Category: Symposium (Exposed)

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The “We” That Haunts Our Digital Age

“Seen from this angle, the emphasis on what we must do as ethical selves, each and every one of us—us digital subjects, with our desires and our disobedience—may be precisely what is necessary for us to begin to think of ourselves as we. Yes, as that we that has been haunting this book since page one.”

                                                                           — Exposed: Desire and Disobedience in the Digital Age, p. 283.

In her brilliant post, Mary Ann Franks highlights the unequal exposure at the heart of our digital age and puts her finger on the most important sentence of Exposed: there is indeed a “we” that haunts this book, that haunts our digital age in fact, and it is precisely that “we” that we must keep at the very heart of our digital debates.

As Franks highlights and as David Pozen and Olivier Sylvain earlier suggested, the digital world is by no means an undifferentiated space. In Exposed, I underscore those differences. In the “The Mortification of the Self,” I underline how our digital world cuts deeply along lines of class and gender. In “The Steel Mesh,” I emphasize how our digital exposure is deeply differentiated by race and ethnicity. In “The Collapse of State, Economy, and Society,” I detail the labor, wealth, and disability effects. The NYPD social media unit does not simply target anyone, it targets minority suspects, especially “crew members…. They listen to the lyrical taunts of local rap artists, some affiliated with crews, and watch YouTube for clues to past trouble and future conflicts.” (Exposed, 243) The cameramen behind the CCTV’s don’t target anyone, but women sunbathing, and the “police officers radio each other to say ‘oh there’s a MILF over here, come over here.’” (230) Many of the women respondents in studies recount being “seen on camera and identified as not having had a top on in a park, even though they had a bikini top on— with the police saying repeatedly, ‘We just saw you on camera’” (230) The surveillants also target those in “hoodies, tracksuits, or trainers,” signs of the more popular classes. And of course, the NSA targets Muslim radicalizers. (247)

The steel mesh that surrounds us is by no means color-blind, and neither are the new forms of GPS monitoring. “In 2008, one out of nine young adult black men between the ages of twenty and thirty four—or approximately 11 percent of that population— was incarcerated in prison or jail in the United States. As of 2011, more than 2 million African American men were either behind bars or under correctional supervision (that is, had been arrested and processed by the criminal justice system and were on probation, on parole, or behind bars). That too represents about 11 percent of the total population of black men—one out of nine.” (235) And there are increasingly gender disparities in the carceral sphere: “The Immigrations and Customs Enforcement (ICE) field office in New York dramatically increased the number of women monitored by GPS-enabled ankle bracelets, up roughly 4,000 percent in 2104 alone, from 18 to 719.” (238)

Indeed, our digital world is becoming, for many, a steel mesh. “We watch and are watched, we knowingly strap surveillance devices on our bodies— and then some of us are arrested, some of us are disconnected, some of us are extracted.” (253) Yes, some of us, but of course, not all, and we tend to know who. As I suggested in my last post on the “Damn Daniel!” phenomenon, the digital space elides all kinds of race and class distinctions, but we need to resist that and bring it to the surface.

Despite all the unequal exposure, we need to speak as a “we,” not as that “they” that Franks concludes with. Not only because even those of us who are being surveilled and punished are at times exposing ourselves and also watching others, but because it is only as a “we” that we will be able to address the excesses of our expository society, each and every one of us—us digital subjects, with our desires and our disobedience.

This has been a thrilling symposium and I thank my interlocutors—Lisa Austin, Ann Bartow, Mary Ann Franks, Solangel Maldonado, Frank Pasquale, David Pozen, and Daniel Solove—immensely. I have learned a lot.

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Unequal Exposure

Towards the end of the breathless and impassioned tour through privacy, surveillance, carcerality, and desire that is Exposed, Bernard Harcourt writes that “the emphasis on what we must do as ethical selves, each and every one of us – us digital subjects – may be precisely what is necessary for us to begin to think of ourselves as we. Yes, as that we that has been haunting this book since page one” (283). The call for unity and solidarity is seductive: if “we” are all exposed and vulnerable, then “we” can all resist and demand change. But that “we” – that reassuring abstraction of humanity and human experience – is not in fact what haunts this book. That “we” – unquestioned, undifferentiated, unmarked – is taken for granted and treated as the universal subject in this book. What truly haunts this book is everything that this “we” obscures and represses. Harcourt’s “we” is remarkably undifferentiated. Nearly every point Harcourt makes about how “we” experience digital subjectivity, surveillance, and exposure would and should be contested by women, people of color, the poor, sexual minorities (and those who belong to more than one of the categories in this non-exhaustive list). It is unfair, of course, to expect any one book or any one author to capture the full complexity of human experience on any topic. One writes about what one knows, and nuance must sometimes be sacrificed for the sake of broad theory. But there is a difference between falling short of conveying the diversity of human experience and barely acknowledging the existence of differentiation. If one of Harcourt’s goals is to lead us to “think of ourselves as we,” it is vital to recognize that  “we” in the digital age are not equally represented, equally consenting or resisting, or equally exposed.

Let’s begin with Harcourt’s characterization of the digital age as a study in shallow positivity: “We do not sing hate, we sing praise. We ‘like,’ we ‘share,’ we ‘favorite.’ We ‘follow.’ We ‘connect.’ ‘We get LinkedIn.’ Ever more options to join and like and appreciate. Everything today is organized around friending, clicking, retweeting, and reposting. … We are appalled by mean comments – which are censored if they are too offensive”(41). This is a picture of the digital world that will be  unrecognizable to many people. There is no mention of online mobs, targeted harassment campaigns, career-destroying defamation, rape and death threats, doxxing, revenge porn, sex trafficking, child porn, online communities dedicated to promoting sexual violence against women, or white supremacist sites. No mention, in short, of the intense, destructive, unrelenting hatred that drives so much of the activity of our connected world. Harcourt’s vision of our digital existence as a sunny safe space where occasional “mean comments” are quickly swept from view is nothing short of extraordinary.

