EII. Eye Infinitum

“Typically we are told, often and passionately, that Big Brother may abuse these new powers [of technological surveillance],” David Brin writes in his essay, “Three Cheers for the Surveillance Society.” We are warned, he continues, that “our privacy and rights will be violated by some other group.” He goes on rather airily to list such “groups” as including, possibly, say, “commercial, aristocratic, bureaucratic, intellectual, foreign, criminal or technological elite[s].” To this he then appends a deflationary parenthetical aside: “(Pick your favorite bogeyman.)”

Before we have time to dwell on whether or not Brin really wants to imply here that such elites are entirely imaginary or possibly perfectly harmless after all, he has already moved on to make still more striking claims. In their panic about the suddenly ubiquitous tools and techniques of surveillance, privacy advocates, he complains, are apt to make two profoundly misguided recommendations at once. First, “[b]ecause one or more… centers of power might use the new tools to see better, we’re told that we should all be very afraid.” And second, “our only hope may be to squelch or fiercely control the onslaught of change.” Brin then dourly summarizes this “typical” argument, against which he will go on to array his own contrary view: “For the sake of safety and liberty, we are offered one prescription: We must limit the power of others to see.” Of course, Brin will propose instead that we must resist the temptation to limit this curiously neutral exercise of “seeing” and ensure instead that all are likewise empowered to “see.”

While it is true of course that privacy advocates do worry about the uses to which new surveillance tools might be put (and elsewhere in his writing Brin seems quite as anxious about these possible abuses as any other civil libertarian would be, and so it isn’t completely clear why his formulations here seem so insistently complacent), but it is in any case hardly typical for privacy advocacy to express this concern as a fear of any greater clarity in the vision of the powerful. Far from worrying that surveillance will enable the powerful to “see better,” as Brin idiosyncratically puts the point, privacy advocates more generally fret that proliferating personal information gathered, organized, and distributed by new techniques of surveillance and media threatens to distort the ways in which we circulate as public figures. Privacy advocates and civil libertarians tend to worry about the ways in which these new tools and techniques will likely facilitate our exploitation by powerful interests by re-writing us in the impoverished but compelling image of administrative profiling, target marketing, stringent legalism, normative hygiene, parochial moralism, and so on.

It is altogether unclear to me why it would presumably be better to describe the effort to regulate certain threatening practices of surveillance as “limit[ing] the power of others to see” rather than, say, directing the gaze of the relatively more powerful to more helpful than harmful uses. Since there are infinitely many things to see in the world it certainly seems at least a bit hyperbolic to compare the effort to regulate or redirect the mischievous gaze of the powerful, as Brin somewhat stunningly does later in his essay, to “blinding the mighty.”

However, when Brin goes on to insist we resist the urge “to squelch or fiercely control the onslaught of change” for fear of worst outcomes, this is at least in part a useful repudiation of any blanket, reactive, and almost certainly hopeless (however understandable) program that would attempt to dis-invent or ban such technologies altogether. Sweeping bans of these technologies would most likely simply drive a too considerable portion of their development and distribution into a deeper and more pernicious secrecy and into the more exclusive use of the powerful and the unscrupulous, without proper regulation and oversight, hence exacerbating precisely the kinds of abuses the threat of which would inspire the desire for a ban in the first place.

But there seems to be in Brin’s formulation here a more worrisome hostility to the very notion of efficacious regulation of technological development altogether as well. In an interview conducted with Shane Peterson just prior to the publication of his essay for Salon.com, Brin rather forcefully consolidates this impression when he baldly claims that “we won’t stave off Big Brother” -– here, again, the libertarian conjuration of pernicious authority as always an oppressive and centralized State –- “by passing minor regulations of what the Justice Department is allowed to see or know.” By such “minor regulations,” he goes on to amplify that he means “bickering over minute details of search warrant policy, or when and how to wiretap.” In the shadow of the rhetoric of developmental inevitability such efforts can only seem a matter of trivial and ineffectual bickering, indeed, and he writes “[w]ith the new cameras, databases and other tools coming online, that whole path is futile.” Brin goes on to reiterate this point extraordinarily starkly: “Not one thing we do will reduce the growing power of elites to look at us.”

It is difficult to read this statement as anything but sheer hyperbole, since it is so manifestly true that legal penalties (in any case just one among the many forms of regulation available to us ) will always have at least some limited impact on conduct, but also because Brin himself seems to rely on the limited efficacy of such regulation to plausibly qualify what might otherwise appear a threateningly extreme advocacy of transparency to the cost of even the most negligible notions of personal privacy elsewhere in his text.

