Michele Gilman and Rebecca Green ∞
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.
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.1 While these workers are perilously out of reach of government and nonprofit organizations that could otherwise provide assistance,2 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.3 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.4 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.5 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.
II. Life Within the Surveillance Gap
The rise of the surveillance state is well documented.6 Both state and non-state institutions routinely record individual actions to an unprecedented degree. Americans have famously been warned: “[p]rivacy is dead, get over it.”7 The so-called death of privacy stems from two main sources. First are the increasingly sophisticated tools that the government uses to monitor and track the populace. Fear of the government’s abuse of these tools has prompted some federal and state laws to protect Americans’ privacy,8 although government surveillance at all levels is ever expanding and broader than most people realize.9 The second source derives from the private sector. To say that companies have come to appreciate the value of consumer data is a gross understatement. Companies now regularly collect, aggregate, buy, and sell consumer data on virtually every aspect of people’s lives, including buying preferences, health status, criminal and voting histories, and physical whereabouts.10 For the modern citizen, this level of surveillance can be a form of control; it can be benign, helpful, or harmful, often depending on the perspective of the surveilled.11 Increasingly, large-scale data sharing between different levels of government and private industry blurs public/private distinctions. For instance, marketers build profiles of Americans using data from public databases and individual online browsing histories, while government agencies such as law enforcement purchase predictive analytic systems from private companies, which build their algorithms using combined public and private sources of data.12
Together, government and private-sector surveillance have created the sense that Americans are universally tracked and that few—except those living purposely “off the grid”—are able to evade government or private-sector surveillance.
While this lack of privacy has raised increasingly vocal concerns, the contemporary phenomenon of non-surveillance—that is, systemic invisibility of large portions of certain classes of people living in the United States—has received less attention. We call this the “surveillance gap,” although we acknowledge that the term is imperfect. While the concept of surveillance is commonly associated with government control of its citizenry, some of the harms that we identify occur in the private sphere. Indeed, we adopt a broader notion of “surveillance” altogether, including all “focused, systematic, routine attention to personal details for purposes of influence, management, protection or direction.”13 This article thus tracks gaps within a variety of public and private surveillance systems, some of which overlap. We address our attentions to populations that remain outside seemingly omnipresent surveillance systems.14 The surveillance gap is a condition of invisibility in relation to mainstream society, as well as a difference in how marginalized groups experience privacy.
The phenomenon of “the uncounted” is not new. For decades, certain groups have been left out of this country’s most basic counting exercise: the U.S. Census. Since its inception, the census has suffered from not just inaccuracies, but also what is referred to as the “differential undercount,” or the routine counting of some classes of people more accurately than others.15 Historically, the classes of individuals who have received a less accurate count included children, renters, residents of large cities, and racial minorities.16 This differential undercount is the census equivalent to the surveillance gap. In recent years, the Census Bureau has been forthright about such data collection problems for certain groups, even identifying in a 2016 report a list of groups that present the greatest challenge to its data collection efforts.17 The Census Bureau uses statistical extrapolation to “count” many who fall in one or more of these categories.18
Data marginalization in the U.S. Census has real consequences for policy-making in this country, because it impacts federal and state resource allocation, environmental priorities, and even the power of the ballot.19 The federal government uses census data to allocate hundreds of billions of dollars each year.20 Education, welfare, transportation, and a myriad of other federal programs allocate funds based on census figures.21 A perfect example of this reality relates to the core purpose of the U.S. Census: apportionment, or the allocation, based on a state’s population size, of representatives in the U.S. House of Representatives. When, as is routinely the case, populations are regularly left out of the count, those populations are, by definition, under-represented. As Samuel Issacharoff and Allan Lichtman explain, “[i]t is evident that problems surrounding the undercounting of identifiable groups have predictable political consequences . . . The undercount results in the underrepresentation of areas of minority concentration, particularly inner-city neighborhoods, to the benefit of wealthier suburban and some rural areas.”22
The “undercount” problem—and controversy over how best to cure it—has consistently plagued census data.23 In the lead-up to the 2020 Census, the Census Bureau convened a working group focused on improving counting of “Hard to Count” (HTC) groups.24 The working group considered (1) making greater use of local data and imagery, (2) encouraging respondents to use the Internet and telephone, and (3) using administrative records and third-party private-sector databases.25 Tellingly, the working group ultimately recommended against using third-party databases and administrative records to find HTC populations, citing “racialized disparities” in those databases to conclude that they might exacerbate the problem.26
Mistrust and fear of government, particularly in minority and immigrant communities, seem likely to create additional problems for the count in 2020.27
Putting the undercount dilemma aside, this section examines several populations that evade, avoid, or (by design) fall outside the surveillance radar and discusses why. Though people living in the surveillance gap suffer differing experiences and harms, the case studies discussed below reveal several commonalities. First, the surveillance gap impacts some of the most marginalized and politically powerless groups in American society—undocumented people, day laborers, homeless persons, and people with felony conviction histories. Second, just as surveillance is used as a tool to “exert influence and reproduce power relations,” the surveillance gap can also serve as a social control mechanism.28 Torin Monahan explains that, when it comes to oppressed populations, “surveillance plays an important role in policing bodies and maintaining boundaries between inside and outside, self and other.”29 In other words, careful watching plays a social sorting function.30 The same can be said of the extreme privacy that characterizes the surveillance gap. Third, people resist surveillance systems in subtle and empowering ways,31 quietly reclaiming their humanity and asserting their rights. Fourth, people in the surveillance gap often lack fundamental legal rights or access to remedies that protect rights.
A. Undocumented Immigrants
Undocumented immigrants in the United States live at privacy’s extremes.32 Approximately eleven million undocumented immigrants live in the United States, making up about four percent of the U.S. population.33 Over sixty-two percent have lived in the United States for ten years or more.34 Over 400,000 people per year are held in immigration detention in over 250 facilities while they await deportation or while their removal proceedings are pending.35 Detainees are treated like inmates whether they are housed in a prison alongside people convicted of crimes or in a separate detention center.36 Residents of detention centers are thus subject to extreme surveillance.
At the other end of the privacy extreme are the millions of undocumented individuals who live their lives in the shadows, fearful of any action or personal contact with a government agent that could result in deportation. Immigration enforcement was strengthened during the 1980s War on Drugs and further bolstered following the terrorist attacks of 9/11.37 During his time in office, President Barack Obama deported between two to three million people, more than his predecessors combined, although the level of deportations under his watch dropped after 2012 due to shifting immigration enforcement priorities.38 His administration focused on deporting people with criminal convictions and created Deferred Action for Childhood Arrivals (DACA), a program that offered deferred deportations and work permits to as many as 2.1 million children brought into the country as minors.39 President Donald Trump’s administration is pursuing more aggressive deportation policies,40 including expanding the list of individuals subject to deportation;41 hiring additional enforcement agents to identify and deport undocumented immigrants;42 building a 2000-mile wall on the United States-Mexico border;43 expediting deportation proceedings;44 and ending the temporary protected status of approximately 200,000 Salvadorans who have resided in the United States for twenty years.45 These aggressive immigration enforcement policies have significantly impacted undocumented immigrants and their surveillance avoidance.