Next, consider Harcourt’s repeated insistence that there are no real distinctions between exposer and exposed, the watcher and the watched: “There is no clean division between those who expose and those who surveil; surveillance of others has become commonplace today, with nude pictures of celebrities circulating as ‘trading fodder’ on the more popular anonymous online message boards, users stalking other users, and videos constantly being posted about other people’s mistakes, accidents, rants, foibles, and prejudices. We tell stories about ourselves and others. We expose ourselves. We watch others” (129). There are, in fact, important divisions between exposers and the exposed. With regard to sexual exposure, it is overwhelmingly the case that women are the subjects and not the agents of exposure. The nude photos to which Harcourt refers weren’t of just any celebrities; they were with few exceptions female celebrities. The hacker in that case, as in nearly every other case of nude photo hacking, is male, as is nearly every revenge porn site owner and the majority of revenge porn consumers. The “revenge porn” phenomenon itself, more accurately described as “nonconsensual pornography,” is overwhelmingly driven by men exposing women, not the other way around. Many of Harcourt’s own examples of surveillance point to the gender imbalance at work in sexual exposure. The LOVEINT scandal, the CCTV cameras pointed into girls’ toilets and changing rooms in UK schools (229), and Edward Snowden’s revelations of how the NSA employees share naked pictures (230) primarily involve men doing the looking and women and girls being looked at. The consequences of sexual exposure are also not gender-neutral: while men and boys may suffer embarrassment and shame, girls and women suffer these and much more, including being expelled from school, fired from jobs, tormented by unwanted sexual propositions, and threatened with rape.

There are also important distinctions to be made between those who voluntarily expose themselves and those who are exposed against their will. In the passage above, Harcourt puts nude photos in the same list as videos of people’s “rants, foibles, and prejudices.” The footnote to that sentence provides two specific examples: Jennifer Lawrence’s hacked photos and video of Michael Richards (Seinfeld’s Kramer) launching into a racist tirade as he performed at a comedy club (311). That is a disturbing false equivalence. The theft of private information is very different from a public, voluntary display of racist hatred. In addition to the fact that naked photos are in no way comparable to casual references to lynching and the repeated use of racial slurs, it should matter that Jennifer Lawrence was exposed against her will and Michael Richards exposed himself.

It’s not the only time in the book that Harcourt plays a bit fast and loose with the concepts of consent and voluntariness. In many places he criticizes “us” for freely contributing to our own destruction: “There is hardy any need for illicit or surreptitious searches, and there is little need to compel, to pressure, to strong-arm, or to intimidate, because so many of us are giving all our most intimate information and whereabouts so willingly and passionately – so voluntarily” (17).  And yet Harcourt also notes that in many cases, people do not know that they are being surveilled or do not feel that they have any practical means of resistance. “The truth is,” Harcourt tells us with regard to the first, “expository power functions best when those who are seen are not entirely conscious of it, or do not always remember. The marketing works best when the targets do not know that they are being watched” (124). On the second point, Harcourt observes that “when we flinch at the disclosure, most of us nevertheless proceed, feeling that we have no choice, not knowing how not to give our information, whom we would talk to, how to get the task done without the exposure. We feel we have no other option but to disclose” (181-2). But surely if people are unaware of a practice or feel they cannot resist it, they can hardly be considered to have voluntarily consented to it.

Also, if people often do not know that they are under surveillance, this undermines one of the more compelling concerns of the book, namely, that surveillance inhibits expression. It is difficult to see how surveillance could have an inhibiting effect if the subjects are not conscious of the fact that they are being watched. Surreptitious surveillance certainly creates its own harms, but if subjects are truly unaware that they are being watched – as opposed to not knowing exactly when or where surveillance is taking place but knowing that it is taking place somewhere somehow, which no doubt does create a chilling effect – then self-censorship is not likely to be one of them.

Harcourt suggests a different kind of harm when he tells us that “[i]nformation is more accessible when the subject forgets that she is being stalked” (124). That is, we are rendered more transparent to the watchers when we falsely believe they are not watching us. That seems right. But what exactly is the harm inflicted by this transparency? Harcourt warns that we are becoming “marketized subjects – or rather subject-objects who are nothing more than watched, tracked, followed, profiled at will, and who in turn do nothing more than watch and observe others” (26). While concerns about Big Data are certainly legitimate (and have been voiced by many scholars, lawyers, policymakers, and activists), Harcourt never paints a clear picture of what he thinks the actual harm of data brokers and targeted Target advertisements really is. In one of the few personal and specific examples he offers of the harms of surveillance, Harcourt describes the experience of being photographed by a security guard before a speaking engagement. Harcourt is clearly unsettled by the experience: “I could not resist. I did not resist. I could not challenge the security protocol. I was embarrassed to challenge it, so I gave in without any resistance. But it still bothers me today. Why? Because I had no control over the dissemination of my own identity, of my face. Because I felt like I had no power to challenge, to assert myself” (222). While one sympathizes with Harcourt’s sense of disempowerment, it is hard to know what to think of it in relation to the sea of other surveillance stories: women forced to flee their homes because of death threats, parents living in fear because the names of their children and the schools they attend have been published online, or teenaged girls committing suicide because the photo of their rape is being circulated on the Internet as a form of entertainment.

Harcourt uses the term “stalk” at least eight times in this book, and none of these references are to actual stalking, the kind that involves being followed by a particular individual who knows where you live and work and means you harm, the kind that one in six women in the U.S. will experience in her lifetime, the kind that is encouraged and facilitated by an ever-expanding industry of software, gadgets, and apps that openly market themselves to angry men as tools of control over the women who have slipped their grasp. What a privilege it is to be able to treat stalking not as a fact of daily existence, but as a metaphor.

