Computers, Privacy & the Constitution

Surveillance as Subordination

Americans usually think about rights in individual terms. I have the right to express myself freely. I have the right to own my property. Privacy rights are thus conceived as rights based on individual autonomy. The right to privacy is found in this context. A man's home is his castle. The state has no place in the marital bedroom. To quote Lewis Brandeis, the right to privacy is the right to be let alone. Seen this way, surveillance is an infringement on an individual’s autonomy -- and if done by the state, may invoke the individual's constitutional privacy right.

But, surveillance is not just about an individual person’s right to act within the seclusion of his own home or thoughts. Limiting the discussion of surveillance to its infringement on "private life" alone leaves out the social role of surveillance. Surveillance by the government is more than just the direct imposition upon individual people, or even on the monitoring of individuals who associate for political purposes. Surveillance also acts as a crucial player in establishing and reinforcing particular forms of group subordination. Talking about surveillance as an aspect of subordination is thus essential to discussing the politics of surveillance.

Of course, for many of those who participate in the discourse on surveillance, its relationship with social inequality is likely to be remote from personal experience. In the context of online privacy, the cost of computers and access has always meant that Internet use was sharply skewed along lines of race and class. While Internet access has become broader and cheaper, still, Black and Hispanic people are significantly underrepresented online, as are lower incomes. Debates over online privacy rights become debates over rights as conceived by a community that is whiter and wealthier than American society as a whole.

More generally, the individual autonomy conception of privacy is associated with a particular kind of class and culture. If privacy is about rights that arise out of seclusion away from the community, then what about communities that depend much more on social interaction with extended families and neighbors, such as immigrants and the poor? This is not to denigrate the violation of individual autonomy imposed by surveillance. Rather, the point is that to really understand the impact of surveillance, we all must appreciate how its application reflects and reinforces patterns of subordination -- and has done so for decades, before there was a Facebook or even any public web at all.

In the United States, the administrative surveillance state emerged out of the government's effort to monitor and police the poor. John Gilliom's 2001 book, The Overseers of the Poor, details the extent of the integrated and computerized surveillance system that was developed to administer means-tested social programs, such as the Food Stamp program, Medicaid, and Welfare, and its impact on the poor communities in Ohio’s Appalachia region. The expressed objective is to prevent fraud, making sure that benefits go to those who are eligible and deserve them. The surveillance state has expanded under Republican Administrations that have sought to scapegoat the benefit-receiving poor to gain middle class votes, demonizing welfare queens who drive Cadillacs (managing to simultaneously target both race and gender divides). It has also expanded under Democratic Administrations that seek to advance a narrative of "competence" in a rearguard action to preserve what is left of the welfare state.

The administration of government assistance programs entails monitoring the activities of people through all kinds of government databases, involving diverse areas like taxes, employment, and health care. A critical component in monitoring the pool involves the use of the Social Security Number as a unique identifier used across a range of public and private activities. As established by the Supreme Court in its 1986 Bowen v. Roy decision, there are no limits on the government requiring disclosure of SSN to enroll in benefit programs. (In that case, a Native American family challenged the use of SSN in place of names as a violation of free exercise of religious practices that require use of a person's true name.) Along with the SNN, enrollees must disclose a large amount of personal information and also allow for monitoring and investigation by the surveillance state. This can include home visits without warrants, allowed by the Supreme Court in Wyman v. James in 1971, on both the basis of the federal government's interest in administering the program as well as the waiver of privacy rights upon enrollment.

The result is a class of people who, as a result of their poverty and consequent dependence on benefit programs, must also submit to a broad program of state infringement on their family’s lives. As Gilliom's interviewees describe, resistance occurs as necessary to survive through the informal economy of odd jobs, caretaking, and even poaching in rural areas. But, there is rarely, if ever, assertion of legal rights.

Autonomy-based privacy rights depend on a lack of coercion. Fundamental social inequality creates a basic structure of coercion that renders this conception of privacy rights meaningless for subordinated groups. This is what the poor who depend on government assistance confront. This is true for immigrants whose status is in question or at risk, for the people who live in housing projects or "blighted" neighborhoods, who are overwhelmingly people of color, and for Muslims who are collectively suspect post-9/11.

The individualist response to social inequality has generally been to put everything back in terms of individual freedom and equality -- racial colorblindness or "gender-blindness." A privacy rights debate based on this kind of individualism will fail, because it cannot account for the existing architecture of inequality that makes coercion inevitable. It will fail to account for the way this social structure defines who is in the "in-crowd" of citizens who own their privacy rights -- and who is out, because of their immigration status, race, class, or religion. For privacy to be a universal right, everyone must be equally empowered to assert all of their rights, both as individuals and within their communities.

-- By BahradSokhansanj - 12 Mar 2012



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r2 - 11 Jan 2013 - 21:48:49 - IanSullivan
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