Undocumented immigrants populate the surveillance gap despite, and in part because of, sophisticated efforts to track them. The government deploys a technologically-driven system of surveillance designed to identify, find, and apprehend undocumented people. Government databases, which include biometric information such as fingerprints and DNA evidence,46 are shared and aggregated with private databases that store reams of personal information, resulting in combined profiles used to enforce immigration laws and regulate access to social services, education, health care, driver’s licenses, employment, housing, and transportation.47 Anil Kalhan has labeled this system the “immigration surveillance state.”48
One of its goals is to identify people who should be deported; another is to make the level of monitoring so extreme that individuals self-deport. Another result, and just as common even if not explicitly intended, is to force these people to flee into the surveillance gap.49
The consequences of hiding from the immigration surveillance state are concrete and harmful. Undocumented immigrants work, but typically off the books, in low-wage, dangerous jobs, where they suffer from wage theft and uncompensated workplace injuries.50 They fear contact with government officials, which means they are unlikely to enforce their legal rights in court, seek health care, or use banks or other financial institutions.51 Reporting suggests that Trump administration policies are greatly exacerbating the problem.52 Undocumented immigrants have high rates of crime victimization, but fear reporting to police.53 They fall prey to fraud and extortion schemes.54 They exhibit high rates of stress, anxiety, and hopelessness.55 Today, widespread fear is resulting in undocumented people taking extreme measures to avoid immigration authorities, such as pulling their children out of school and staying locked in their homes56 —and even cancelling annual cultural celebrations.57
Extensive research has recorded the impacts on the 5.5 million children living in undocumented households: “the effects . . . are uniformly negative, with millions of U.S. children and youth at risk of lower educational performance, economic stagnation, blocked mobility, and ambiguous belonging.”58
The 1.1 million undocumented children in the United States can suffer health deficits, because parents are scared to take them to doctors, and educational delays, because parents are scared of enrolling them in school.59 Likewise, the 4.5 million U.S.-citizen children of undocumented parents suffer from constant fear of family separation.60 Even though these children are entitled to government benefits such as childcare subsidies, preschool programs, and food stamps, their parents are often too terrified to apply for benefits on their behalf.61
In the criminal justice context, Sarah Brayne has identified that law enforcement surveillance systems result in “system avoidance,” or deliberate efforts by individuals to avoid institutions that gather and keep formal records.62 Brayne explains that involvement with law enforcement—“from police contact to incarceration”63 —makes individuals wary of interacting with “hospitals, banks, employment, and schools,”64 likely due to a fear of re-exposure to the criminal justice system.65 As described above, undocumented immigrants also undertake such system-avoidance steps.66
Whether they are in detention or attempting to avoid it, undocumented immigrants live at privacy’s extremes. The United States’ extensive immigration surveillance system is a creature of law and a tool of control. It seeks to demarcate the worthy citizen from the unworthy usurper, to create a visible structure that signifies immigrant fault for societal problems, and to make life in the United States so untenable that unauthorized immigrants give up trying to come to this country.
B. Day Laborers
The modern workplace is a site of extreme surveillance. Employers routinely require personality and drug tests before hiring and throughout employment; they observe workers through video cameras, monitor keystrokes, listen to telephone calls, review emails and Internet usage, deploy mystery shoppers, and track movements through GPS or radio frequency devices.67 The realities of rampant workplace surveillance are only one extreme; thousands of workers operate beyond the reach of these surveillance regimes and find themselves in the surveillance gap.
One group of such workers is day laborers. On any given day in the United States, approximately 117,600 people68 seek work as day laborers in jobs such as construction, landscaping, roofing, and painting, as well as in restaurants and nail salons.69 Employers typically hire day laborers on a day-to-day basis at a public site (such as a gas station, street corner, or home improvement store parking lot), where as many as two hundred workers may gather.70 The employer and worker negotiate a verbal, short-term employment agreement.71 Day-labor markets are usually unregulated, and workers are paid in cash;72 this is “temporary work in which the work, and often the workers, lack documentation.”73 Earnings are variable, but the median wage for day laborers is $10 per hour,74 meaning that most day laborers remain below the poverty level, as their annual earnings rarely exceed $15,000.75 The market for day labor is driven by employer demands for worker flexibility, a downtick in industrial and manufacturing jobs, and the number of migrant workers willing to accept payment below market and legally mandated rates.76
Numerous studies highlight the vulnerabilities of day laborers. Many day laborers report being victims of wage theft, or the failure to be paid what a worker is owed under law.77
Day laborers also toil in dangerous workplaces and suffer high rates of injury. A national study of day laborers found that one in five suffered a work-related injury and that half of those injured did not receive medical care.78 Another study found that employers abuse day laborers by denying them adequate breaks for food, water, or rest (44%), abandoning workers at the work site (27%), insulting and threatening workers (28%), and even acting violently toward workers (18%).79 These day laborers face extreme social isolation, as their families are often left behind in their home countries, and, while in the United States, these workers avoid mainstream social venues.80 In sum, “[i]ts social status, physical danger, and uncertainty set day labor apart from other forms of work.”81
All of these abuses are against the law; the Fair Labor Standards Act (FLSA)82 sets forth specific pay, overtime, and recordkeeping requirements and covers citizens and non-citizens alike.83 Indeed, courts have held that questions about citizenship status are impermissible in FLSA lawsuits.84 Yet the law offers little recourse for day laborers. To begin with, because the majority of day laborers are undocumented, they live in fear that employers will retaliate against them by calling immigration authorities if they complain or make demands.85
Day laborers who are willing to pursue their statutory rights face additional challenges. Government enforcement agencies are notoriously reluctant, understaffed, and ineffective in policing day labor violations.86 This is compounded by language barriers and lack of information about legal rights.87 Private lawsuits are hard to bring because the low dollar value of a claim deters private attorneys from taking on these claims.88 Even for pro bono and public interest attorneys, lawsuits can be challenging because the employers frequently exist off the books, with no legal status, identifiable address, or entity to sue.89 Collecting judgments is often fruitless as many employers develop “tactics to successfully avoid paying judgments even after losing the case,” such as declaring bankruptcy, selling their property, and creating bogus shell companies to hide assets.90 There is often no paper trail, such as pay stubs,91 time sheets, or tax reporting forms,92 linking these workers to their employers.
In addition, employers commonly misclassify day laborers as independent contractors, removing them from the purview of legal protections for wages and against discrimination, as well as workplace benefits such as workers compensation, unemployment insurance, and social security disability.93 In turn, workers lack the legal knowledge or resources to challenge those misclassifications.94 Many day laborers are hired by fly-by-night subcontractors, allowing companies at the top of the contracting chain to wash their hands of liability.95 Making matters worse, many employers deem the costs of complying with compensation laws in the short term to be greater than the long-term costs of violating said laws, leading them to shirk their legal obligations.96
Simultaneously, some jurisdictions have enacted anti-solicitation statutes to crack down on day-labor sites due to perceived threats to community safety and potential economic injuries to local businesses.97 These laws push day laborers further into the surveillance gap. Moreover, when day laborers organize to claim and demand their rights—essential forms of resistance to the surveillance gap98—they face increased pushback through employer lawsuits99 and politically motivated restrictions on organizing.100 Thus, day laborers find themselves in a constant push-and-pull between remaining in the surveillance gap and surfacing to assert their rights, facing the associated risks of doing so.
C. Homeless People
Homeless people live in a polarized state of privacy—on the one hand, they live their lives in public; on the other hand, they are pushed to the margins of public spaces and often treated as invisible by passers-by. According to a 2015 study by the National Law Center on Homelessness & Poverty, “at least 2.5 to 3.5 million Americans sleep in shelters, transitional housing, and public places [and] an additional 7.4 million have lost their own homes and are doubled-up with others due to economic necessity.”101 One-third of homeless people live outside, exposing their belongings and personal lives to the public;102 about two-thirds of homeless persons reside in some form of shelter or transitional housing.103 These shelter settings are privacy-stripping by their very nature, due to a status quo defined by overcrowding and pervasive surveillance systems.104 Regardless of whether they have found shelter or live their lives out in the open, homeless individuals find that their destitution is often on display.105 Yet, paradoxically, homeless people simultaneously inhabit a state of invisibility, a form of extreme privacy brought about by societal norms and laws that push people without homes to society’s margins. As Don Mitchell and Nik Heynan describe, “[l]aws (or increased policing) that make sleeping more difficult and dangerous, panhandling riskier, and tending to bodily needs all but impossible, push the homeless as well as the housed poor more deeply into the urban shadows.”106
Surveillance of homeless people comes in many forms: homeless people hoping to secure a place in a shelter must answer personal intake questions and submit to background checks as the price of admission. To remain in the shelter, they must acquiesce to extensive and prolonged surveillance.107 Further, to access certain social services, homeless people must provide answers to highly personal questions, including information about HIV/AIDS status, mental health and substance abuse history, and their experience with domestic violence.108 Their responses are funneled into the nationwide Homeless Management Information System (HMIS), a database designed to assess and measure needs and to coordinate a response through homeless services.109 In addition, and specifically for homeless families, the school systems’ residency verification requirements can worsen housing instability. For example, if, as a result of a school inquiry, a landlord learns that unauthorized occupants are living in a unit, she might evict the occupants—people who likely have no other place to go.110
The law has limited capacity to protect homeless individuals from these privacy intrusions, largely because the Fourth Amendment’s prohibition on unreasonable government searches and seizures generally does not apply to people and personal items in public spaces.111 Yet the activities of homeless people are, by necessity, “conducted in public; [homeless people] typically make their ‘home’ on property that they are not entitled to be on; their belongings and activities are on ‘open fields’ which common passersby can easily see; and they are almost perpetually voluntarily exposing themselves to the public.”112 United States v. Jones,113 which held that it is an unconstitutional physical trespass for police to put a GPS on a person’s car, has spurred hope that the Supreme Court might expand notions of privacy outside the home.114 Yet Kami Chavis Simmons argues that this is unlikely to help the poor, because it does not reach “the face-to-face law enforcement interactions that many residents of poor, urban neighborhoods face on a daily basis.”115 For these reasons, it is widely recognized that homeless people lack the legal or spatial privacy granted to people who can afford homes. By contrast, it is less recognized how homelessness can result in too much privacy—or a surveillance gap.