Harcourt’s criticism of what he considers to be the Supreme Court’s lack of concern for privacy adds a fascinating gloss to all of this. Harcourt takes particular aim at Justice Scalia, asserting that even when Scalia seems to be protecting privacy, he is actually disparaging it: “Even in Kyllo v. United States…. where the Court finds that the use of heat-seeking technology constitutes a search because it infringes on the intimacies of the home, Justice Scalia mocks the humanist conception of privacy and autonomy.” The proof of this assertion supposedly comes from Scalia’s observation that the technology used in that case “might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath – a detail that many would consider ‘intimate.’” Harcourt assumes that Scalia’s reference to the “lady of the house” is an ironic expression of contempt. But Scalia is not being ironic. Elsewhere in the opinion, he emphatically states that “[i]n the home… all details are intimate details,” and many of his other opinions reinforce this view. Scalia and many members of the Court are very concerned about privacy precisely when it involves the lady of the house, or the homeowner subjected to the uninvited drug-sniffing dog on the porch (Florida v. Jardines, 2013), or the federal official subjected to the indignity of a drug test (Treasury Employees v. Von Raab, 1989 (dissent)). These same members of the Court, however, are remarkably unconcerned about privacy when it involves a wrongfully arrested man subjected to a humiliating “squat and cough” cavity search (Florence v. Burlington, 2012), or a driver searched after being racially profiled (Whren v. US, 1996), a pregnant woman tricked into a drug test while seeking prenatal care (Ferguson v. Charleston, 2001 (dissent)). In other words, the problem with the Supreme Court’s views on privacy and surveillance is not that it does not care about it; it’s that it tends to care about it only when it affects interests they share or people they resemble.

The world is full of people who do not have the luxury of worrying about a growing addiction to Candy Crush or whether Target knows they need diapers before they do. They are too busy worrying that their ex-husband will hunt them down and kill them, or that they will be stopped and subjected to a humiliating pat down for the fourth time that day, or that the most private and intimate details of their life will be put on public display by strangers looking to make a buck. These people are not driven by a desire to expose themselves. Rather, they are being driven into hiding, into obscurity, into an inhibited and chilled existence, by people who are trying to expose them. If “we” want to challenge surveillance and fight for privacy, “they” must be included.

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Law and Digital Ascesis

Bernard Harcourt Exposed 02

In their insightful comments, Lisa Austin and Olivier Sylvain argue that we might want to place greater faith in law to redress the excesses of our expository society. As Austin writes, she and Sylvain, as well as Ann Bartow, “see a stronger role for law.” I am willing to be convinced if someone could offer some persuasive evidence.

In Law We Trust

As best I can tell, the federal courts have shown little willingness to protect privacy. The two federal courts that ruled in favor of privacy—Judge Richard Leon at the DC District Court and the Second Circuit in ACLU v. Clapper—both stopped short of enforcing their mandate. In both cases, the courts found for the plaintiffs, but refused to enjoin the intelligence program because the stakes were too high. Recall that Judge Leon stayed his injunction in 2013 “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues;” he only enjoined the program a couple of years later when it was practically dead. The Second Circuit, for its part, found the program illegal in Clapper, but then refrained from enjoining it since the issue was being debated by Congress. In other words, even when constitutional or statutory rights were declared to be infringed, the law offered little recourse. A somewhat flaccid response, I would say.

Not surprising, though, given the political constraints imposed on the selection of federal judges. As we know all too well, there are real constraints on judicial selection that influence the politics of the federal bench, as evidenced by the nomination just today of DC appeals court judge Merrick Garland to the US Supreme Court. It’s hard to imagine a robust privacy-protecting federal bench, faced with national security interests, in light of all the political constraints on the nomination process, from the district to the supreme court.

This doesn’t mean that, as lawyers, we give up and stop petitioning the courts. No, of course, we continue to file suit. In fact, this coming week, I’ll be filing a cert petition at the U.S. Supreme Court in an Alabama death penalty case involving an egregious instance of judicial abdication. We go on, we litigate, we have little choice. But we don’t necessarily place blind faith in the law.

In terms of law-making, the record is also bleak. Congress and the Obama Administration barely scratched at the surface of the Snowden revelations with the USA FREEDOM act last June. The reform did nothing to address the myriad intrusive NSA programs—PRISM, UPSTREAM, UNBOUNDED INFORMANT, etc.—focusing instead on the high-profile, but low-impact Section 215 bulk telephony metadata collection program. And the legislation hardly modified the program, instead merely deputizing the telecom companies to serve as data custodians.

If anything, the legislative reform smelled more of neoliberal profit-making than privacy protection. As you know, the fine print in the FREEDOM Act provided that the U.S. taxpayers would compensate the telecoms for holding their data. As Reuters reported, “The Freedom Act does contain a provision to compensate companies for costs they incur holding and turning over such data, which is something the carriers made clear they wanted in return for agreeing to store the data.” And that was pretty much baked into the cake from the get go. President Obama’s hand-picked advisors had recommended this “mutually beneficial” arrangement early on. In their report, Liberty and Security in a Changing World, Obama’s advisors wrote that “it would be in the interests of the providers and the government to agree on a voluntary system that meets the needs of both,” and, they added, if such a mutually agreeable deal could not be worked out, “the government should reimburse the providers for the cost of retaining the data.” Clearly, this was an economic win-win solution for the government and the telecoms—though perhaps not for tax-paying citizens.

The ink was hardly dry on the legislation before another Snowden leak confirmed that AT&T—our newfound guardian angels—had  willingly worked with the N.S.A. to provide access “to billions of emails as they have flowed across its domestic networks” and “installed surveillance equipment in at least 17 of its Internet hubs on American soil.” Those newly leaked documents reveal that AT&T was particularly solicitous over the period ranging from 2003 to 2013: “AT&T was the first partner to turn on a new collection capability that the N.S.A. said amounted to a ‘live’ presence on the global net.’” Early on, their partnership fueled an intelligence program that, in a single month, “forwarded to the agency 400 billion Internet metadata records” and “more than one million emails a day to the keyword selection system” at NSA’s headquarters in Fort Meade, Md. According to the NSA’s internal documents, AT&T’s “corporate relationships provide unique accesses to other telecoms and I.S.P.s.” As the New York Times reported, “One document reminds N.S.A. officials to be polite when visiting AT&T facilities, noting, ‘This is a partnership, not a contractual relationship.’”

