INTRODUCTION I. THE INTERSECTION OF PRIVACY AND POVERTY A. Brief History of Privacy-Related Vulnerabilities and Surveillance of the Poor B. The Evolving Nature of Privacy Harms Experienced by the Poor C. Big Data Analytics, Social Media, and the Potential for Negative Impacts Among Low-Income Communities II. SURVEY OF PRIVACY AND SECURITY CONCERNS OF LOW-INCOME INDIVIDUALS A. Challenges in Demonstrating Harm and Need for Empirical Research Highlighting Unique Vulnerabilities of Low-Income Groups B. Survey Methods and Goals C. Patterns of Mobile Internet Use Unique to Low-Income Populations D. Privacy and Security Vulnerabilities Associated with Reliance on Mobile Devices E. Social Media Use, Privacy-Protective Behaviors, and Confidence in Skills III. CASE STUDIES AND LEGAL ANALYSIS A. Employment 1. The Use of Social Media to Determine Employability 2. Legal Analysis of Applicant Tracking Systems B. Higher Education 1. Big Data Tools Impacting Access to Higher Education 2. Legal Analysis of Predictive Analytics in College Admissions C. Policing 1. The Emerging World of Threat Scores and Predictive Policing Tools 2. Legal Analysis of Predictive Policing IV. SUGGESTED REMEDIES AND THEIR EFFICACY FOR LOW-INCOME POPULATIONS A. Notice and Choice B. Digital Literacy C. Due Process D. Comprehensive Consumer Privacy Legislation E. Areas for Further Research Conclusion APPENDIX: SUMMARY OF SURVEY METHODS INTRODUCTION
Low-income communities have historically been subject to a wide range of governmental monitoring and related privacy intrusions in daily life. (1) The privacy harms that poor communities and their residents suffer as a result of pervasive surveillance are especially acute in light of the resulting economic and social consequences and the low likelihood that they will be able to bear the costs associated with remedying those harms. (2) In the "big data" era, there are growing concerns that low-status Internet users who have lower levels of income or education may be further differentially impacted by certain forms of Internet-enabled data collection, surveillance, and marketing. (3) Low-status users may be both unfairly excluded from opportunities (such as access to credit) and unfairly targeted (for example, by predatory marketing strategies) based on determinations made by predictive analytics and scoring systems--growing numbers of which rely on some form of social media input. (4) These new kinds of "networked privacy" harms, in which users are simultaneously held liable for their own behavior and the actions of those in their networks, could have particularly negative impacts on the poor. (5)
In addition to the harms created by targeting or exclusion from opportunity, the poor may face magnified privacy vulnerabilities as a result of community-specific patterns around technology use and knowledge gaps about privacy- and security-protective tools. (6) Legal scholars have identified a broad group of consumers as "privacy vulnerable" when they "misunderstand the scope of data collection and falsely believe that relevant privacy rights are enshrined in privacy policies and guaranteed by law." (7) These misconceptions are common across all socioeconomic categories, but this Article suggests that these conditions may be exacerbated by poor communities' higher reliance on mobile connectivity and lower likelihood to take various privacy-protective measures online. When low-income adults rely on devices and apps that make them more vulnerable to surveillance, and they (wittingly or unwittingly) do not restrict access to the content they post online, they may be further exposed to forms of commercial data collection that can affect the way they are assessed in employment, education, and law enforcement contexts. (8)
Thus, we suggest that poor people are burdened many times over by data collection and privacy intrusion. Not only are the poor subject to more surveillance than other subpopulations, (9) and at higher stakes, but in addition, poor Americans' patterns of privacy-relevant behaviors and device use open them up to greater vulnerability. We demonstrate these behavioral patterns using original empirical data from a nationally representative survey and suggest that differences like these must be considered in privacy-protective policymaking and design decisions.