Homeless people inhabit the surveillance gap for several reasons. To begin with, homeless people who live outside (roughly one-third of the homeless population) face a barrage of laws designed to push them out of sight.116 Across the country, cities have enacted laws that essentially criminalize homelessness—these laws prohibit camping in public; sleeping in public; sleeping in vehicles; sitting or lying down in public; panhandling; loitering, loafing, and vagrancy; living in vehicles; bathing in public fountains; urinating or defecating in public; using shopping carts in public parks; storing personal property on public property; and sharing food in public.117 At the same time, local law enforcement agents issue “move-on” orders and trespass warnings to homeless people and engage in sweeps of homeless camps, removing homeless people from public space and destroying their belongings.118 Ironically, surveillance technologies deployed by law enforcement, such as closed-circuit television (CCTV) cameras positioned around cities, operate to push homeless people into the surveillance gap.119 Together, these statutes and enforcement strategies disperse the homeless to secluded places, where the cycle of “banishment” and “eviction” begins again.120 As a result, homeless persons dedicate “more resources of time, energy, and money into not appearing homeless, or disappearing into darker and more dangerous recesses of the urban fabric.”121 Criminalization policies that make it harder for people to exit homelessness—such as expensive fines and the collateral consequences of convictions—create barriers to employment and secure housing, which in turn perpetuate residence in the surveillance gap.122
Lawsuits challenging municipal restrictions against homeless people have had mixed results.123 Most successful have been challenges to food-sharing laws in which the plaintiffs are not homeless people, but rather charities claiming violations of their associational and free-exercise-of-religion rights.124 The number of laws that force homeless people into the surveillance gap has increased across the board, in some cases dramatically, over the last decade.125 During this time, courts have found ways to distinguish groundbreaking cases such as Pottinger v. City of Miami,126 which held that it is unconstitutional to arrest homeless individuals for engaging in “life sustaining conduct” such as sleeping, sitting, or standing in certain public places.127 Finally, even when a court strikes down an anti-homeless ordinance, the remedy awarded tends to fall short of addressing the underlying structural problem: a lack of available housing.128
Unaccompanied homeless children represent a particularly distressing subsection of the surveillance gap population.129 An estimated 1.7 million children fall into this category per year.130 These children typically fall into homelessness due to family strife, financial crises, and housing instability.131 A large proportion are LGBTQ132 and are cast out by their families.133 Homeless children are acutely aware of the stigma of homelessness, which drives them to live their lives underground, to mask their homelessness. As Lynn Harter and her colleagues explain, “[t]o make their status visible by seeking help risks public stigmatization; to avoid stigmatization requires invisibility.”134 Thus, they develop street smarts to survive, which involves “reliance on instincts to read a situation, preparedness, adaptability, and in general a heightened level of awareness of one’s surroundings.”135 However, these tactics of invisibility can consequently limit access to services provided by the government or private agencies. Further, the tensions of maintaining invisibility result in some young people becoming “aggressive,” which “often put[s] them at risk for arrest and incarceration,” while other youths become “withdrawn, listless, or depressed—characteristics that increase their likelihood of experiencing personal victimization.”136 Homeless children are particularly susceptible to physical abuse and sexual exploitation, and they may resultantly face mental health challenges, develop substance abuse issues, or even die.137 Meanwhile, schools and other institutions are unable (or unwilling) to recognize and develop the survival skills that homeless children have honed, despite the potential sources of social capital or personal transformation these skills represent.138 While the McKinney-Vento Homeless Assistance Act requires states and school districts to identify homeless children and enroll them in school, the law is inadequately funded, and states struggle to comply due to a lack of staffing and technical assistance.139
The surveillance gap is also reinforced when homeless people refuse social services. Shelters can be dehumanizing and dangerous, with a lack of privacy, strict conduct rules, and extreme surveillance, leading some homeless persons to prefer living outside.140 Some shelters sound more like prisons than social service providers; for example, one such shelter is “operated by the county’s sheriff’s department with the help of private security guards, [where] rule breakers are required to sleep outside in an exposed courtyard, even when it rains.”141 This lack of privacy may be why some people who find themselves impoverished resist the shelter systems and, therefore, circumvent additional public aid that may otherwise enable them and their children to break the cycle of poverty.
In addition, homeless people may not seek out shelters because they do not want to provide the personal information that HMIS systems require.142 Notably, information provided to HMIS can be released to law enforcement on a mere oral request for the purpose of identifying or locating a suspect or material witness.143 As one commentator has noted, “[t]he ease of accessibility to client [data] through oral requests threatens to compound the already challenging task of eliciting complete and accurate information from homeless clients,”144 who are, by virtue of their homelessness, often living in violation of laws that regulate their public conduct. Of course, this withdrawal from homeless service systems has a cost, as people lose out on public aid and services that may be able to help them survive or transition out of homelessness. Still, by opting to remain in the surveillance gap, homeless people are pointedly defying surveillance.145 Thus, the story of homelessness is “not a one-way story of oppression, restriction, and decline . . . . It is also a story of both coping in the shadowed interstices of the city and of fighting back.”146
D. People with Felony Conviction Histories
A final and much narrower example illustrates the nuanced gradations of the surveillance gap: the elusiveness of Virginians with felony conviction histories who, despite the Commonwealth’s desire to reinstate their right to vote, cannot be located by government officials.147 Virginia’s constitution strips individuals convicted of a felony of their voting rights permanently,148 but the governor has discretion to restore voting rights to individuals.149 Starting with his inauguration in 2014, former Governor McAuliffe made restoring voting rights to those with felony convictions a centerpiece of his administration.150 In April 2016, McAuliffe decided to grant the right to vote to every Virginian who had finished her term of incarceration and supervised probation.151 Yet when it came to identifying and locating those whose rights were to be restored, the Restoration of Rights Office (RoR) within Virginia’s Secretary of the Commonwealth could identify only 206,000152 of the estimated 350,000153 people who stood to regain the right to vote in Virginia. Ultimately, the Virginia Supreme Court found that McAuliffe’s April order violated the Virginia constitution, requiring McAuliffe instead to restore rights on a case-by-case basis.154 McAuliffe proceeded to comply by affirmatively restoring rights to every eligible person meeting his single criterion: completion of her term of incarceration and supervised probation.155 While McAuliffe restored rights to more Virginians than any other governor in the state’s history (173,000 people during his term),156 he had the political will to restore many more. What stood in his way, even amid a so-called “golden age of surveillance,” was his administration’s inability to identify, locate, and notify all eligible individuals.157
It has been difficult for RoR to locate eligible Virginians for several reasons. To begin, RoR is dependent on other state agencies to provide data on individuals who may be eligible, yet Virginia statutes, like those of other states, prohibit information sharing between state agencies except under defined circumstances.158 Further, confidentiality restrictions on who may access state databases prevent advocacy groups from helping with the work.159
Accessing Virginia’s court records to confirm eligibility and contact information is likewise constrained. Prior to 2016, Virginians hoping to regain the right to vote could do so only by submitting an application.160 Since Virginia lacks a centralized management system for court records, individuals, advocacy organizations, and RoR sought records at individual county courts. Some, but not all, counties make records available online, to varying degrees, and information about accessing court records is often murky.161 What is more, Virginia court clerks are elected, meaning that politics may play a role in how quickly courts respond to requests for information on people seeking to restore their civil rights.162 Beginning in 2016, McAuliffe no longer required people to produce court records in order to regain their right to vote.163 Yet, in the case of federal convictions, RoR must verify information with federal law enforcement agencies and federal courts, a process that has also proved challenging due to federal court clerk concerns about data sharing and privacy.164
Despite gubernatorial efforts to simplify the rights restoration process, RoR and voting rights organizations still exert “a tremendous amount of effort” to identify individuals eligible for rights restoration in Virginia.165 Finding contact information for individuals recently released from prison and not under supervised probation or parole is often a challenge. Those recently released from prison often live with friends or families or in transitional housing, and they therefore lack a permanent address.166 For those released from the correctional system years or even decades ago, locating accurate address information is similarly daunting, a task made more difficult if the individual moves, especially out of state, or changes her name.