That’s the company that is now protecting us. Yes, the same company that has willingly gone out of its way, for decades, to provide access behind the scenes to our intelligence agencies. Hardly another victory for the law. And, of course, the record is no better elsewhere. In France, for instance, the Paris attacks led to their own adoption of a PATRIOT Act à la française. But as I said, I am willing to be persuaded, if anyone can present some evidence of law’s effectiveness—not just its promise.

Digital Ascesis

Olivier Sylvain also raises the interesting alternative of an ascetic turn in today’s digital age in his post on “Disobedience, Asceticism, and Disparity.”

Now, I should emphasize at the outset that I did not intend to advocate for asceticism in the context of our digital desireTo be honest, I cannot imagine turning the clock back on the digital age or putting the genie back in the bottle. I don’t think we can take time out from the digital age. I know that I certainly cannot, given that my professional existence now revolves around e-mails, pdf scans, e-calendaring, Orbitz, Doodle, etc. As I mention throughout Exposed, even those who would like to avoid the digital age have no choice but to participate. We are inextricably implicated in silicon.

Asceticism is probably unlikely, but the notion of a “digital ascesis” is interesting. The term asceticism, Kyotoas you know, has its roots in the  Greek word askēsis, meaning “exercise” or “training.” It represents the notion of a particular mode of existence or way of life. Several colleagues and I have been studying this concept with Judith Butler and Rosi Braidotti in a faculty seminar over the past few months; and I am particularly interested in the notion of ascesis this week, as I have been traveling and visiting Kyoto, Japan, in connection with a conference later this week. The question here is whether we might explore our digital existence and experiences, today, as a mode of life, and, if so, whether we might learn how to modify this digital ascesis?

This may seem like an incongruous way in, but in order to study our present digital ascesis it might be worth looking at the most recent (and now passé, one can only hope) Internet phenomenon, one that exploded in February 2016 in the United States. It was that short video made on an iPhone, using Snapchat, of a young man, Daniel Lara (aged 14), caught on camera on successive days, showing off his stylish shoes, with an overlaid voice, each day and each time, saying “Damn, Daniel!” On particular snippets, when Daniel is wearing particular shoes—white slip-on Vans—the voiceover says “Damn, Daniel! Back at it again with those white Vans!”

The short video, only 30-seconds long, was made public on February 15, 2016, and went viral in matter of days. It had over 45 million views by the time the two boys—Daniel and Joshua Holtz (aged 15)—were invited on the Ellen Degeneres Show on February 24, 2016. The boys have become overnight celebrities because of the supposed catchiness of the meme “Damn, Daniel!”

 

 

Within days, songs and remixes were being written and produced using the meme. Rappers Little, Teej, and LeBlanc created a track using the meme, raising issues of race and white privilege; another remix was by Suhmeduh. Celebrities as far and wide as Justin Bieber, Kanye West, and Kim Kardashian are now sporting white Vans, riffing off the meme. On February 25, 2016, the New York Times (yes, even the Times wrote about it!), referring to the video as “the latest Internet sensation,” reported that “Daniel said that he can’t even go to the mall or a swim meet without being asked for photos with his fans or getting marriage proposals.”

Although easily dismissed as just “entertaining nonsense”—that’s how the New York Times started its article about the Internet phenomenon, describing it as “a meme ris[ing] up from the wondrous bog of entertaining nonsense that is the Internet”—the fact is, the “Damn, Daniel!” meme is very telling about our present digital ascesis.

This digital phenomenon played out through hundreds of thousands of “likes” and tens of millions of “shares,” “follows,” and “clicks.” And it represented a mode of life. A style of existence. The pool. The white Vans. The swim team. The tanned boys and girls. It both reflects and it influences, subliminally, the experiences of so many adolescents and young adults in the U.S. And, of course, it hides or elides so much.

What, for instance, is not in the video or on the Ellen Degeneres show? Well, for one thing, the political economy surrounding how those white Vans are produced and make their way to the poolside at Riverside High School, or the differential treatment that young black teenagers might get at their high school. All of the politics are elided behind the apparent pleasure of the meme.

So, for instance, the video is permeated by neoliberal consumerism, with the focus on Daniel’s different fashionable shoes. Daniel sports a different pair of new shoes practically every day, with the climax being his white Vans. It’s unclear whether the shoe company, Vans, was in on the phenomenon, according to the Times; but they certainly have benefited commercially. They could not have produced a more effective commercial. The whole phenomenon centers on consumption and the commercialization of those white Vans, masquerading under the surface of popularity.

There is also a racial dimension to the meme. It is filmed by white boys at an apparently white high school in Riverside, California, and has all the trappings of white privilege: sunny, monied, fashionable, blond-haired boys and girls. The rappers Little Feat, Teej & LeBlanc make the racial dimensions clear in their take, suggesting that black kids might not so easily get away with the same things, rapping as well on the racial-sexual innuendos surrounding the phenomenon. “Back at it again with the white Vans. Back at it again with the black Vans. […] Black canvas with the black stiches and the white slit […] Lunch table with some white bitches, after school with some white bitches, sniffing lines with them white bitches…” The white vans symbolize, for these rappers, white privilege. “Vans on, they are Mr. Clean.”

But notice that all of these political, racial, consumerist dimensions are elided  through the process of addictive web surfing, clicking, and downloading. As of February 22, 2016, seven days in, it had 260,000 retweets and 330,000 “likes” on Twitter. The official YouTube version had almost 1.5 million views on February 27, 2016, with 13,617 “likes.” With all these likes, the politics are simply buried under the popularity of the video.

