Saved by Pervasive Surveillance

At 26 seconds into this video, a policeman appears to tackle a bicyclist without provocation. . . . and guess who was arrested after the incident?

Yes, you guessed it, the bicyclist. If the moment hadn’t been caught on tape, it’s quite possible the victim here would be facing criminal charges, and the policeman in question could be plotting another assault.

More prosaically on the transportation front, car insurance firms are now offering big discounts to drivers who install technological devices that monitor driving moment-by-moment.

I predict that the car monitoring technology will gradually become an industry standard for insurers–once a critical mass of drivers adopts it, the “bonus” for installing it will quickly morph into a penalty for failure to do so (just as I’ve chronicled that development for other technologies in this paper). Lior Strahilevitz has given some good policy arguments for adopting a parallel (but P2P) surveillance system for drivers, and my sense is that they apply just as well here. Jonathan Zittrain warns us that “FBI can secretly eavesdrop on any automobile with [a similar] OnStar navigation system by obtaining a judge’s order and ensuring that the surveillance does not otherwise disrupt the system’s functioning,” but I don’t know if that concern is enough to cause me to worry here. I care about privacy, but if there’s any way we can get some of the maniacs on the Garden State parkway to slow down, I think I’m for it.

The bicyclist-bashing seems like an even better case for pervasively distributed surveillance–or at least for David Brin’s admonition that we must always try to “watch the watchers.” Policing, like driving, may provide a special case for pervasive surveillance, despite worries like Zittrain’s over the cultural consequences of pervasive surveillance:

The summed outrage of many unrelated people viewing a disembodied video may be disproportionate to whatever social norm or law is violated within that video. Lives can be ruined after momentary wrongs, even if merely misdemeanors. [Just as] too many road signs and driving rules change people into automatons, causing them to trade in common sense and judgment for mere hewing to exactly what the rules provide, no more and no less[,] . . . too much scrutiny can also turn us into automatons. Teacher behavior in a classroom, for example, is largely a matter of standards and norms rather than rules and laws, but the presence of scrutiny, should anything unusual happen, can halt desirable pedagogical risks if there is a chance those risks could be taken out of context, misconstrued, or become the subject of pillory by those with perfect hindsight. . . .

In this hyperscrutinized reality, people may moderate themselves instead of expressing their true opinions. To be sure, people have always balanced between public and private expression. As Mark Twain observed: “We are discreet sheep; we wait to see how the drove is going, and then go with the drove. We have two opinions: one private, which we are afraid to express; and another one—the one we use—which we force ourselves to wear to please Mrs. Grundy, until habit makes us comfortable in it, and the custom of defending it presently makes us love it, adore it, and forget how pitifully we came by it. Look at it in politics.”

Today we are all becoming politicians. People in power, whether at parliamentary debates or press conferences, have learned to stick to carefully planned talking points, accepting the drawbacks of appearing stilted and saying little of substance in exchange for the benefits of predictability and stability. Ubiquitous sensors threaten to push everyone toward treating each public encounter as if it were a press conference, creating fewer spaces in which citizens can express their private selves.

As Dan Solove does, Zittrain focuses on expressive realms where distributed watching can tamp down originality and spontaneity. But after the bicycle case (and similar incidents), the value of surveillance of police is clearly demonstrable. The key question is whether this salutary kind of “watching the watchers” can be accomplished without unduly impinging on the expressive realms that Zittrain and Solove describe.

PS: The bicyclist in question was part of a group called Critical Mass, which has clashed with the NYPD in the past. Law & order types in particular will probably find the police’s criticisms of the group compelling–it organizes “spontaneous gatherings” to avoid regulations of protests, and has been accused of slowing down traffic (and emergency vehicles) during its bike rides. (It was also treated quite harshly for its protests at the Republican National Convention.) But however much one might dislike the group, the treatment of the bicyclist here appears utterly indefensible.

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