Another cognizable hurdle to locating individuals who are eligible for voting rights restoration is reticence on the part of people with prior convictions to engage with government institutions. Institutional avoidance among people with histories of police stops, arrests, convictions, or incarceration is well documented.167 This lack of engagement with societal institutions has negative impacts on people’s health, employment, financial security, and exposure to crime. The surveillance state may even “fuel the very behavior it is trying to suppress,” because people who live “off the books” lack the sorts of institutional attachments, such as employment, associated with low crime rates.168 Unsurprisingly, this pattern of disengagement disproportionately impacts disadvantaged and minority populations.169
Many otherwise-eligible Virginians hesitate to come forward because of a perceived stigma related to their convictions. One caller to a radio talk show about rights restoration in Virginia who lost his voting rights as a young adult for marijuana possession explained that he lies to his kids every year on Election Day when they ask whether he voted.170 Many Virginians excluded from the political polity are too embarrassed to come forward to regain the right to vote.171 Additionally, in summer of 2016, frequent changes in policy combined with back-and-forth litigation left many otherwise-eligible Virginians confused about whether their right to vote could be restored.172
Although McAuliffe was extremely motivated to restore voting rights to as many Virginians as he could, and despite the expansiveness of the modern surveillance state, the task of locating eligible Virginians was remarkably fraught. These residents of the surveillance gap proved very difficult to find.
As these case studies show, life in the surveillance gap can be miserable and dehumanizing. It can harm mental and physical health, reinforce poverty, tear apart families, and strip people of dignity. In the surveillance gap, economic stability is difficult to maintain, and becoming economically mobile is nearly impossible. For citizens within the gap, the ability to effect change through voting is often restricted by barriers to voter registration, such as a lack of a permanent address (i.e., homeless individuals), voter disenfranchisement, or system avoidance. Government and private actors increasingly gather, aggregate, and analyze data to tackle social issues and apportion resources in health care, education, financial services, and more. People in the surveillance gap are excluded from these data streams due to a lack of access to technology,173 fear of creating an electronic trail,174 or failure to be captured within mainstream data collection mechanisms.175
As a result, their experiences and needs are left out of policy discussions and responses.176 Laws perpetuate the surveillance gap—a largely lawless zone. Moreover, elites obtain political benefits from the surveillance gap and maintaining its boundaries. The myth about the surveillance gap is that its inhabitants are responsible for their plight and affirmatively choose to remain invisible. By upholding this myth, society evades the collective costs of reforming structural systems that cause and perpetuate the surveillance gap.
III. Framing the Surveillance Gap
The discussion below examines the surveillance gap through five analytical lenses. First, we look to the growing recognition in privacy theory of differentiated privacy harms—the idea that different groups experience privacy harms in different ways. Second, we examine how feminist legal theory teaches us about the problem of viewing privacy harms through a strictly public-versus-private lens. Third, we review the consumer and criminal privacy scholarship that attaches agency to individuals through choice and consent defaults. Fourth, we explore fundamental rights theories of privacy, examining how countries that have formalized this theory into their bodies of laws effectively closed the surveillance gap altogether. Finally, we analyze how and whether Helen Nissenbaum’s theory of contextual integrity can inform our understanding of the harms suffered in the surveillance gap.
A. Differentiated Privacy
In 1890, the grandfathers of American privacy law, Samuel Warren and Louis Brandeis, criticized the growing phenomenon of yellow journalism, chronicling the lifestyles of the rich and famous, in their seminal article, The Right to Privacy. Warren and Brandeis wrote:
To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual.177
For Warren and Brandeis, the objects under the microscope were their elite peers; the voyeuristic masses ogled elites distastefully through the expanding dual scourges of instantaneous photography and penny journalism.178 American privacy law was therefore born not of respect for every American’s right of privacy, but rather of a push for rarified privacy, freeing elites from the gaze of the uncivilized.179 Warren and Brandeis’s assertions in some way mark the beginning of marginalized groups’ exclusion from the privacy narrative.180
In his 1967 book Privacy and Freedom, Alan Westin—another significant privacy scholar—took a more democratized approach to privacy, arguing that privacy of the common man manifested a core pillar of democratic society.181 Westin painstakingly documented the many ways in which the lack of privacy marked the totalitarian state.182 The expansion of privacy enabled the democratic citizen to form her thoughts and engage in democratic betterment.183 Though Westin democratized privacy, he did not address marginalized groups or examine the nuanced problem that too much privacy poses.184 For Westin, privacy was a good that every democratic citizen ought to seek and enjoy.185
Since Westin, scholars have fostered a narrative of privacy’s gradual demise. In light of an increasingly powerful and omnipresent administrative surveillance state and increasingly sophisticated private-sector efforts to track consumers on- and offline, scholars began to examine the impact of privacy laws and norms on different groups—what we call here “differentiated privacy.”186 Others began to ask whether and under what circumstances too much privacy is a problem.187 More recently, new strains of scholarship have begun to examine more nuanced impacts of differentiated privacy. Scholarship examining discriminatory surveillance is one example.
Discriminatory surveillance can be understood as surveillance of, or privacy intrusions on, certain groups as opposed to others. John Gilliom’s work on the welfare system’s hyper-surveillance of women receiving government benefits in rural Appalachia is illustrative.188 Other scholars follow this line of thought, wondering to what extent the dominant privacy narrative left out the stories of marginalized groups.189 They have explored what marginalized people have long known: that marginalized people tend to have less privacy in their homes, bodies, and decisions than their more privileged counterparts.190 As far back as the United States’ founding, “overseers of the poor” chased indigent people out of colonial towns or auctioned them off for labor.191 In the 1800s, “when poorhouses became the dominant poor relief policy, the poor were warehoused in dismal quarters where they labored under the watchful eye of the ‘keeper.’”192 Near the turn of the twentieth century, poverty policy became more benevolent;193 nevertheless, the Scientific Charity Movement “relied on ‘friendly visitors’ to investigate the homes of the poor and exhort them to higher morals.”194
When the New Deal created the modern welfare state, surveillance of the “undeserving poor”—able-bodied adults seen as capable of doing work—continued.195 For instance, in administering welfare, “states devised a variety of surveillance tactics—such as midnight raids on welfare recipients’ homes and moral fitness tests.”196 These tactics aimed to “reduce the welfare rolls and push poor women, mostly of color, into the low-wage labor force.”197 Welfare surveillance continues today, in the form of drug tests, DNA tests, fingerprinting, extreme verification requirements, and various forms of intrusive questioning.198
In short, scholars have documented the ways in which many marginalized persons have far less privacy than other Americans. Yet this narrative is incomplete; some marginalized persons have too much privacy.