How would it be possible to modify this digital ascesis in such as way as to highlight the political dimensions and expose the consumerism and racial dimensions? How would it be possible to highlight how power circulates in our digital ascesis? Without advocating asceticism, how could we possibly adjust our new mode of living? Those, I take it, are questions that we should be asking ourselves today.

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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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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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#ApplevFBI: Think Different

Bernard Harcourt Exposed 02

Frank Pasquale’s post to the on-line symposium on Exposed: Desire and Disobedience in the Digital Age provides the perfect opportunity to discuss the ongoing controversy between Apple and the FBI—especially in light of David Pozen and Daniel Solove‘s respective concerns that “digital disobedience” may fall short of what’s required to properly address the problems surrounding digital privacy today.

Frank Pasquale is undoubtedly right that Apple’s newfound embrace of privacy is little more than a smart business decision: “Large firms like Apple now see commercial advantage in fighting demands for decryption in the US,” Pasquale writes convincingly.

The fact is, Apple’s newfound embrace has to be understood against the backdrop of what was probably its most humiliating moment in history—and probably its most costly, in terms of international business. Yes, I am referring to that infamous NSA Powerpoint PRISM slide, leaked by Edward Snowden, showing Apple on that long list of Silicon Valley firms turning over our personal data to the NSA. Everyone will, no doubt, remember the slide all too well:

 

Prism

Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL… and, yes, last but not least, trailing behind the others, just one among many, just another undifferentiated firm “added Oct. 2012”: Apple. Apple was, after all, the one company we all had faith in, we all thought might be different than the others. It was the company that made its reputation on being “different.” Recall its famous advertising campaign, “Think Different,” in the late 1990s, with images of Martin Luther King, Muhammad Ali, Mahatma Ghandi, Albert Einstein, and John Lennon, with references to the rebels, the misfits, the trouble makers, the ones who see things differently… “They’re not fond of rules and they have no respect for the status quo,” Richard Dreyfuss narrated in the Apple commercial (and Steve Jobs as well in the unreleased video). “Because the people who are crazy enough to think they can change the world, are the ones who do.”

 

But there was Apple, right there on the NSA slide, trailing the others, trying to catch up with the others, collaborating with the spies and giving away our data to the signal intelligence agency. There it was, just another embarrassing ne’er-do-well. Hardly a rebel, hardly a trouble maker, hardly the one who sees things differently. No, Apple was just like all the others, giving our information away to the government. No Martin Luther King, no Ghandi, in fact, no courage or backbone or spine.

Of course, as long as nobody knew, Apple didn’t seem concerned about our privacy. But once that NSA slide went public, wow, how things changed! And this makes business sense, naturally, especially for a company like Apple that wants to dominate the markets in China and Europe and elsewhere abroad—and desperately needs, to do so, to appear independent of American intelligence interests. A company that, perhaps, desperately needs to regain a bit of our trust and to try to distinguish itself once again.

But, today, in 2016, there is even more to it than that. Apple has been increasingly flexing its own “governmental” muscle. It has increasingly been trying to act like the state. In effect, Apple is now showing the world that it may be even stronger than the United States government—which incidentally may be true given that it is, fiscally, so much more solvent and, in our neoliberal imagination at least, so much more legitimate.

The lines between the state and commerce have been falling apart for some years now. You may recall the story about Josh Begley that I detailed in Exposed: how Apple rejected Begley’s application for a drone stream app because it did not appeal to a “broad enough audience.” (Exposed, p. 189-190). Apple and other firms like Google have taken over security and surveillance functions, and in the process are breaking down the traditional lines that separate commercial from governmental functions.

So Apple’s resistance to the FBI not only makes business sense, it also contributes to a larger trend that is reshaping our form of government in the twenty-first century.

Given all of this, it makes little sense to approach the #ApplevFBI controversy from a traditional public policy perspective. Rather, we need to approach it from a critical theoretic perspective, and remember and emphasize that Apple would not even be resisting the FBI were it not for the type of digital disobedience that Edward Snowden embodies—were it not, that is, for the fact that Snowden exposed Apple.

Nothing here is intended to suggest, as Ann Bartow intimates, that legal reforms have no place alongside digital disobedience. To the contrary, as I suggest, the entire property relation to personal data needs to be reformed. But it is to underscore the need, as well, for more radical or extra-legal interventions. Without those, useful legal reforms are unlikely to attract much public support. We need to think different.

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Naked and Afraid

“Exposed” author Bernard E. Harcourt does an outstanding job of describing what he calls our “Expository Society” in the book’s introduction, observing that “everything we do in our new digital age can be recorded, stored and monitored,” (p. 1) and explaining in detail how and why it happens, and ways to think about the situation.  The introduction does a nice job of cueing up the topics Harcourt will cover in the rest of the work. It also foreshadows the complexity of ideas and expression that the reader is about to encounter.

If all you want to know from this review is whether I recommend buying and reading this book, my recommendations are, yes and yes.  It’s not the kind of book that you will likely read at a single sitting, but if you persist, it draws you back and you will find yourself thinking about its lessons frequently.  I certainly have. Nevertheless, in the spirit of this group review, I offer the following criticisms:

  1. Writing Style

“Exposed” is an excellent book in many ways.  It covers a lot of important information in minute detail, and it raises many provocative questions.  But after the introduction, something about the tone of the book becomes decidedly off-putting.   Harcourt uses devices like deployment of the pronoun “we” to avoid sounding mocking or condescending, but it doesn’t quite work.  For example, Harcourt writes: “Most often we expose ourselves for the simplest desires, the pleasure of curiosity, a quick distraction—those trifling gratifications, that seductive click the iPhone shutter makes, the sensual swoosh of a sent email.” (p. 15). And he asserts we lack discipline. (p. 17).  And he says: “it is precisely our desires and passions that have enslaved us, and ensnared us in this digital shell as hard as steel.” (p. 283). There is aggressive shaming here and throughout the book that the author’s self-inclusion by use of the first person plural does not dilute.

