examples illustrate that marginalized people experience privacy differently than most Americans. Specifically, they experience privacy extremes—being seen or tracked too much or too little.
Existing privacy scholarship has largely focused on the harms derived from too little privacy, and, in this vein, several scholars have highlighted the particularly intense surveillance of low-income people. This article examines the other end of the spectrum—the surveillance gap. Life in the surveillance gap can be isolating, stigmatizing, dangerous, and harmful to a person’s physical and mental health. For one, legal protections available to other members of society remain out of reach to those in the surveillance gap. People also lose out on potential sources of economic and social support, because those who seek to provide services to disadvantaged members of our society often find it nearly impossible to reach them. Moreover, those who fall within the surveillance gap are not included within big data streams that ultimately shape public policy, thus leaving out their experiences and needs from the calculus that goes into creating policy. Frustratingly, the challenges facing these groups remain invisible, further. entrenching these groups’ marginalization.
The surveillance gap has multiple causes, ranging from data silos to poor data sharing, and from benign neglect to administrative systems that purposefully exclude certain people. This article seeks to identify and understand the causes, contours, and consequences of the surveillance gap and to outline legal and policy tools for addressing it. Part II provides case studies of populations living in the surveillance gap, including undocumented immigrants, day laborers, homeless persons, and people with felony conviction histories. Part III situates the surveillance gap within several scholarly streams. First, it assesses the surveillance gap through the lens of scholarship that differentiates between privacy harms experienced by varying groups. Second, it builds on insights from feminist legal theory involving the public/private binary and the harms associated with having too much privacy, wrestling with the tensions identified by feminists between liberalism’s ideals and individuals’ lived realities. Third, it examines notions of “choice” and “consent” in consumer and criminal privacy law, testing whether such frameworks are meaningful with regard to marginalized groups. Fourth, it adds a new dimension to emerging concepts of privacy as contextual. Fifth, it reviews fundamental rights theory’s impact on the surveillance gap, positing that the gap cannot be found in legal regimes that view privacy as a fundamental human right, such as in the European Union. Part IV suggests ways to address harms that arise in the surveillance gap while also respecting desirable forms of privacy and the dignity and autonomy of marginalized persons.