Dean Spade explains the mechanisms by which the administrative state categorizes people, resultantly replicating power imbalances and further harming marginalized groups.199 Social welfare programs “are designed in ways that reflect and amplify contemporary understandings of who is ‘inside’ and who is ‘outside’ of the group whose protection and cultivation is being sought, which means they always include determinations of who deserves protection and who is a threat.”200 The groups of people described in this article’s case studies are all persons considered, in one way or another, to be a threat—either for their criminality, their impact on labor competition, or their failure to succeed in a capitalist system. Thus, they fall outside the line of societal protections, resources, and support.201
Surveillance scholars are also beginning to unpack what can be termed big-data discrimination.202 What happens when the harnessed forces of big data meant to address societal problems have negative impacts on certain groups? One early observer of this phenomenon, Kate Crawford, pointed to the problem of benefits flowing principally to the affluent and Internet-connected:
Big data can provide valuable insights . . . but it can only take us so far. Because not all data is created or even collected equally, there are “signal problems” in big-data sets—dark zones or shadows where some citizens and communities are overlooked or underrepresented. . . . [B]ig-data approaches to city planning depend heavily on city officials understanding both the data and its limits.203
Crawford cites Boston’s “Street Bump” app as an example. As the civic data movement took off, the City of Boston joined in, enabling city dwellers to transform their phones into mobile pothole detectors using a simple app. The app transmitted data directly to city government, which used the data to determine which areas of the city most needed street repair. Although an ingenious bit of civic imagination, the project had its weaknesses: most notably, residents of the more affluent portions of the city were more likely to install the app, thus distorting the true picture of need and exacerbating already-enormous disparities in Boston street maintenance.204
Daniel Castro similarly urges attention to this “data divide,” pointing out that “individuals who come from data-rich environments may find that they have a comparative advantage over those who grow up in data poverty,” and suggesting that these “advantages may translate into better health care outcomes, increased access to financial services, enhanced educational opportunities, and even more civic participation.”205 This growing divide may lead to “data deserts,” or “areas of the country characterized by a lack of access to high-quality data that may be used to generate social and economic benefits.”206 Harms that result from data deserts and discriminatory algorithms are drawing increasing scholarly attention.207 The case studies in this article show that the deserts already exist.
These examples provide illustrations of potentially discriminatory impacts of the civic data movement, data deserts, and distortion. Low-income people in particular risk either exclusion from opportunities such as access to credit or exposure to discrimination in the form of predatory lending based on data-driven algorithms, collaterally and adversely impacting areas such as employment, education, and policing.208 Yet current law, devised long before the rise of the Internet, provides scant protection against data discrimination.209
Since Warren and Brandeis, privacy scholarship has reckoned with differentiated privacy. Increasingly, modern privacy scholarship focuses on the problem of discriminatory surveillance, data collection, and data use. The surveillance gap adds an additional harm: discrimination that arises from the lack of data inputs from marginalized groups. The next section traces seeds of this idea in feminist legal theory.
B. Feminist Legal Theory and the Public/Private Binary
The bulk of privacy scholarship focuses on defining the benefits of privacy, tracking privacy’s demise, and suggesting remedies to restore it. In these discussions, privacy generally has positive connotations; it is variously associated with “freedom of thought, control over one’s body, solitude in one’s home, control over information about oneself, freedom for surveillance, protection of one’s reputation, and protection from searches and interrogations.”210 By contrast, feminist theorists have long recognized that privacy can be a double-edged sword; their insights are thus helpful for examining surveillance gaps.
Second-wave feminists identified and deconstructed the public/private divide in society and law that historically served to oppress women.211 Traditionally, the public domain was dominated by men to the exclusion of women, namely in work and politics.212 “By contrast, the private domain was that of home and family, where autonomous individuals lived free from state interference.”213
Nevertheless, feminists observed that domestic autonomy only truly extended to men, because women and children depended on them for material goods.214 This dominance emboldened men to abuse women in the home, their abuse exacerbated by a parallel failure of the state to intervene.215 Elizabeth Schneider called this dynamic “the violence of privacy.”216
Recognizing that facially harmless government inaction can ultimately be as detrimental as overtly destructive government action, feminists “rejected the view that the government’s hands-off approach was formally neutral, because the state set the legal ground rules that permitted private inequality to flourish unchecked.”217
Moreover, feminists argued that the ideal of autonomy was a myth for women, who are typically enmeshed in family relationships of dependency, care-giving, and attachment.218 Catherine MacKinnon posited that privacy can never be a basis for claiming rights, because it is a tool of gender subordination that leaves men alone (that is, out of the public eye) and thus free to oppress women.219 The feminist critique of the public/private divide led to legal and political demands and had powerful repercussions. For instance, the state today criminalizes domestic violence, provides legal recourse for women demanding equal treatment in the workplace, and recognizes a right to abortion, which enforces decisional privacy.220
This second-wave feminist theory of privacy, however, faced at least three major critiques. First, because it is based on the experiences of white, middle-class women, it ignored differences of class and race, particularly the experiences of poor, African-American women, who have historically lacked privacy in their bodies and homes.221 The state appropriated Black women’s bodies during slavery222 and subsequently coerced poor Black women into sterilization, disproportionately removed Black children from their homes through the child welfare system, and subjected Black women to searches and ongoing surveillance as a condition of receiving welfare.223 Thus, for poor, minority women, privacy in the home could offer a refuge from the oppression and racism of the outside world.224 At the same time, Black women were never excluded from the workforce; after slavery, they often worked outside the home, usually in domestic roles or backbreaking manual labor.225
Second, the feminist critique downplayed certain positive liberal values associated with privacy. Liberal feminists such as Anita Allen and Linda McClain have championed privacy, unwilling to “toss out the baby . . . with the bath water.”226 They acknowledge the harms done to women under cover of “privacy,”227 but contend that a reconceived notion of the public/private divide can be valuable for women as both a descriptive tool and normative goal. Privacy is essential to moral personhood and self-development;228 it provides women with a respite from lives devoted to domestic labor.229 Following liberal tradition, these feminists argue that women “should be permitted to live out their disparate, nonconforming preferences” and that privacy promotes this goal by giving women the space to develop and carry out their own ends.230
Third, a new generation of feminists has jettisoned certain forms of privacy. This movement, called “third-wave feminism,” is generally associated with a first-person, “narrative approach; [an] emphasis on sexual empowerment and liberation; [an] anti-essentialist perspective” that recognizes the diversity of women’s lives; and an “embrace of technology” as an organizing and confessional “tool.”231 Third-wave feminism is less overtly political than its forbears and focuses more on “personal evolution” than “collective revolution.”232 For these feminists, “throwing off the mantle of privacy is a freely directed choice by a liberated woman, or at least a positive step toward claiming autonomy” on her own terms.233 Female autonomy, however, faces an inevitable backlash. Women engaging in the public, online sphere have faced onslaughts of revenge porn and cyber-harassment.234 In turn, Allen has queried whether we need to “coerce privacy”235 in order to “undergird the liberal vision of moral freedom and independence [that] is generally consistent with both liberalism and with the egalitarian aspirations of feminism.”236
Feminist theory provides a helpful frame for considering the surveillance gap. It recognizes that privacy, at either of its extremes, can be devastating to people’s autonomy, dignity, and day-to-day subsistence.237 It shows how law demarcates both public and private spheres and can be a tool for both oppression and liberation. Just as law creates surveillance regimes, it also can create and reinforce surveillance gaps—by pushing certain groups into system avoidance or by privileging powerful interests over vulnerable groups. People in the surveillance gap—undocumented immigrants, homeless people, people with felony conviction histories, and day laborers—tend to have too much or too little privacy. Yet feminist theory recognizes what people in the surveillance gap know from experience: that privacy is inherently neither desirable nor distasteful. Rather, it is a deeply contextualized condition, its value varying based on the differences in people’s lives.