Although the writing is at times very elegant, it also runs to the impenetrable.  For example, Harcourt’s infatuation with Foucault takes even the well-known panopticon privacy metaphor and makes it obtuse.   A little over a third of the way into the tome I encountered this paragraph:

“The ambition of virtual transparence magnifies the disciplinary ambition of visibility within enclosed structures.  Recall that there was an important gradual evolution from rendering visible to transparency during the disciplinary turn.  “The old simple schema of confinement and enclosure, Foucault wrote, “began to be replaced by the calculation of openings, of filled and empty spaces, passages and transparencies.”  Rendering visible would develop into internal transparency, to the point that the panopticon itself would “become a transparent building in which the exercise of power may be supervised by society as a whole.”  Foucault refers to Bentham’s panopticon as his “celebrated, transparent, circular cage,” and places the element of transparency at the center of the panoptic principle: it is what made “architecture transparent to the administration of power.” The element of transparency played an important role in the internal structure of the disciplinary edifices. “The perfect disciplinary apparatus would make it possible for a single gaze to see everything constantly,” Foucault emphasized.”” (p. 119-20).

If you can absorb all that in the first reading, I congratulate you.  But I don’t know too many people outside of academia and maybe a few think tanks who will want to put as much work into its reading as this book demands.  The writing is breathtakingly brilliant in places, but its accessibility to even educated and highly interested readers may be limited.  Expressing complicated ideas in clear language is hard but worth it. If the wonderful and clear writing Frank Pasquale had not recommended this book so strongly, I am not sure I would have made it through the first couple of chapters or agreed to write this review.

  1. Uncharitable Generalizations of  We the Proletariat

So engaged is he in excoriating us for indulging our desires and passions online, Harcourt fails to fully acknowledge the degree to which people are compelled to participate in what he describes as our current digital situation. I don’t know anyone in real life who doesn’t “get” the importance of privacy.  I don’t know anyone in real life who doesn’t care about their privacy.  And I definitely don’t know anyone personally who thinks they don’t have to worry about privacy if they aren’t doing anything wrong.  Google CEO Eric Schmidt reportedly once said: “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”  But this is a fairly anomalous statement, made by a man who profits directly and greatly from personal data.  Of course he would like to shame people into disregarding their own privacy.   But there is no evidence that he has succeeded.

In the world of ordinary people, every single person I know has had an unpleasant airport security line episode, or has found fraudulent charges on a credit card bill, or had an email or Facebook account hacked, or an interception of their income tax refund, or some other identity theft issue.  No one is complacent!  All are aggrieved.  But there is no clear path to better privacy or security.  You can’t (or at least definitely shouldn’t) avoid filing your federal tax forms, even though the IRS is demonstrably terrible at keeping them confidential.  You can’t stop eating or wear clothes, so you have to buy food and clothing somewhere.

People who travel need access to plane tickets, hotel rooms, and rental cars.  Some travel is for hedonic purposes, which Harcourt might be especially judgmental about if we are inattentive to personal privacy concerns, but many of us also need to travel for work.  This requires credit cards, and therefore involuntary contributions to data streams.  Many of us have to advance the funds for work related travel out of our own pockets and on our personal credit cards, and then wait to be reimbursed, sometimes for lengthy intervals. Compromising our data privacy along the way is simply another burden we bear.  We need the rental car waiting for us in the parking garage when it is very late or very early and the service desk is closed. We loath flying a tiny bit less if we can occupy one of the plane’s aisle seats.  It’s nice to have free wifi at a hotel, because otherwise we might have to pay for it out of pocket. And if submitting great swaths of personal information to the government in exchange for “TSA pre-check” at airports means an extra hour of pre-flight sleep in the morning, should we really be ashamed of this sybaritic desire?  Is forgoing an “easy pass” and instead waiting in long lines to pay highway tolls with cash the kind of activism that is going to foster a privacy revolution?

  1. Under-Appreciation of Law as a Tool for Digital Resistance

Even simple new legislation can improve lives and lived privacy. For example, implementation of a short, clear law establishing privacy favoring defaults on commercial websites could be a simple way to start changing the culture of online commerce.  I prefer not to “remain signed in” to any website.  Because “remain signed in,” or “remember me” are the proactive defaults at most websites, this means I have to affirmatively uncheck the “remain signed in” or “remember me” boxes dozens of times each day.  Occasionally I forget or am unable to uncheck the box, and have to figure out how to log out of a website, which is rarely obvious.  If the law required an unchecked “remain signed in” or “remember me” box as the default, joining the production of an online data stream by signing on permanently to a website would require a volitional act. This would improve privacy and enhance awareness about data collection. The same sort of law could require online merchants to give consumers the option not to have their credit card information stored by the store website, and even make a “do not remember credit card info” option the default, leaving less information around for hackers to appropriate as well as improving the privacy climate.

These and other relatively small changes instigated by new laws could eventually lead, albeit incrementally, to significant changes.  A federal data breach notification statute could replace and improve upon 47 different state law approaches, and enhance the lives of people living in the three states with no data breach notification laws at all. Another possibility is a law that forces venders on and offline to offer the same prices to customers who do not have “loyalty cards” or memberships as to those who do, so that no one will have to cede personal data for a product discount.

Ultimately individuals in the United States would benefit from a European Union style approach to data privacy.  Harcourt indirectly makes the case for why it is needed, but doesn’t advance the cause overtly.  Instead he advises readers about technological steps they can take if they can afford them and understand computers well enough to implement them.  And then he insists we engage in resistance, in the form of hip, edgy political disobedience. I think direct lobbying for a better legal regime will be more effective in the long run. The two approaches are not mutually exclusive of course, but I think that openly and assertively advocating for specific new laws could be the most effective mechanism for change, and attract the most support.

