In a previous post, I suggested that the concept of privacy is going to prove inadequate as a protection against big data. This is the case for structural reasons: the concept of privacy is designed to protect information (generally, either information that is thought to be inherently intimate, or in the sense of control over the dissemination of information), whereas big data operates at what one might call a sub-information level: it siphons up enormous amounts of data, which becomes meaningful information only after it is analyzed in the context of vast amounts of other data. As a result, big data knows everything about us, even though we have neither consented nor not-consented to the release of the information that condemns us.
Today I want to leave that aside for the moment, and develop some background by way of a Foucauldian reading of Judge Leon’s recent decision issuing a preliminary injunction against the NSA’s collection of vast amounts of telephone metadata on American citizens. In subsequent posts, I will offer a reading of Judge Pauley’s decision upholding the NSA program and an earlier Supreme Court decision that gets at the issue before returning to the question of privacy. Although the analysis here is based on court cases and government programs, the intention is ultimately to make a more general point.
Foucault’s discussion of panopticism provides one of our most readily available strategies for discussing surveillance. According to Foucault, panopticism operated on a regime of asymmetrical and constant visibility. As we learn that we are under constant surveillance, we come to adjust our behavior accordingly, and become increasingly compliant with the desires of power. Foucault shows how panopticism develops simultaneously in several places, with a lot of sharing of technique, with the result that we shouldn’t be surprised that “prisons resemble factories, schools, barracks, hospitals, which all resemble prisons” (Discipline and Punish,227). Although panoptic techniques generalized, Foucault also thought of panopticism as modular in the sense that the factory and the prison represented disconnected systems of power. Today, the question posed by programs like the NSA’s is what happens when these disconnected systems become integrated? Does the extension and unification of the space of surveillance also signify an intensification of the surveillance regime, such that it has become something other than panopticism as Foucault understood it?
Deleuze thought it would – indeed, he thought that this moment had already been reached, as he explained in his 1990 “Postscript on Control Societies.” Similarly, in a 2000 article, Haggerty and Ericson argued that panopticism had morphed into a “surveillant assemblage,” best understood in rhizomatic, Deleuzian terms. The chief interest of Judge Leon‘s opinion, it seems to me, is that he understands precisely this to be the question. Let me explain, by way of a few points about the decision.
(1) For procedural reasons, Judge Leon does not reach the question of whether the NSA violated statutory law. He thinks they probably did, but the analysis is confined to the constitutional question of whether the NSA program violates the Fourth Amendment, on the assumption that it does exactly what the government says it does.
(2) 1979 was a long time ago: To reach the conclusion that the NSA program violates the Fourth Amendment, Judge Leon has to distinguish his ruling from a 1979 Supreme Court case (Smith v. Maryland), which held that there was no expectation of privacy in telephone metadata. To achieve this feat, he argues that wireless has fundamentally changed the nature of our relationship with phones by making them ubiquitous. What should one make of this analysis? Orin Kerr, who is one of the country’s foremost Fourth Amendment scholars (and who agrees with the result), thinks not so much:
I find this argument deeply unpersuasive. Most obviously, why does it matter that today’s phones are combined in a single device with other functions? The NSA’s program is not collecting information about the use of those other functions. It is only collecting the same information that was collected in Smith v. Maryland: Information about numbers dialed using the device’s telephone functionality and when the call was made. (In FN57, Judge Leon says that he is unsure of whether the program collects location information, but he says nothing in his opinion depends on that question.) Although it’s true that we have different relationships today to items we label “phones” than we did to items labeled “phones” in 1979, that’s because of functions unrelated to the calling feature of those items
Judge Leon’s argument certainly can seem ad hoc, but on the other hand, wireless technology has changed our relation to the calling features of our phones. If nothing else, we talk a lot more on them than we used to. It’s there, on our person, all the time, and so we are always “waiting by the phone.” And, long distance is free. In 1979, you had to be at home – tethered to a cord; you couldn’t even wander around the house – or at a pay phone. At this point, we don’t generally miss a call because we aren’t at home, and lots of people don’t even have landlines. To the extent that the opinion points to this change, it’s making an important point. For better or worse, this sense of constant availability has become important to our identities. If it's plausible to say that the consciousness of a hypothetical Alzheimer's patient includes the notebook where he jots down things he wants to remember, then surely something analogous could be said about our current integration with wireless.
Second, and departing from the narrow legal question, the near universal adoption of cellphones has fairly wide-ranging phenomenological effects on how we interpret the world (consider GPS: we “know” where we are at all times!), and on our relationships with others (as the endless laments about how Facebook and texting have supposedly destroyed interpersonal relations attest). In that sense, the cellphone has deep implications for what Foucault would call our subjectification. That is, the sudden ubiquity of wireless and all its affordances (voice, texting, GPS, Facebook, Foursquare, Scrabble, etc.) precisely marks a moment where the sheer quantity of our time with the phone makes a qualitative change in our subjectivity. The question is whether this intensification of communication technology is sufficient to overwhelm privacy. Judge Leon says it is not, but that is only because…
(3) Judge Leon neutralizes the biopolitical question. The government justifies all of this surveillance with the biopolitical objective of security. Does Judge Leon think security is important? Absolutely! As he writes, the government’s stated objective of identifying terrorists and stopping terrorism is something that “everyone, including this Court, agrees is of the highest order of magnitude” (59, internal citation omitted). Having established the importance of security, however, he immediately pulls the rug out from under the government’s position. On his reading, there is no evidence that all of this surveillance has actually prevented a terrorist attack, and the “Government’s interest is a bit more nuanced” (60); the program mainly has allowed the government to have reached the same result faster and therefore more efficiently. And as everybody who has read Rawls knows, efficiency never trumps fundamental rights. The move thus takes security completely off the table: the government asks, in essence, to be judged on its ability to achieve a biopolitical objective. Judge Leon grants that request, finds that the NSA apparatus fails to deliver, and is thereby enabled to apply a juridical framework, under which it fails because it conducts searches first, and then establishes the “quantum of individualized suspicion” (57) that should have preceded a search, not been the product of it.
In sum, Judge Leon’s finding that the NSA programs violate the Fourth Amendment hinges upon two primary moves: (1) finding that cellphones present the site of a potentially tremendous intensification of surveillant power, such that comparisons to previous law are no longer apt, but that (2) this intensification can nonetheless be read as a question of juridical rights, because the biopolitical imperatives that would conceivably justify such intensification are neutralized by its failure to deliver on its own objective of increased security. The detached mechanism of efficiency is thus unable to justify itself within a rights-based framework.
I will look at Judge Pauley‘s ruling next time.