A key strand of feminist theory focuses on intersectionality, i.e., recognition that people embody multiple identities and can consequently suffer multiple oppressions on the basis of self-identity. Intersectionality is a “method for interrogating the institutional reproduction of inequality, whether at the level of the state, the family, or of legal structures more generally.”238 Kimberle Crenshaw identified how people experience different, interlinked systems of oppression and how law often fails to recognize those intersections. For instance, in employment discrimination, Crenshaw explained that Black women sometimes “experience discrimination as Black women—not the sum of race and sex discrimination.”239 Because discrimination law recognizes harms only on the basis of the mutually exclusive categories of race and sex, these Black women have difficulty stating a cognizable legal claim.240 Similarly, people in the surveillance gap suffer from interlocking forms of oppression and discrimination. For instance, day laborers fall into the surveillance gap due to a combination of national origin, gender, class, skill level, age, language, and non-citizen status. They are subject to structural constraints emanating from the “operation of global capital, through international relations, monetary policies, domestic social policies, the employment relationship [and] the family.”241 This combination of identities and structural inequalities results in extreme isolation and pushes legal relief out of reach for day laborers, as law protects some of their individual attributes, but ignores or punishes others. Indeed, the state of being surveilled or overlooked is itself an intersectional factor, but one that is rarely recognized. As Mary Ann Franks writes, “[m]arginalized populations, especially those who experience discrimination at the intersection of multiple forms of subordination, also often find themselves at the intersection of multiple forms of surveillance: high-tech and low-tech, virtual and physical.”242 Or, they might find themselves pushed into the surveillance gap.
C. Choice, Consent, and Resistance Within the Surveillance Gap
Most privacy discussions today explore how to preserve and maintain privacy boundaries when much of our personal information has been collected and stored by government and private industry. Although Americans routinely tell pollsters that they value privacy,243 most appear willing to sacrifice some degree of privacy to gain other benefits such as the convenience of online shopping, the sense of security when travelling through an airport, or the ability to chat with a wide network of friends on social media. The truth is that people do not want privacy absolutely; rather, they want to choose when to give it up and when to retain it.244 Given these attitudes, along with our political history, it is not surprising that our privacy-law regime is based on a liberal conception of the individual as an autonomous person who freely strikes bargains for her benefit.245 This framework is ill-fitting not only for preserving privacy, but also for bridging the surveillance gap.
The law regarding government surveillance is also based on a model of consent. The Fourth Amendment protects people from unreasonable government searches and seizures. The Supreme Court has long held that the Fourth Amendment protects only objectively reasonable expectations of privacy. In Katz v. United States, the Court ruled that a defendant had a reasonable expectation of privacy in a phone booth.255 Once outside the proverbial phone booth (or if citizens choose not to close the phone booth door), citizens lose this protection; they have chosen to give up their privacy rights. Thus, the Fourth Amendment does not attach to information that people share in public or to third parties,256 such as “data given to commercial third parties, including banking records, telephone call lists, cell phone locations, or Internet search or subscriber information.”257 All of this privately gathered data is shared regularly with government entities in a “public private surveillance partnership.”258 To keep anything private, one must maintain absolute secrecy, which is increasingly impossible.259 Moreover, as everyday expectations of privacy diminish, it is less reasonable to expect the government to respect individual privacy. Even where the Supreme Court recognizes a reasonable privacy interest, the Fourth Amendment’s requirement of a warrant supported by probable cause falls away in the face of voluntary consent.260 The Court has found consent even in situations marked by extreme police intimidation.261 As one commentator has summarized, “though the premise of the consent-search doctrine is that people are free to decline, the reality is that nearly everyone ‘consents,’ at least as the Court has defined that term.”262
The consent calculus falls particularly harshly on marginalized people. The Supreme Court has ruled that once a person seeks government assistance, she “chooses” to relinquish any claims to privacy.263 For instance, in Wyman v. James, the Court upheld the policy of having government workers search the homes of welfare recipients to ensure compliance with welfare eligibility requirements.264 The Court ruled that the visits were not searches covered by the Fourth Amendment because “[t]he choice is entirely [the individual’s], and nothing of constitutional magnitude is involved.”265 Yet someone whose children are hungry and who faces homelessness without government assistance “consents” only under conditions of duress.266 By contrast, more affluent citizens are not asked to consent to searches of their private homes in exchange for the valuable government benefits they receive, such as mortgage home deductions and child tax credits.267
In both the consumer-privacy and government-search contexts, it is tempting to argue that providing clear and accurate information to help people make informed and voluntary choices would resolve these disparities in privacy norms that contribute to the surveillance gap. Yet the choice-and-consent framework assumes that people negotiate their own privacy boundaries. In the surveillance gap, people have far less agency and information to strike privacy bargains in their interest. Many do not consent to live with the extreme forms of privacy that demarcate the surveillance gap. Rather, many possess little or no political voice or power. To the degree that individuals in the surveillance gap exercise autonomy, they must do so in a very narrow space that is restricted by outside forces.
Compounding the problem, ideologies promoting individual choice can place blame on marginalized groups for their predicament. Undocumented immigrants, for example, choose to come to the United States. Criminals choose to commit crimes. Low-wage laborers choose to work by the day. Homeless people choose to live outside of society’s margins. Otherwise-eligible people with felony conviction histories are uninterested in voting. But in reality, these are highly constrained choices. Thousands of undocumented immigrants come to the United States to flee conditions such as violence, persecution, and hunger.268 Day laborers lack the documentation or legal status necessary to obtain work in the formal economy.269 People with felony conviction histories find themselves subject to the whim of arbitrary and often confusing state laws, some of which “place no restrictions” on the ability to vote from prison (as in Vermont and Maine),270
others of which bar people who have committed felonies from voting for life.271 People become homeless as rents rise and incomes fall. In this way, choice-and-consent frameworks are problematic for all people, are particularly problematic for disadvantaged populations, and are nearly useless in the surveillance gap. If notions of consent come to dictate our understanding of how people fall into the surveillance gap, we are doomed to widen it. Still, agency and choice go both ways: giving more choice to people in the surveillance gap can be a critical means of protecting their dignity and safety.
Agency has been an important concept as privacy scholars have attempted to understand privacy harms and construct ways to address them. A piece of the agency puzzle came into focus with the important work of one scholar who suggests that individual choices about information flow are a matter of context. We turn to Helen Nissenbaum’s theory of contextual integrity next.
D. Contextual Privacy and the Surveillance Gap
In 2010, Helen Nissenbaum presented a resonant theory of privacy in a digitally connected world. She posits that what offends privacy sensibilities is not the sharing of information in and of itself, but the sharing of information along pathways different from those that a particular piece of information generally travels.272 For example, a doctor sharing a patient’s information with a nurse or another attending physician does not raise privacy hackles; a doctor sharing her patient’s sensitive information with a marketing agency would, for many, constitute a grievous privacy invasion. Nissenbaum terms this idea “contextual integrity.”273 Her premise is that the right of privacy boils down to the right to appropriate information flows.274
Is this theory useful in understanding the surveillance gap? In one sense, fears of contextual integrity harms propel some people into the surveillance gap. The fear, for example, that immigrant data collected in one context (DACA) will be used in another context (deportation) is a prime reason that many undocumented people populate the surveillance gap.
In another sense, the surveillance gap is hard to fit within the theory of contextual integrity. Nissenbaum’s work assumes an extreme information environment where data flows even without individual data subjects’ knowledge. As Nissenbaum describes it, the problem of contextual integrity arises from “the extraordinary surge [in the modern world] in powers to communicate, disseminate, distribute, disclose, and publish—generally spread—information.”275 In this environment, contextual integrity seeks to explain a crisis in privacy—situations in which privacy norms amid this massive information flow are not respected. The surveillance gap, however, is the inverse of out-of-control information flow: expected information flows between Point A and Point B are not happening at all.
The surveillance gap is not a failure to adhere to privacy norms, but rather a failure—be it purposeful or accidental, benign or malignant—of data and information to follow the same flows for residents of the surveillance gap as nonresidents. This “information inequality” is a source of privacy concern.276 Information inequality describes the problem when the holder of data has more information than the data subject, resulting in the data holder controlling or otherwise duping the data subject. For example, two people might enjoy buying books from an online bookseller. In collecting information about the buying habits of one user versus another, the online bookseller might opt to offer a discount to one user but not the other. Both users are unaware of the benefit flowing to one and not the other, and both are victims of information inequality with respect to the information that the users have versus the information that the bookseller has. Information inequality in this context is problematic, akin to price discrimination.277 In the surveillance-gap context, information inequality results in data flows providing benefit to some but precluding others from receiving similar benefits because the provider of the benefit has no information about some individuals at all.