A Social Theory of Surveillance

LocksBernard Harcourt’s Exposed is a deeply insightful analysis of data collection, analysis, and use by powerful commercial and governmental actors.  It offers a social theory of both surveillance and self-exposure. Harcourt transcends methodological individualism by explaining how troubling social outcomes can be generated by personal choices that each seem rational at the time they are made. He also helps us understand why ever more of daily life is organized around the demands of what Shoshanna Zuboff calls “surveillance capitalism:” intimate monitoring of our daily lives to maximize our productivity as consumers and workers.

The Chief Data Scientist of a Silicon Valley firm told Zuboff, “The goal of everything we do is to change people’s actual behavior at scale. When people use our app, we can capture their behaviors, identify good and bad behaviors, and develop ways to reward the good and punish the bad. We can test how actionable our cues are for them and how profitable for us.” Harcourt reflects deeply on what it means for firms and governments to “change behavior at scale,” identifying “the phenomenological steps of the structuration of the self in the age of Google and NSA data-mining.”

Harcourt also draws a striking, convincing analogy between Erving Goffman’s concept of the “total institution,” and the ever-denser networks of sensors and training (both in the form of punishments and lures) that powerful institutions use to assure behavior occurs within ranges of normality. He observes that some groups are far more likely to be exposed to pain or inconvenience from the surveillance apparatus, while others enjoy its blandishments in relative peace. But almost no one can escape its effects altogether.

In the space of a post here, I cannot explicate Harcourt’s approach in detail. But I hope to give our readers a sense of its power to illuminate our predicament by focusing on one recent, concrete dispute: Apple’s refusal to develop a tool to assist the FBI’s effort to reveal the data in an encrypted iPhone. The history Harcourt’s book recounts helps us understand why the case has attracted so much attention—and how it may be raising false hopes.

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Irresistible Surveillance?

Bernard Harcourt’s Exposed: Desire and Disobedience in the Digital Age offers many intriguing insights into how power circulates in contemporary society.  The book’s central contribution, as I see it, is to complicate the standard model of surveillance by introducing the surveilled’s agency into the picture.  Exposed highlights the extent to which ordinary people are complicit in regimes of data-monitoring and data-mining that damage their individual personhood and the democratic system.  Millions upon millions of “digital subjects,” Harcourt explains, have come to embrace forms of exposure that commoditize their own privacy.  Sometimes people do this because they want more convenience when they navigate capitalist culture or government bureaucracies.  Or because they want better book recommendations from Amazon.  Other times, people wish to see and be seen online—increasingly feel they need to be seen online—in order to lead successful social and professional lives.

So complicit are we in the erosion of our collective privacy, Harcourt suggests, that any theory of the “surveillance state” or the “surveillance industrial complex” that fails to account for these decentralized dynamics of exhibition, spectacle, voyeurism, and play will misdiagnose our situation.  Harcourt aligns himself at times with some of the most provocative critics of intelligence agencies like the NSA and companies like Facebook.  Yet the emphasis he places on personal desire and participatory disclosure belies any Manichean notion of rogue institutions preying upon ignorant citizens.  His diagnosis of how we’ve lost our privacy is more complex, ethically and practically, in that it forces attention on the ways in which our current situation is jointly created by bottom-up processes of self-exposure as well as by top-down processes of supervision and control.

Thus, when Harcourt writes in the introduction that “[t]here is no conspiracy here, nothing untoward,” what might seem like a throwaway line is instead an important descriptive and normative position he is staking out about the nature of the surveillance problem.  Exposed calls on critics of digital surveillance to adopt a broader analytic lens and a more nuanced understanding of causation, power, and responsibility.  Harcourt in this way opens up fruitful lines of inquiry while also, I think, opening himself up to the charge of victim-blaming insofar as he minimizes the social and technological forces that limit people’s capacity to change their digital circumstances.

The place of desire in “the expository society,” Harcourt shows, requires rethinking of our metaphors for surveillance, discipline, and loss of privacy.  Exposed unfolds as a series of investigations into the images and tropes we conventionally rely on to crystallize the nature of the threat we face: Big Brother, the Panopticon, the Surveillance State, and so forth.  In each case, Harcourt provides an erudite and sympathetic treatment of the ways in which these metaphors speak to our predicament.  Yet in each case, he finds them ultimately wanting.  For instance, after the Snowden disclosures began to garner headlines, many turned to George Orwell’s novel 1984 to help make sense of the NSA’s activities.  Book sales skyrocketed.  Harcourt, however, finds the Big Brother metaphor to be misleading in critical respects.  As he reminds us, Big Brother sought to wear down the citizens of Oceania, neutralize their passions, fill them with hate.  “Today, by contrast, everything functions by means of ‘likes,’ ‘shares,’ ‘favorites,’ ‘friending,’ and ‘following.’  The drab blue uniform and grim gray walls in 1984 have been replaced by the iPhone 5C in all its radiant colors . . . .”  We are in a new condition, a new paradigm, and we need a new language to negotiate it.

Harcourt then considers a metaphor of his own devising: the “mirrored glass pavilion.”  This metaphor is meant to evoke a sleek, disorienting, commercialized space in which we render ourselves exposed to the gaze of others and also, at the same time, to ourselves.  But Harcourt isn’t quite content to rest with this metaphor either.  He introduces the mirrored glass pavilion, examines it, makes a case for it, and keeps moving—trying out metaphors like “steel mesh” and “data doubles” and (my favorite) “a large oligopolistic octopus that is enveloping the world,” all within the context of the master metaphor of an expository society.  Metaphors, it seems, are indispensable if imperfect tools for unraveling the paradoxes of digital life.

The result is a restless, searching quality to the analysis.  Exposed is constantly introducing new anecdotes, examples, paradigms, and perspectives, in the manner of a guided tour.  Harcourt is clearly deeply unsettled by the digital age we have entered.  Part of the appeal of the book is that he is willing to leave many of his assessments unsettled too, to synthesize a vast range of developments without simplifying or prophesizing.

