Does Mass Surveillance by Governments matter?

Introduction

‘Mass surveillance’ can be defined as the monitoring by pervasive technologies of a substantial proportion of a population, typically by government agencies (Electronic Frontier Foundation, 2014), but also by corporations and institutions (Campbell and Carlson, 2002), as well as ‘cyber-criminals’ (Provos, Rajab, and Mavrommatis, 2009). Mass surveillance by governments is a contentious issue (BBC, 2014) that has grown in significance in recent decades with the rapid emergence of the ubiquitous Web, and developments in regulation and governance (Lyon, 2006:3).

This essay explores mass surveillance, looking at the benefits, (e.g. the detection of illegal activity) and limitations, (e.g. privacy concerns (Warr, 2013)), particularly in relation to the Web. An interdisciplinary approach has been chosen due to the contentious nature of the area, in that the conception of surveillance differs depending on disciplines and integration allows these approaches to develop new insights and explanations (Repko, 2008). Law is chosen to provide an overview of what surveillance techniques are protected by legislation. History, to provide an historical context to current attitudes to, and regulation of, the phenomenon. Finally, criminology is chosen due to its contrast particularly with law and its focus upon the importance of surveillance as a construction.

Law

To function effectively, a government’s laws must be seen to be relevant to the citizenry; thus laws enacted must be seen as even-handed in balancing citizen and state needs (Reidenburg, 2013). In democracies, law may be seen as enshrining the social contract between the individual and their elected government (Stigler, 1974). Law draws precepts about rights from its sub-discipline of jurisprudence. But, in a jurisdiction with an unwritten constitution (e.g. the UK), such precepts are subject to uncertainty, being effectively replaced by case law.

In the UK legislation permits mass surveillance for the purposes of air traffic management (Transport Act, 2000) or maritime search and rescue (Marine Safety Act, 2003), without impinging significantly on the rights of the citizen. More problematic are areas where personal liberty rather than general safety are at issue, such as the interception of personal telecommunications, including Web traffic (House of Commons, 2008). Given revelations about the apparent collusion of the NSA and GCHQ to circumvent supposed legal safeguards (Borger, 2013), this concern is real even amongst politicians (Deputy Prime Minister’s Office, 2014).

Despite the presumed clarity in the framing of laws, emergent technology and social changes have thrown up practical enforcement problems. The introduction of the Human Rights Act (1998) created problems insofar that the police were unable to do anything intrusive (i.e. surveillance) unless there was legislation permitting the action (O’Brien 2009: 121). This led to counter-balancing legislation in the Regulation of Investigatory Powers Act (2000), though evolution in mobile telecoms and the Web continue to blur the meaning of laws envisaged as unambiguous when drafted, and the UK now has eight pieces of primary legislation trying to address the issue (Information Commissioners Office, 2014).

This problem is not unique to the UK, as other countries struggle with now uncertain notions of a citizen’s privacy in the context of the Web, for instance Germany (Schmidl, 2012), and for trans-national bodies like the OECD (2011).

History

Surveillance has been carried out by governments throughout history and is an important field in the academic study of the subject. Post Enlightenment, methods have developed from face-to-face, paper-based modes to increasingly systematic, routine, bureaucratised processes, with the late twentieth century ushering in increasingly sophisticated computer-based pervasive monitoring systems (Dandeker, 1990).

Social historians exploring the emergence of technologies in the recent past provide contextualisation of mass surveillance, suggesting a growing desire on the part of governments to exert stricter social control over citizens. Genosko and Thompson (2006:123) argue that critically evaluating primary sources from the “pre-computerised near past” provide opportunities for developing “insights into...the development of current social environments [and] lasting social threads of surveillance technologies”. For example, their analysis of data surveillance carried out by the Liquor Control Board of Ontario between 1927 and 1962 demonstrates the effectiveness of combining bureaucratic zeal with punch-card technology to enforce laws aimed at controlling racial minorities (ibid.:123-127).

John Torpey’s evaluation of the development of passports from revolutionary France to the late twentieth century provides a convincing narrative of the appropriation of the regulation of the movement of people by the modern state from other competing factions (e.g. churches and commercial interests). He argues that regulating passports enabled states to institutionalise the idea of the “nation-state” as a potentially uniform ethnocultural unit which has facilitated the enhanced surveillance, and containment of “undesirable elements” (Torpey, 2000:7).

