The New Privacy
Author(s): Paul M. Schwartz
Abstract: In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an “age of governmental largess,” a new property right in governmental benefits had to be recognized. He called this form of property the “new property.” In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. “Overseers of the Poor: Surveillance, Resistance and the Limits of Privacy,” by John Gilliom, an associate professor of political science at Ohio State University, demonstrates both the tenuousness of welfare rights today and the costs that this system imposes on individual autonomy.
In “Overseers of the Poor,” Gilliom uses his case study of welfare recipients as the occasion for an attack on classic notions of privacy rights. Gilliom finds that welfare clients do not engage in “privacy talk” – indeed, he finds the concept to be devoid of value for the welfare recipients. Here, another comparison can be made with Reich’s new property. Reich explicitly tied his idea of a new property right in government entitlements to privacy. He felt that the new property was needed to protect privacy, and, in particular, an individual’s autonomy. Reich’s notion of privacy reaches back to a classic concept of privacy, one that we term the “old privacy.” It is precisely this classic idea that Gilliom finds welfare recipients to have rejected. Theoretical work inside and outside of the legal academy has pointed, however, to a “new privacy.” The new privacy is centered around Fair Information Practices (FIPs) and is intended to prevent the threats to autonomy.
This Review begins by examining Gilliom’s methodology and findings. It credits the insights of his look at the inner world of welfare recipients, but finds that he appears to ignore the need for income limits on aid recipients and the concomitant need for at least some personal information to enforce these limits. It also criticizes his failure to explore an interaction of an “ethics of care” among welfare recipients with possible use of retooled privacy rights or interests. In the second part of this Review, we consider the extent to which theoretical work inside and outside of the legal academy points to a new privacy and discuss how Gilliom’s empirical research provides support for that scholarship. We will also evaluate the extent to which the new privacy, centered on FIPs, can prevent the threats to personal autonomy so poignantly identified by Gilliom.
Keywords: individual autonomy, government benefits, privacy rights, Fair Information Practices