Poverty and Privacy

• Introduction |
• News |
• Resources |
• Cases

Top News

• Vermont Shelter Protests Homeless Tracking System.The Rutland Herald reportsthat the Open Door Mission, a homeless shelter in Rutland, VT, is refusing to transmit its clients' information to the Homeless Management Information System (HMIS). The shelter is willing to forego roughly $40,000 in federal grants in order to protect the privacy of those who make use of the Open Door Mission's services. (Jul. 12)
• EPIC Urges HUD to Drop Homeless Surveillance.EPIC, joined by eight civil liberties groups, submitted commentsto the Department of Housing and Urban Development, urging the agency to reformulate its Homeless Management Information System. As proposed, the system would lay the groundwork for a national homeless tracking system, placing individuals at risk of government and other privacy invasions. (Sept 23)
• Coalition Alerts Congress to Homeless Surveillance System.EPIC and a coalition of 24 privacy, civil liberties, and homeless advocacy organizations sent a letterto Congress today to warn Members of the Department of Housing and Urban Development's plans to create a homeless surveillance program. The program, known as Homeless Management Information Systems, collects detailed personal information on the homeless, and enables it to be shared regionally. The program raises risks of a national, centralized homeless tracking system, risks to domestic violence victims who are seeking shelter, and heightens the ability of law enforcement to gain access to personal data. The public can comment on the program until September 22, 2003. (Sept 9)
• EPIC Alerts Public to Homeless Tracking System. Proposed guidelinesto create a homeless tracking database called "Homeless Management Information Systems" present serious risks to civil liberties. EPIC has released a new fact sheetdetailing the risks, and urging the public to send comments to the Department of Housing and Urban Development in opposition to HMIS. (Aug 19)
• HUD Announces Homeless Tracking System.The Department of Housing and Urban Development announced guidelines(pdf) for " Homeless Management Information Systems" (HMIS). HMIS is a standard system for tracking homeless persons and the services rendered to them. Entities that provide services would collect their names, Social Security Numbers, dates of birth, race, gender, health status (including HIV, pregnancy, and domestic violence), veteran status, and income information. Although the plan does not call for a national, centralized database, the information collected could easily facilitate the creation of such a database in the future. Furthermore, law enforcement, Secret Service, and National Security access to the database would be nearly unlimited. The guidelines are open to public comment until September 22, 2003.

Introduction and Background

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

Fraud Prevention: Welfare Surveillance and EBT

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

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

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

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

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

• John Gilliom, Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy (University of Chicago Press 2001).

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

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

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

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

HMIS -- Homeless Management Information Systems

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

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

• HMIS Proposed Guidelines(PDF), July 2003.
• EPIC Fact Sheet on HMIS(PDF), August 2003.
• Gov't Proposes Massive Homeless Tracking System, Slashdot, August 19, 2003.

News

• Ripped Off, New ATM Card Screws Poor People, The Stranger, November 4, 1999.
  
• Citigroup and the Privatization of Welfare, Citiaction.

Resources

• National Center on Poverty Law.
• NOW LDEF Welfare and Poverty Page.
• John Baggaley, Orwell on Poverty and Inequality, 10 EPIC Alert 13, June 25, 2003.
• Christopher Slobogin, The Poverty Exception to the Fourth Amendment, 55 Fla. L. Rev. 391 (January 2003).
• Naomi K. Seiler, Abstinence-Only Education and Privacy, 24 Women's Rights L. Rep. 27 (Fall/Winter 2002).
• Fabio A. Sciarrino, Ferguson v. City of Charleston, The Doctor Will See You Now, Be Sure to Bring Your Privacy Rights In With You, 12 Temp. Pol. & Civ. Rts. L. Rev. 197 (Fall 2002).
• Electronic Benefit Transfer, A new system for distribution of food stamps and possibly cash benefits, Consumers Union Information Packet, April 2001.
• David Cole, No Equal Justice(New Press 1999).
• William J. Stuntz, The Distribution of Fourth Amendment Privacy, 67 Geo. Wash. L. Rev. 1265 (1999).

Cases

• Ferguson v. City of Charleston, 532 U.S. 67 (2001). The Court held in this case that a state hospital cannot perform diagnostic tests to obtain evidence of criminal conduct without the patient's consent because such a test would be unreasonable and violate the Fourth Amendment. In the case, a state hospital, in cooperation with local law enforcement, began ordering urine samples for drug testing from maternity patients who were suspected of using cocaine. If a patient tested positive, the hospital immediately contacted local law enforcement to arrest the patient. The petitioners, who were all women arrested under the hospital's policy, successfully challenged the search as unconstitutional.
• Bowen v. Roy, 476 U.S. 693 (1986). Known as the "Little bird of the snow case," where the parents of a child sued to challenge the requirement that the child be assigned a Social Security Number in order to continue receiving benefits. The parents objected to the SSN requirement as a violation of the Free Exercise Clause of the First Amendment. The Supreme Court rejected this argument, holding the SSN requirement Constitutional as it was a neutral and uniformly applicable requirement that used a reasonable means to promote public interests in fraud control.
• Wyman v. James, 400 U.S. 309 (1971).
• Goldberg v. Kelly, 394 U.S. 254 (1970). This case established that the receipt of benefits is a legal entitlement, and that revocation of such an entitlement requires due process.
• King v. Smith, 392 U.S. 309 (1968). This case reversed an Alabama regulation that denied access to certain benefits if the recipient co-habitated with an able-bodied man. The Court held that the benefits were designed to provide economic security for children, and the suspected impropriety of a parent did not justify the revocation of benefits.