Many of us expect that, in our modern data-driven environment, an entity, government or otherwise, can effortlessly grant benefits to citizens. Whether the benefit is healthcare, democratic participation, or a coupon for a consumer good, we assume that the body hoping to bestow the good or service will be able to reach targeted individuals to provide it. The surveillance gap disrupts this expected flow, not by improperly re-routing information, but by stopping the flow altogether. If privacy, as it is often conceived, is the ability to control access to self,278 then the residents of the surveillance gap have won the privacy game—they have it. But to the extent that residents of the surveillance gap want to assert the autonomy that a functioning flow of information provides, or to the extent that these surveillance gap residents have “privacy” as the result of an unwanted or inappropriate disruption in flow, Nissenbaum’s core concern is reflected. As Nissenbaum explains, contextual integrity is “the right to live in a world in which our expectations about the flow of personal information are, for the most part, met.”279 In the case of the surveillance gap, information flow does not meet expectations because information does not get where it is supposed to go. Like the notice-and-choice problem in the consumer-privacy context, residents of the surveillance gap cannot exercise autonomy and choice in setting the norms that define information flows to them and about them.
E. Privacy, Fundamental Rights, and the Gap
The United States Constitution does not directly afford Americans the right to privacy.280 In Europe, in contrast, Articles 7 and 8 of the Charter of Fundamental Rights of the European Union affirmatively grant a European Union citizen “the right to respect for his or her private and family life, home and communications” and “the right to the protection of personal data concerning him or her.”281 As a consequence, privacy in Europe is perceived as a fundamental human right.282 This theoretical perspective has deep implications for European laws ranging from aggressive libel laws to protect the dignity of persons283 to Europe’s strict data protection rules,284 and beyond.
One might assume that a fundamental-rights approach to privacy would cast the entire European population into the surveillance gap—i.e., that its residents would be sheltered from surveillance because of the primacy with which Europeans place the right to privacy. To the contrary, recognizing privacy as a fundamental human right in Europe has a counterintuitive effect: no surveillance gap to speak of. Indeed, as one Spanish privacy law scholar put it, the idea of a surveillance gap in Europe is “simply unthinkable.”285
The fundamental-rights approach to privacy can inform our understanding of the surveillance gap in the United States. Government surveillance in Europe is generally not seen as a menacing privacy invasion that threatens personal liberty.286 For example, one account describes the millions of European CCTV cameras as “a friendly eye in the sky, not Big Brother but a kindly and watchful uncle or aunt.”287 Viewing the state as a helpful partner, rather than as the ominous threat as it is often feared to be in the United States, has the effect of closing the surveillance gap in Europe almost entirely; this attitude defines in many ways how Europeans live and interact with authorities on a daily basis and is a critical means by which Europeans enjoy full rights of personhood. Relatedly, most European countries have a larger social safety net than the United States,288 and poor people may thus feel that turning over personal information to the government is well worth the benefits obtained.
Two aspects of European administrative practice illustrate this reality. First, many European countries use town registry systems to keep tabs on their citizens. In Austria, all people establishing residency within a town or city must register with the Meldebehörde for themselves and all minors in their household within three days of moving.289 In Belgium, new residents have eight working days to register at the municipal administration office/town hall (maison communale/gemeentehuis).290 In Italy, residents are required to inform the local municipality of their intention to move and their new address.291 Local government officials verify registrations, and failure to comply with local registration requirements within the deadline for doing so results in fines.292 This system allows European national governments to keep track of their citizens for purposes of public safety, administering social safety net programs, administering nationalized healthcare, running elections, conducting the national census, and many other administrative state functions.293
A second and related illustration is the widespread use of national identification cards in Europe.294 Many European countries require residents to carry identification cards. Some make the national identification card compulsory.295 Though national identification systems in Europe are not ubiquitously approved—in Great Britain, for example, national identification became a central campaign issue in the lead-up to the 2010 general election296—national identification cards are nevertheless a mainstay in most European countries, and indeed around the world.
In contrast, the United States does not have a compulsory (or non-compulsory) resident registration program, nor do citizens carry a national identification card.297 This has caused headaches in administrative contexts, including voting.298 By basing our laws and norms on a liberty-centric conception of privacy, Americans forgo the civic protections that a fundamental rights-based orientation offers. This lack of civic and legal protection plagues members of the surveillance gap. The next part explores potential ways to address the surveillance gap’s worst consequences.
IV. Bridging the Surveillance Gap
One potential fix for the harms that stem from the surveillance gap—at least if Europe’s experience is a guide—is surely out of reach: wholesale adoption of a fundamental rights theory of privacy. Socio-cultural norms are undoubtedly too ingrained to undo American aversion to state surveillance and cataloging of the populace. Nevertheless, a dignity-based understanding of privacy may allow for a reduction of the ill effects of the surveillance gap, as described below.
Closing the surveillance gap is difficult significantly because Americans want their liberty to be let alone.299 For many Americans, the existence of the surveillance gap is a manifestation of liberty. They may see the surveillance gap not as a problem, but as an outgrowth of a value that Americans hold dear: the right to disappear.
Additionally, the surveillance gap is a complex space, and one set of solutions is unlikely to address the contextualized harms that arise within it. It exists for multiple reasons, ranging from bias on the part of government actors, to economic advantage for employers, to the choice to remain by surveillance gap residents in the face of oppressive state systems or societal neglect. People in the surveillance gap constitute a huge cross-section of American society and hold diverse goals and interests. Even within the same sub-category of surveillance gap inhabitants, interests may diverge. For example, while many Virginians with felony conviction histories are thrilled to be “found” when it comes to regaining the right vote, others prefer to eschew all interaction with the state—including voting.300 Indeed, being counted is not necessarily a solution to extreme privacy because it can bring people into systems that are themselves harmful without transforming those systems.301
Finally, “solutions” to the surveillance gap are difficult to pinpoint because the causes of the surveillance gap are wildly intractable. Poverty, discrimination, economic subjugation, and social control all feed the surveillance gap’s existence. If the surveillance gap is a consequence of these much larger forces, perhaps it is no more “solvable” than these large and deeply embedded social ills.
With these complexities in mind, this section offers measures that might, at least at the margins, address the ill effects of the surveillance gap. Our suggestions hinge on the dual concepts of resilience and resistance. With regard to resilience, Martha Fineman has explained how vulnerability is a universal and inevitable human condition; for instance, we all face periods in life when we are children, ill, or victims of accidents or disasters.302 Yet American law is built on the notion of an autonomous individual without communal ties or responsibilities.303 Fineman thus urges creation of a “responsive state” that actively invests in enhancing the resilience of its vulnerable citizens.304 In her view, resilience is “what provides an individual with the means and ability to recover from harm, setbacks, and the misfortunes that affect her or his life.”305 Resilience is “largely dependent on the quality and quantity of resources or assets that he or she has at their disposal or command.”306 In turn, these resources are “accrued . . . within an array of social structures and institutions over which individuals may have little, if any control.”307 Currently, people in the surveillance gap show tremendous resilience in staying afloat, often through family and community support and sharply honed survival skills. Yet from a societal perspective, they are denied resources—such as education, job access, affordable housing, fair pay, or a voice in our democracy—that would build their resilience and ability to live with dignity, without fear or hardship. People in the surveillance gap currently develop resilience in the face of a restrained state, not with the support of a responsive state.308
Resistance is another key element of bringing privacy into balance. Scholars have long noted how heavily-surveilled populations resist in subtle ways. Gilliom in his study of Appalachian welfare mothers described how welfare recipients resist government surveillance by seeking cash-only jobs to supplement their income, accepting gifts such as diapers from family and friends, and taking similar steps to “quietly meet the needs of their dependents through daily actions that defy the commands of the state.”309 Similarly, studies find that call-center employees resist surveillance by pretending to talk on the phone, leaving call lines open without customers on the line, and misleading customers.310 Gilliom envisions a future in which “[e]veryday tactics of evasion, subterfuge, and concealment, then, may very well become a defining form of politics in the surveillance society.”311 These tactics also describe daily survival in the surveillance gap. However, resistance within the surveillance gap can also look diametrically different; it often means coming into the sunshine. To climb out of the surveillance gap, marginalized groups benefit from organizing and demanding that they be seen. Some examples are illustrative. For day laborers, one of the most effective forms of resistance to the surveillance gap has been organizing through worker centers,312 “community-based and community-led organizations that engage in a combination of service, advocacy, and organizing to provide support to low-wage workers.”313 Worker centers fill a regulatory and union gap. There are at least 150 of them, and they aim to engage workers in collective action within a social justice frame.314 One common strategy is to target employers who engage in wage theft by “calling employers and asking them to pay, filing wage claims, and picketing when they don’t.”315 These actions have targeted small employers as well as major chains such as Taco Bell, which was the subject of a boycott to improve working conditions and wages for tomato pickers.316 Worker-center efforts have also been successful in coordinating enforcement with government agencies and enacting beneficial local and state legislation, such as a New York Unpaid Wages Law that increased the penalties on employers for wage theft.317
Most recently, a worker center in Jackson Heights, New York developed a smartphone app called Jornalera, which means “day laborer,” that allows workers to track their hours and pay, take and upload pictures of work sites and employers, and share this information for legal and advocacy efforts.318 Using technology is a particularly powerful way to increase the autonomy of day laborers, who are in the best position to gauge the level of privacy that they want to retain or shed.319 Overall, worker centers “provide the necessary mechanisms to increase the transparency of the hiring process, effectively monitor employment conditions, and provide opportunities for worker incorporation into the formal economy.”320 Day laborers who take advantage of worker centers are also associated with higher rates of social inclusion and reduced isolation.321 Despite these successes, the vast majority of day laborers are not served by worker centers, and worker centers struggle to maintain funding.322 Further, the Trump administration is expected to impose restrictions on worker centers to limit their effectiveness, such as limitations on protest activities.323 Still, traditional organizing tools and new technologies hold promise for day laborers in resisting the surveillance gap.