Let us return briefly to the conjuration of the ideal Two Cities with which Brin begins his account in The Transparent Society. The conspicuous force of Brin’s case relies, remember, on his immediate mobilization of a rather stark either/or. He takes for granted, and in fact repeatedly insists on this as an inevitability, that tools and techniques are emerging already that will soon enable the aggregation, circulation, and deployment of incomparably powerful, fine-grained, exhaustively descriptive, profoundly predictive personal profiles that cannot help but transform the everyday sense and significance of privacy, possibly entirely beyond recognition. This unprecedented transformation will be accomplished, and indeed is already underway, by means of a proliferation and convergence of ever cheaper, ever more powerful, ever more ubiquitous surveillance, information gathering, networked media, and modeling technologies. Given his view of this inevitability, Brin lodges his own hopes, and his own intervention, in what he sees as a key alternative between “either” a concentration of ubiquitous surveillance technologies in the hands of powerful elites, “or” of universal access to this ubiquitous surveillance. While the prospect of ubiquitous surveillance is likely to be distressing whatever form it takes, what matters most is to ensure that its potential for abuse be ameliorated by universal access and so general accountability.

But Brin goes on to qualify his sketch of the “transparent society,” of the more desirable and accountable kind of ubiquitous surveillance he champions, in ways that are hard to reconcile with the case he seems to be making otherwise. For example, quite early on in his book Brin curiously says of “city number two,” the Transparent City, the city of ubiquitous surveillance, universal access, and general accountability, “microcameras are banned from some indoor places…” The ellipses occur in the original here, a curious refusal of specificity in this moment. But he goes on: “microcameras are banned in some indoor places… but not from police headquarters!”

It is easy to imagine that even surveillance enthusiasts might want, with Brin, to keep “some indoor spaces,” presumably bathrooms, bedrooms, torture chambers, or what have you, “camera free” –- but it simply is not at all clear why his own premises would provide room for these exceptions. Or, more to the point, if it actually would be possible to provide for such exceptions through legal injunctions (his word here is “bans”), social norms, or the usual regulatory paraphernalia, then why doesn’t this altogether domesticate the presumably sweeping transformations demanded by “transparency” in the first place?

Brin very sensibly wants to reassure his nervous readership that surveillance will be “banned” from the bathroom, say, but there really is nothing in his argument to support such reassuring noises –- while there is every reason, from powerful and widespread voyeuristic fascination to a long mostly pernicious history of the policing of public sex practices in the name of moralism, hygiene, and such, to suggest, if anything, surveillance will of course insinuate itself in the bathroom before it finds its way to any number of other places in fact. With the evocation of “indoor spaces” insulated from the glare of otherwise ubiquitous surveillance, Brin manages at least figuratively, if not literally, to resecure the comforting space of the very privacy, the very withdrawal into interiority, he otherwise claims we must obliterate in the service of accountability.

Later in the book, Brin seemingly secures still more conventional privacy from the glare of his transparency: “Despite the central thesis of this book, that transparency is beneficial to all levels of society, we must surely protect the power of private individuals to do certain things under cover of feigned identities.” With this “surely,” Brin is mobilizing general intuitions, assumptions, and expectations about privacy, all of which he has quite dramatically called into question elsewhere in his text. But of just what can we be “sure” in this formulation, after all? Why is “transparency” treated as blandly and universally “beneficial” here? If this is an account that assumes a demarcation of society into “levels” why wouldn’t this sensitivity to a differential distribution of power imply a comparable distribution in the benefits and dangers of “transparency”? And why does Brin refuse specificity again in a moment when he would reassure his readers that “certain things” would be “protected” from publicity?

Brin’s account is one that consistently values accountability over secrecy, but it is his recognition that sometimes accountability itself requires such secrecy, as when anonymity protects a whistleblower from reprisals or pseudonymity protects critics from stigmatization, that impels him into making some necessary qualifications. Now, it is certainly welcome that these nuances find their way into Brin’s account, just as it is appealing that he devotes attention to the special suffering the deep demands of transparency might exact especially on the shy, the eccentric, the reformed, or the improvisatory. Still, it remains unclear to me how Brin actually accommodates these nuances within the terms of the recommendations he makes, or just why, in accommodating them, he is not conceding the efficacy of regulation that might overcome some of the conspicuous binds of the ubiquitous surveillance he otherwise describes as inevitable, and elude some of the special and alien exactions of the “transparency” he proposes as the solitary hurdle to tyrannical deployments of this inevitable ubiquitous surveillance.

“[I]n an environment of transparency,” writes Brin, “where officials and CEOs must reveal everything down to their tax returns and billing records, the average citizen’s freedom will not be enhanced by maintaining a private right to secrete, plot, and ultimately conspire against his or her neighbors.” I will pause to note the curiously prejudicial formulation here, which seems to presume that the relatively less powerful “average citizen” desires privacy primarily to “secrete,” “plot,” and “conspire,” as if there are no more legitimate enjoyments to be had from private life. Brin continues on to insist that such privacy “will not enhance the average person’s freedom for one simple reason: the rich and powerful are sure to be far, far better at exploiting that right than little people ever will be, any time, any place.”

That regulation is difficult or law susceptible to abuse is scarcely, however, on its own, reason to abandon either. Surely it would be absurd to hear someone seriously propose, for example, that those lucky enough to have prospered most from their participation in society should be exempt from the taxes others pay to maintain that society, just because the prosperous are best positioned to evade such taxes anyway by hiring slippery accountants and the like.

