The Fragility of Desire

In his excellent new book Exposed, Harcourt’s analysis of the role of desire in what he calls the “expository society” of the digital age is seductive. We are not characters in Orwell’s 1984, or prisoners of Bentham’s Panopticon, but rather are enthusiastic participants in a “mirrored glass pavilion” that is addictive and mesmerizing. Harcourt offers a detailed picture of this pavilion and also shows us the seamy side of our addiction to it. Recovery from this addiction, he argues, requires acts of disobedience but there lies the great dilemma and paradox of our age: revolution requires desire, not duty, but our desires are what have ensnared us.

I think that this is both a welcome contribution as well as a misleading diagnosis.

There have been many critiques of consent-based privacy regimes as enabling, rather than protecting, privacy. The underlying tenor of many of these critiques is that consent fails as a regulatory tool because it is too difficult to make it truly informed consent. Harcourt’s emphasis on desire shows why there is a deeper problem than this, that our participation in the platforms that surveil us is rooted in something deeper than misinformed choice. And this makes the “what to do?” question all the more difficult to answer. Even for those of us who see a stronger role for law than Harcourt outlines in this book (I agree with Ann Bartow’s comments on this) should pause here. Canada, for example, has strong private sector data protections laws with oversight from excellent provincial and federal privacy commissioners. And yet these laws are heavily consent-based. Such laws are able to shift practices to a stronger emphasis on things like opt-in consent, but Harcourt leaves us with a disquieting sense that this might just be just an example of a Pyrrhic victory, legitimizing surveillance through our attempts to regulate it because we still have not grappled with the more basic problem of the seduction of the mirrored glass pavilion.

The problem with Harcourt’s position is that, in exposing this aspect of the digital age in order to complicate our standard surveillance tropes, he risks ignoring other sources of complexity that are also important for both diagnosing the problem and outlining a path forward.

Desire is not always the reason that people participate in new technologies. As Ann Bartow and Olivier Sylvain point out, people do not always have a choice about their participation in the technologies that track us. The digital age is not an amusement park we can choose to go to or to boycott, but deeply integrated into our daily practices and needs, including the ways in which we work, bank, and access government services.

But even when we do actively choose to use these tools, it is not clear that desire captures the why of all such choices. If we willingly enter Harcourt’s mirrored glass pavilion, it is sometimes because of some of its very useful properties — the space- and time-bending nature of information technology. For example, Google calendar is incredibly convenient because multiple people can access shared calendars from multiple devices in multiple locations at different times making the coordination of calendars incredibly easy. This is not digital lust, but digital convenience.

These space- and time-bending properties of information technology are important for understanding the contours of the public/private nexus of surveillance that so characterizes our age. Harcourt does an excellent job at pointing out some of the salient features of this nexus, describing a “tentacular oligarchy” where private and public institutions are bound together in state-like “knots of power,” with individuals passing back and forth between these institutions. But what is strange in Harcourt’s account is that this tentacular oligarchy still appears to be bounded by the political borders of the US. It is within those borders that the state and the private sector have collapsed together.

What this account misses is the fact that information technology has helped to unleash a global private sector that is not bounded by state borders. In this emerging global private sector large multinational corporations often operate as “metanationals” or stateless entities. The commercial logic of information is that it should cross political borders with ease and be stored wherever it makes the most economic sense.

Consider some of the rhetoric surrounding the e-commerce chapter of the recent TPP agreement. The Office of the US Trade Representative indicates that one of its objectives is to keep the Internet “free and open” which it has pursued through rules that favour cross-border data flows and prevent data localization. It is easy to see how this idea of “free” might be confused with political freedom, for an activist in an oppressive regime is better off in exercising freedom of speech when that speech can cross political borders or the details of their communications can be stored in a location that is free of the reach of their state. A similar rationale has been offered by some in the current Apple encryption debate — encryption protects American business people communicating within China and we can see why that is important.

But this idea of freedom is the freedom of a participant in a global private sector with weak state control; freedom from the state control of oppressive regimes also involves freedom from the state protection of democratic regimes.

If metanationals pursue a state-free agenda, the state pursues an agenda of rights-protectionism. By rights protectionism I mean the claim that states do, and should, protect the constitutional rights of their own citizens and residents but not others. Consider, for example, a Canadian citizen who resides in Canada and uses US cloud computing. That person could be communicating entirely with other Canadians in other Canadian cities and yet have all of their data stored in the US-based cloud. If the US authorities wanted access to that data, the US constitution would not apply to regulate that access in a rights-protecting manner because the Canadian is a non-US person.

Many see result as flowing from the logic of the Verdugo-Urquidez case. Yet that case concerned a search that occurred in a foreign territory (Mexico), rather than within the US, where the law of that territory continued to apply. The Canadian constitution does not apply to acts of officials within the US. The data at issue falls into a constitutional black hole where no constitution applies (and maybe even international human rights black hole according to some US interpretations of extraterritorial obligations). States can then collect information within this black hole free of the usual liberal-democratic constraints and share it with other allies, a situation Snowden documented within the EU and likened to a “European bazaar” of surveillance.

Rights protectionism is not rights protection when information freely crosses political boundaries and state power piggybacks on top of this crossing and exploits it.

This is not a tentacular oligarchy operating within the boundaries of one state, but a series of global alliances – between allied states and between states and metanationals who exert state-like power — exploiting the weaknesses of state-bound law.

We are not in this situation simply because of a penchant for selfies. But to understand the full picture we do need to look beyond “ourselves” and get the global picture in view. We need to understand the ways in which our legal models fail to address these new realities and even help to mask and legitimize the problems of the digital age through tools and rhetoric that are no longer suitable.

Lisa Austin is an Associate Professor at the University of Toronto Faculty of Law.

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