Additional, powerful examples of resistance to the surveillance gap arise in the context of homelessness. Homeless people have used their visibility as a way to fight the surveillance gap. For instance, in Seattle, a coalition of shelters and tent camps called SHARE/WHEEL fought the city’s proposed HMIS mandatory tracking system by threatening to move all residents into public parks.324 HMIS, which gathers data about homeless persons for the ostensible purpose of assessing needs and coordinating services, has been critiqued for presuming that homelessness is a personal pathology created by poor life choices that requires state intervention and management.325 Moreover, while HMIS captures data about services used, it does not allow homeless persons to identify their own needs.326 Thus, for the Seattle movement, members sought “to maintain a space outside the gaze of the state wherein the presumption of the pathology could be both avoided and contested.”327 The homeless individuals were less concerned about data privacy (a pre-occupation of wealthier Americans when it comes to big data collection), than about evading the stigma of homelessness. For this reason, Tony Sparks argues that privacy rights are not simply carried by individuals; they also populate physical space.328 Ultimately, the protest was successful. After lengthy mediations, the city adopted an “opt-in” version of HMIS that did not require individuals to offer information to receive services or require shelters to participate as a funding condition.329
A project in Ann Arbor, Michigan involved having homeless people photograph their everyday lives “as a way to document their struggles and strengths . . . and to reach policy makers and the broader public about issues of concern to homeless people.”330 This project was part of a health-promotion strategy called photovoice—with roots in feminist theory, documentary photography, and critical education—which helps people to see connections between their individual situations and root causes and to devise strategies for change.331 Participants were recruited from local shelters and trained not only in photographic methods, but also in the ethics and power dynamics involved in photographing other people.332 After the photo shoots, participants discussed the content and context of their photographs, and the photos they selected were featured in local media, a gallery exhibition, and a forum at a public theater.333 Policy makers were surprised to learn that people living in shelters sometimes held multiple jobs,334 and they had to confront the way that homeless people perceived the building of a new homeless shelter on the outskirts of town.335 This process of making their lives visible was powerful for the homeless participants—they reported improvements to their self-esteem and quality of life and spoke of the ability to define their own lives outside the parameters that society placed on them.336
Homeless people’s visibility has led to the development of formal tactics to render them invisible. Nevertheless, from within the surveillance gap, homeless persons have resisted by re-asserting their visibility. In turn, “the presence of visible poverty forces society to confront inequality of income, education, health care, and criminal justice.”337 Ultimately, homeless people need autonomy to set their own privacy boundaries, a power that wealthier Americans already possess. “[W]hat homeless people . . . need more of is both publicity—through which their needs can be recognized as legitimate—and privacy—through which they can protect themselves from absorption and de-legitimization from the public.”338
Striking this balance is essential for other people in the surveillance gap as well. Marginalized people tend to live at privacy’s extremes. At either end of the spectrum, people lack control over their personal information and the degree to which they interact with mainstream institutions. Strategies that give people the autonomy to assert or shed privacy are essential to their individual dignity and to fulfilling our communal, democratic promise. The examples above show that grassroots organizing, driven by the objectives and insights of affected groups, can be powerful in enhancing autonomy. Professionals working with marginalized populations, such as social workers, lawyers, and community organizers, can assist in these grassroots movements by providing support to a group’s self-defined goals. Education about legal rights, remedies, and risks can help people in the surveillance gap make wise decisions about how to live their lives. For instance, many ex-felons in Virginia are unaware that they have the restored right to vote; without that knowledge, they cannot exercise an informed opinion about whether to register. Likewise, new technologies—as simple as a smartphone application—can be effective in helping people strike a privacy balance that calibrates to their needs.
In addition, some states have been receptive to building the resilience of undocumented persons. Consider, for instance, the twelve states, along with the District of Columbia and Puerto Rico, that allow undocumented immigrants to receive driver’s licenses and obtain insurance, so that they can drive, to work and elsewhere, without breaking the law.339 Certain states and localities are limiting their law enforcement cooperation with federal immigration authorities “in furtherance of important state interests involving their immigrant communities.”340 These jurisdictions believe that their sanctuary stance enhances public safety by encouraging immigrants to report crimes and by allocating spending toward crime fighting rather than illegal-immigrant search expeditions.341 In the current polarized political climate, advocacy at the state and local level can sometimes be more fruitful in law reforms that aid marginalized communities.
Lawyers should continue to develop robust visions of positive, constitutional social rights, despite the current conception of a Constitution that protects individuals only against government interference342 and thus fails those living in the surveillance gap. In the 1960s and 1970s, a legal movement for constitutional social and economic rights led the Court to adopt procedural due process rights to protect governmental benefits and to invoke statutory interpretations that increased access to benefits.343 While the Court became more conservative and ultimately pulled back from an emerging theory of minimum social entitlements,344 the future may cycle back, giving way to a more responsive state that pulls marginalized persons into the mainstream.345
The first step in tackling the problems of the surveillance gap is to recognize its existence and to acknowledge the harms it produces. From there, we can integrate it into privacy discussions and create tools that enable residents of the surveillance gap to fight against its worst consequences and to access social supports on their own terms.
The current narrative within privacy law is that privacy is dead, or at least on life support. The loss of privacy threatens people’s sense of self and engagement in self-expression. Poor people and members of minority groups face great privacy incursions and may be subject to increasing forms of big-data discrimination. This article shines a light on a countervailing reality—the harms of having too much privacy in a society in which attachment to mainstream data streams, resources, and institutions is necessary to thrive. Many undocumented persons, day laborers, homeless persons, people with conviction histories, and others live within a surveillance gap, yet this phenomenon is rarely acknowledged in privacy discourse. The harms within the surveillance gap are serious, encompassing physical and mental injuries, big-data marginalization, economic instability, and loss of democratic participation. Like surveillance, the surveillance gap is a form of social control. It keeps people down.
In response, people living in the surveillance gap have shown incredible resilience, surviving day-to-day by engaging in multiple forms of resistance. But small triumphs do not transform the structural inequalities that perpetuate the gap. Accordingly, a vision of privacy and a framework for privacy law that balances the privacy interests of all persons and that does not simply reflect the assumed desires and needs of elites is needed. Marginalized communities should have a role in shaping a balanced vision of privacy that recognizes both the benefits and costs of privacy in differing contexts. Too little privacy is bad, but so is too much. The key going forward is to get the balance right.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.