In any case, if it really is true that relatively more powerful people will always better exploit these technologies to their own ends than relatively less powerful people to theirs, it is very difficult to see just how any of the measures Brin proposes to facilitate the emergence of an informational regime of universal access over elite concentration could have any expectation of successful implementation either, let alone provide for the special protection of pockets of privacy that Brin offers in the way of reassurance against the grain of his general case for transparency.

And even if it were true that the emergence of ubiquitous surveillance is ultimately, over the longer term, exactly as inevitable as Brin proposes it is, and for all of the reasons that he proposes that this is the case, it could still be the function of even imperfectly effective regulation to frustrate pernicious forms that this “inevitable” development might take all the while encouraging more appealing forms -– disincentivizing information concentration while incentivizing more distributed surveillance practices, for example. While such practices can scarcely be expected or even hoped to eventuate in the universal access or benign transparency of the Brinian ideal, it might still be the case that such regulation could at least facilitate a sufficiently wider distribution of surveillance technologies and information resources to ameliorate some of the more conspicuous abuses that would likely arise from the emerging powers of surveillance uniquely available to the most powerful.

In his recent essay “The Panopticon Singularity,” Charles Stross worries that richly multiform contemporary conventions of regulation and law enforcement might collapse via mechanization into profoundly inhumane interpretations and practices, and that this development is especially worrisome in light of the sorts of emerging surveillance technologies that preoccupy Brin as well. A couple of the technologies that Stross discusses, which did not find their way into the more recent and comparable survey of such developments in Brin’s own update of The Transparent Society, his essay “Three Cheers for the Surveillance Society,” include gait analysis, or the unique “signature” associated with the idiosyncratic way in which each individual walks, a biometric marker more readily discernible technologically and less susceptible to change or disguise than facial recognition; and devices that exploit short wavelength radio waves which can be tuned to peer beneath solid surfaces like layers of clothing or drywall.

Stross points out that at present “legislators do not pass laws in the expectation that everybody who violates them will automatically be caught and punished.” Sometimes especially stringent penalties are mandated primarily to signal moral disapproval of certain conduct (often to enlist popular favor), or on the assumption that this will discourage a particular behavior. Further, “many old laws are retained despite widespread unpopularity, because a vocal minority support them.” In such cases, “old laws which may not match current social norms are retained because it is easier to ignore them than to repeal them.” Stross concludes that “[t]hese laws… highlight the fact that with a few exceptions (mostly major felonies) our legal systems were not designed with universal enforcement in mind.” However, the convergence of new surveillance technologies is likely to expose illegality and delinquency, so-called, to incomparably higher visibility while at once imposing incomparably more stringent and ubiquitous regimes of enforcement than have been possible hitherto.

Stross sketches the familiar slippery slope that haunts civil libertarians who spend much of their time contemplating emerging surveillance technologies. “Nobody… cracks a joke in the waiting line at airport security -– we’re all afraid of attracting the unwelcome attention of people in uniform with no sense of humor whatsoever. Now imagine the straightjacket policing of aviation security extended into every aspect of daily life, with unblinking and remorseless surveillance of everything you do and say.” In the past, we have largely been protected from the imposition of such relentless and pitiless nightmares of perfect scrutiny by the brute limits of human capacities for attention, and by the organizational difficulties of co-ordinating and administering human surveillance practices over time and at a distance. When Stross finally conjures up as the diabolic reductio of his slippery slope the science fictional figure of “enforcers [that] are machines, tireless and efficient and incapable of turning a blind eye,” the force of the point does not depend in fact on the literal arrival of robot armies. Stross is italicizing here the ways in which the traditional tradeoffs associated with practices of human intelligence gathering are transforming with the emergence of new augmentative technologies of surveillance and data aggregation and hence compelling us likewise to radically reassess the practical limits that have come to form our expectations of reasonable (even natural) privacy and the likely provocation of the energies of legal enforcement.

Mark Poster has pointed out that as traditional expectations of privacy defined by what long constituted the practical limits of surveillance no longer prevail “[i]t must become safe for people to be public about things that previously had been secluded to private arenas.” He offers up the example of attitudes to sexual orientation. “In the history of the gay movement, until recently and perhaps to some extent still today, there were serious risks… in coming out of the closet. Such minority life choices and life styles must become accepted politically.” Stross’ own example is similarly blunt: “[C]urrently it is illegal to smoke cannabis, but many people do so. [Soon] it will not only be illegal but impossible.”

Meanwhile, the demands of work ever more conspicuously disrupt the “personal time” of weekends and after-hours. They invade via e-mail, pages, text messages, and calls to cellphones secreted in cars, in pockets, in hotel rooms, on beachfronts, hiking trails, into the precincts of “personal space” and anything like a domestic sphere.

There is no question that conventional expectations of privacy will no longer provide quite the same protective cover, however fraught, for marginal lifeways vulnerable to popular stigmatization. Nor can it be counted on to help ameliorate to the extent it once did the stresses of moral contestation among peers in relatively democratic societies.

But do these new quandaries really demand the more sweeping relinquishment of privacy that Brin’s advocacy of transparency sometimes seems to recommend explicitly or to which he otherwise seems committed whatever his various qualifications to the contrary simply by the force of its entailments?

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