Another aspect of Exposed that enhances its effect is the prose style.  Now, I wouldn’t say that Harcourt’s Foucault-fueled writing has ever suffered from a lack of flair.  But in this work, Harcourt has gone further and become a formal innovator.  He has developed a prose style that uncannily mimics the experience of the expository society, the phenomenology of the digital subject.

Throughout the book, when describing the allure of new technologies that would rob us of our privacy and personhood, the prose shifts into a different register.  The reader is suddenly greeted with quick staccato passages, with acronyms and brand names thrown together in a dizzying succession of catalogs and subordinate clauses.  In these passages, Harcourt models for us the implicit bargain offered by the mirrored glass pavilion—inviting us to suspend critical judgment, to lose ourselves, as we get wrapped up in the sheer visceral excitement, the mad frenzy, of digital consumer culture.

Right from the book’s first sentence, we confront this mimetic style:

Every keystroke, each mouse click, every touch of the screen, card swipe, Google search, Amazon purchase, Instagram, ‘like,’ tweet, scan—in short, everything we do in our new digital age can be recorded, stored, and monitored.  Every routine act on our iPads and tablets, on our laptops, notebooks, and Kindles, office PCs and smart-phones, every transaction with our debit card, gym pass, E-ZPass, bus pass, and loyalty cards can be archived, data-mined, and traced back to us.

Other sentences deploy a similar rhetorical strategy in a more positive key, describing how we now “‘like,’ we ‘share,’ we ‘favorite.’ We ‘follow.’ We ‘connect.’ We get ‘LinkedIn”—how “[e]verything today is organized around friending, clicking, retweeting, and reposting.”

There is a visceral pleasure to be had from abandoning oneself to the hyper-stimulation, the sensory overload, of passages like these.  Which is precisely the point.  For that pleasure underwrites our own ubiquitous surveillance and the mortification of self.  That pleasure is our undoing.  More than anything else, in Harcourt’s telling, it is the constant gratifications afforded by technologies of surveillance that have “enslaved us, exposed us, and ensnared us in this digital shell as hard as steel.”

*  *  *

I hope these brief comments have conveyed some of what I found so stimulating in this remarkable book.  Always imaginative and often impressionistic, Exposed is hazy on a number of significant matters.  In the hope of facilitating conversation, I will close by noting a few.

First, what are the distributional dimensions of the privacy crisis that we face?  The implicit digital subject of Exposed seems to be a highly educated, affluent type—someone who would write a blog post, wear an Apple Watch, buy books on Amazon.  There may well be millions of people like this; I don’t mean to suggest any narcissism in the book’s critical gaze.  I wonder, though, how the privacy pitfalls chronicled in Exposed relate to more old-fashioned forms of observation and exploitation that continue to afflict marginalized populations and that Harcourt has trenchantly critiqued in other work.

Second, what about all the purported benefits of digital technology, Big Data, and the like?  Some commentators, as Harcourt notes in passing, have begun to argue that panoptic surveillance, at least under the right conditions, can facilitate not only certain kinds of efficiency and security but also values such as democratic engagement and human freedom that Harcourt is keen to promote.  I share Harcourt’s skepticism about these arguments, but if they are wrong then we need to know why they are wrong, and in particular whether they are irredeemably mistaken or whether they might instead point us toward useful regulatory reforms.

And lastly, what would dissent look like in this realm?  The final, forward-looking chapter of Exposed is strikingly short, only four pages long.  Harcourt exhorts the reader to fight back through “digital resistance” and “political disobedience.”  But remember, there is no conspiracy here, nothing untoward.  Rather, there is a massively distributed and partially emergent system of surveillance.  And this system generates enormous perceived rewards, not just for those at the top but for countless individuals throughout society.  It is something of a puzzle, then, what would motivate the sort of self-abnegating resistance that Harcourt calls for—resistance that must be directed, in the first instance, toward our own compulsive habits and consumptive appetites.  How would that sort of resistance develop, in the teeth of our own desires, and how could it surmount collective action barriers?

These are just a few of the urgent questions that Exposed helps bring into focus.

*  *  *

David Pozen is an associate professor at Columbia Law School.

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Surveillance and Our Addiction to Exposure

Bernard Harcourt ExposedBernard Harcourt’s Exposed: Desire and Disobedience in the Digital Age (Harvard University Press 2015) is an indictment of  our contemporary age of surveillance and exposure — what Harcourt calls “the expository society.” Harcourt passionately deconstructs modern technology-infused society and explains its dark implications with an almost poetic eloquence.

Harcourt begins by critiquing the metaphor of George Orwell’s 1984 to describe the ills of our world today.  In my own previous work, I critiqued this metaphor, arguing that Kafka’s The Trial was a more apt metaphor to capture the powerlessness and vulnerability that people experience as government and businesses construct and use “digital dossiers” about their lives.  Harcourt critiques Orwell in a different manner, arguing that Orwell’s dystopian vision is inapt because it is too drab and gray:

No, we do not live in a drab Orwellian world.  We live in a beautiful, colorful, stimulating, digital world that is online, plugged in, wired, and Wi-Fi enabled.  A rich, bright, vibrant world full of passion and jouissance–and by means of which we reveal ourselves and make ourselves virtually transparent to surveillance.  In the end, Orwell’s novel is indeed prescient in many ways, but jarringly off on this one key point.  (pp. 52-53)

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Orwell’s Vision

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Life Today

Neil Postman Amusing Ourselves to DeathHarcourt notes that the “technologies that end up facilitating surveillance are the very technologies we crave.”  We desire them, but “we have become, slowly but surely, enslaved to them.” (p. 52).

Harcourt’s book reminds me of Neil Postman’s Amusing Ourselves to Death, originally published about 30 years ago — back in 1985.  Postman also critiqued Orwell’s metaphor and argued that Aldous Huxley’s Brave New World was a more apt metaphor to capture the problematic effects new media technologies were having on society.

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