Disobedience, Asceticism, and Disparity

I am grateful to Concurring Opinions for the invitation to participate in this symposium on Bernard Harcourt’s elegant and timely book, Exposed.  My comments here repeat and elaborate some of the remarks I offered at a Columbia faculty workshop on the book earlier this year.

I want to hone in here on two aspects of Exposed. The first continues the #ApplevFBI conversation that Frank Pasquale’s post has started in this symposium. The second takes up the role of individual discipline against desire, where I associate myself with the skepticism that David PozenDaniel Solove, and Ann Bartow express about disobedience as a form of reform online.

Public-Private Collaborations in Surveillance

The most troubling feature of the surveillance state, according Exposed, is the way in which current governmental intelligence agencies have forcibly deputized information service providers under cover of law.  Statutes like the Foreign Intelligence Surveillance Act, the Patriot Act, and the Electronic Communications Privacy Act have made federal and state surveillance far reaching; under these authorities, online transactions and conduct that many of us have long presumed are insulated from public view are now available for use and abuse by powerful public and private actors.

Of course, government-mandated public-private collaborations in national security and law enforcement are not novel.  The recent high-profile contests between the Department of Justice and Apple over the San Bernadino terrorist’s iPhone and in another case arising out of Brooklyn, are just the most recent episodes in the longstanding saga over whether and how much governments can commandeer private firms in the name of national security or law enforcement.

As Exposed suggests, there are good reasons to think that the more recent disputes involving mobile devices are different.  Yesteryear’s cases involved technologies that are simply not as powerful as iPhones and smartphones generally.  Of course, smartphones of today afford users easy access to an ostensibly unlimited number of resources.  They also are deeply embedded in our daily routines.

On the other hand, all of these great new affordances also make smartphones terrific repositories of and gateways to users’ personal information.  Apple knows this, of course.  That is why it is leveraging its deep-pockets and strong brand loyalty to invest in even more powerful encryption protocols and technologies for the iOS8 that will make today’s disputes moot.

But Apple’s stake in all of this is really just secondary.  The core question is how far the public-private collaboration in surveillance that Exposed identifies can go.  It is a pressing enough matter that a stunning array of who’s who in networked information technology has filed briefs and, in the process, projected this run-of-the-mill pretrial procedure into a cause célèbre for national security proponents and civil libertarians alike.

Discipline Against Desire: Not for Everyone

Exposed paints a picture in which we – most users – are complicit in perpetuating the whole arrangement.  The remedy for this failing is not so much a matter of reaching the right balance in law and policy, although that is certainly part of the fix.  The real challenge, Exposed argues, is to have users reject the impulse to so willingly give in.  Reform requires a new kind of personal discipline.  Consider the last sentences of the book:

Revolutionaries often forget, or do not like to recognize that one wants and makes revolution out of desire, not duty,” Deleuze and Guattari remind us in Anti-Oedipus.  What a cruel reminder, given that it is precisely our desires and passions that have enslaved us, exposed us, and ensnared us in this digital shell as hard as steel.  What a painful paradox.  What a daunting prospect.  That, I take it, is our greatest challenge today.

In some regards, it can’t be wrong that widespread resistance to the networked world will deliver us from the current state of affairs.  But one must wonder at the feasibility of this kind of grassroots reform, since, all substantive policy reform (in, for example climate change policy, immigration reform, policing) requires some degree of political will.

Defiance here may also be impossible, since, even in Exposed’s own account, users generally have no choice but to be connected. This is to say nothing of the communities across the U.S. and around the world that are desperate for networked connections.  Everything from political organizing, the provisioning of healthcare, and ordering a taxi requires a live and reliable networked connection.  Defiance is unresponsive to this fact.  At worst, it would only engender its own problems, not the least of which would be the perpetuation of disparity between networked elites (including those who have helped to engineer our information ecosystem) and the underserved (including communities who are lucky if they have a stripped down version of Facebook).

Exposed concedes that the latter – those “on the other side of the divide” – do not figure in its analysis.  But perhaps they should, particularly since low income people, blacks, and Latinos are disproportionately likelier to access the Internet through a mobile device than a PC.  This is significant if mobile devices expose users to far more invasive forms of surveillance, like law enforcement’s use of devices that mimic cell tower signaling to capture phone data.  In any case, what are we to do with the new programs that the FCC and others have developed very recently to expand public subsidies and other redistributive broadband efforts that are meant to improve the quality of online connections for the underserved today?  Should those go too?  How far should disobedience go without worsening inequality in access?

Exposed aims in the end to trigger a change of heart; it wants to cure users’ relative indiscipline as much as (if not more than) reform the incentives that drive firms and service providers to traffic in users’ personal information.  As such, it is above all a call to a kind of Thoreau-inspired quasi-religious asceticism against desire.  On the one hand, this may be soft stuff compared to the vast political economy and tens of billions of dollars that app developers stand to reap by making every click and swipe as viscerally pleasurable as possible.  On the other hand, if enough of us can muster the will to stay offline or at least constrain the information we are willing to volunteer away (say, on Buy Nothing Day, after Thanskgiving), we might begin to see positive change.  Until then, I will not be the one to tell those “on the other side of the divide” to disobey or stay away, for fear of what they’d be missing.  At a minimum, there are too many examples in just the past couple of years in the U.S. to suggest that online engagement might actually fuel offline activism against racially discriminatory policing.

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