This Article proceeds as follows: Part I provides a historical overview of the ways in which the poor have been subject to uniquely far-reaching surveillance across many aspects of life, and how their experiences of harm may be impacted by evolving practices in big-data-driven decision making. In using the term "poor" to signify a condition of economic deprivation, this Article recognizes that low-income people in America are a diverse and multifaceted group and that each person has his or her own individualized narrative. (10) Despite this diversity, this Article highlights a shared reality for many poor people, which is heightened vulnerability to online surveillance and associated adverse outcomes.
Part II presents new empirical findings from a nationally representative survey to highlight various technology-related behaviors and concerns that suggest low-status Internet users may be especially vulnerable to surveillance and networked privacy-related harms. By providing empirical data that demonstrates the increased vulnerability of low-income Internet users to privacy violations, we identify specific patterns of access and behavior that may help inform policy and technology design decisions. (11)
In Part III, we show why and how this matters through a legal examination of several timely case studies that demonstrate how online activity, and the emerging use of social media data in particular, might have detrimental impacts on the poor when used in high-stakes decision-making systems. This Part explains why current legal frameworks fail to shield the poor from negative outcomes.
Finally, in Part IV, we assess major proposals for protecting personal data through the lens of class vulnerability. In other words, we evaluate how these proposals might impact poor people. We agree with other scholars that additional technical and non-technical reforms are needed to address the risks associated with the use of social media data. As policymakers consider reforms, we urge greater attention to how reforms may differentially impact low-income communities.
THE INTERSECTION OF PRIVACY AND POVERTY
Brief History of Privacy-Related Vulnerabilities and Surveillance of the Poor
Historically, the poor have had far less control over the privacy of their homes, bodies, and decisions than their more affluent counterparts. (12) In Colonial America, most towns had an "overseer of the poor" who tracked poor people and either chased them out of town or auctioned them off for free labor. (13) By 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." (14) Even as anti-poverty policy became more benevolent in the late 1800s, the scientific charity movement relied on "friendly visitors" to investigate the homes of the poor and exhort them to higher morals. (15) For over three centuries, surveillance in various forms has served the political purposes of "containment of alleged social contagion, evaluation of moral suitability for inclusion in public life and its benefits, and suppression of working people's resistance and collective power." (16)
The New Deal created the modern welfare state and continued this history of surveillance of the "undeserving poor" (that is, able-bodied adults who were considered capable of work). (17) In administering welfare, states devised a variety of discretionary surveillance tactics--such as midnight raids on welfare recipients' homes and moral fitness tests--designed to reduce the welfare rolls and push poor women, mostly of color, into the low-wage labor force. (18) Today, states subject single mothers who draw public assistance to drug tests, DNA testing of children, fingerprinting, extreme verification requirements, and intrusive questioning about intimate relationships. (19) Some scholars and judges have argued that higher-income Americans would object if the government treated them similarly in exchange for the valuable governmental benefits they receive, such as mortgage deductions, school loans, and child care tax credits. (20) As Justice Douglas stated in his dissent to the Supreme Court's upholding of welfare home visits, "[n]o such sums are spent policing the government subsidies granted to farmers, airlines, steamship companies, and junk mail dealers, to name but a few." (21)
The structure of the current welfare system aims to put poor women to work. (22) Yet the low-wage workplace, where one-third of workers toil, (23) is no escape from surveillance. Employers today log computer key strokes, listen to telephone calls, review emails and Internet usage, conduct drug tests, employ mystery shoppers, watch closed-circuit television, and require psychometric and "honesty" tests as conditions of employment. (24) Employers increasingly track employee movements through GPS or radio frequency devices, which "create new streams of data about where employees are during the workday, what they are doing, how long their tasks take, and whether they comply with employment rules." (25) These sorts of tools seem to have found broad use in low-wage workplaces in particular, (26) and may be purposefully overt (rather than invisible) in order to let workers know they are being watched and to control their behavior. Other forms of surveillance are more covert; the objects of surveillance are not conscious that they are being observed. These behavioral control mechanisms can take many forms--at their most extreme, they include the use of facial recognition technology to ensure employees are smiling enough and audio...