Perhaps the most significant, and controversial, reading of the past in this context is Foucault’s work on the interpretation of the ‘panopticon’ (Foucault, 1975). This concept for a new design of prison was proposed by the social reformer, Jeremy Bentham, as a means of facilitating the continuous observation of prisoners, and neatly expresses Enlightenment ideas concerning the privileging of vision as a means to order and control (Lyon, 2006). Foucault highlighted the role of the utilitarian impetus of modern bureaucracies that have eschewed previous coercive and brutal methods of control in favour of more remote and individuated methods that emphasise and encourage self discipline in the controlled population, be they prisoners or citizens (ibid:3).

Criminology

Criminology studies the causes, control and prevention of deviant behaviour within society (Hale et al, 2005). Criminology contains positivist criminology, which assumes that crime is a fact, and social-constructionist criminology, which argues that deviancy is divergent upon cultural factors (Hale et al, 2005). A social constructionist approach is taken as this is more appropriate regarding the necessity of surveillance, which is not clear-cut but debateable.

Panopticism is applied throughout criminology. Regarding the Web, Ericson and Haggerty (2006) argue that visible data has lead to a proliferation of ‘dataveillance’, notably by governments. This describes the monitoring of informational flows by a variety of systems, with institutions gaining power through their ability to “harness the surveillance efforts of otherwise disparate … organisations” (Ericson and Haggerty, 2006:5). Ericson and Haggerty (2006) warn of unintended consequences of such techniques; for example regarding privacy, legal claims can result in making the powerful more opaque whilst they make others more transparent, and data errors can result in disastrous consequences e.g. algorithms scrutinising innocent people in automated systems.

A more extreme scenario of surveillance can be seen in Davis’ (2005) cautionary vision of urban control, which uses the exemplar of the film ‘Blade Runner’ to describe the militarisation of Los Angeles. Mass surveillance provides protective visibility for those who can afford it whilst social control districts are conversely uncontrolled places where the poor are forced to cooperate with criminals (Davis, 2005). For Davis (2005) the city becomes an idealisation; an artificial simulation based on control, observation and repression.

Similarly, Shearing and Stenning (2009) argue that Disney World exemplifies modern private corporate policing. Here, multiple instructions, physical barriers and surveillance by employees and CCTV provide control embedded within alternative functions, their presence subsequently unnoticed (Shearing and Stenning, 2009). Like Davis’ (2005) vision, citizens cooperate; however whilst Davis paints an Orwellian picture of overt state control forcing citizens to obey, Shearing and Stenning (2009) argue that control is subtle, consensual and non-coercive, and further it is diffused across multiple, private groups.

Integration

Law is useful in taking a pragmatic view, looking at rights as legally defined and thus an important first step in defining how governments may use surveillance. However, law is limited in two ways. Firstly by only assessing the status quo it does not evaluate the significance these laws might have or have had; secondly, it does not evaluate how ambiguities within these laws affects citizens.

History is therefore beneficial by providing an evidence-based interpretation of how mass surveillance has developed over time. Socio-cultural approaches take in a wide range of concerns, by problematizing issues they develop theories that evaluate the importance of surveillance and translate this to address present concerns.

Criminology is similar to history; both try to evaluate the effects of surveillance on citizens (as can be seen via panopticism). Criminology is helpful by exploring the limitations of surveillance, considering both whether it is the response of government or a wider concern (e.g. privatisation). However criminology is potentially limited through ignoring the benefits of surveillance.

To integrate, a socio-cultural approach to history is useful by showing how the impetus to develop ever more efficient means of mass surveillance has its roots in the pre-computer past, and combined with law this presents a solid evidential base for what mass surveillance currently does, and why it may have been enforced. Taking a more flexible interpretive stance, history and criminology mitigate against the limitations of legal interpretation, showing why it matters to a wider group of individuals. This combination gives a stronger result as one neither only understands what is there, nor solely argues why it perhaps should not be but together provides an evidenced conclusion that mass surveillance is a contentious issue and therefore does matter.

 

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