Surveillance Law and Surveillance Studies

Interesting paper by Julie Cohen:

Abstract: The dialogue between law and Surveillance Studies has been complicated by a mutual misrecognition that is both theoretical and temperamental. Legal scholars are inclined to consider surveillance simply as the (potential) subject of regulation, while scholarship in Surveillance Studies often seems not to grapple with the ways in which legal processes and doctrines are sites of contestation over both the modalities and the limits of surveillance. Put differently, Surveillance Studies takes notice of what law does not—the relationship between surveillance and social shaping—but glosses over what legal scholarship rightly recognizes as essential—the processes of definition and compromise that regulators and other interested parties must navigate, and the ways that legal doctrines and constructs shape those processes. This article explores the fault lines between law and Surveillance Studies and considers the potential for more productive confrontation and dialogue in ways that leverage the strengths of each tradition.

Tags: academic papers, courts, laws, privacy, surveillance

Posted on June 8, 2015 at 12:48 PM • 8 Comments

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Curious • June 9, 2015 8:18 AM

Being a PC user and having dabbled in philosophy in general and some literary theory:

Having only tread the abstract shown here, this had me thinking of “legal scholars” as working with “theory”, and “surveillance studies” as working with “practice”; but this is not a simple theory/practice dichotomy I had in mind as if merely having different mindsets to working with “ideas”, instead my notion of ‘theory’ is simply understood as acts of justification (think inbreeding of ideas), and the notion of ‘practice’ is simply understood as some form of critique which wouldn’t rely on ending up with conventions as a goal (conventions, something I associate with “theory” in general, not to be confused with rationality).

I guess, as time pass, the knowledge relating to such “practice” might be incorporated into “theory”, for better and/or for worse.

JohnP • June 9, 2015 12:34 PM

Read the abstract 3 times – still don’t have a clue what this is about. The abstract “glosses over” using plain English, sadly.

David Hawthorne • June 9, 2015 12:37 PM

Put even more differently 🙂 -> “surveillance studies” often gets highly politicized, and too often ends up as clickbait material.

I think individuals both well studied in the law (well, lawyers), such as Jennifer Grannick, those involved in civil rights cases, those involved in international and domestic human rights cases have a strong niche here to build a bridge across the divide. And being that there is this important niche, more lawyers can enter into this field… if they can get funding.

(The legal market has been swamped for years, plenty of smart would be lawyers out there, but who find it difficult to get a job. They can definitely use another niche. Problem is funding. Expanding funding for EFF and EFF like groups via crowdsourcing, where additional opportunity for financial gain – such as by suing local, state, federal, and foreign governments would give a higher promise for gain. Actually, throw in there there commercial entities.)

It would also be useful to have some scholarly books which ‘cross the divide’ by making the material more able to be widely read. (Yes, an oxymoron, scholarly and widely read, but I mean scholarly and widely read like many of the more popular technical books we have seen out there from the scientific fields. )

Actually, very good area for Bruce to tackle.

This does add an extremely difficult obstacle to surmount: it is one thing to be able to stay accurate and make extremely technical material more widely accessible… and something else to do this with two extremely technical fields at the very same time.

Still, baby steps such efforts where a surveillance expert, like Bruce, co-authors a solid report by a legal expert, like Jennifer Grannick, designed for NYTimes, Wired, what have you could easily lead further to book material.

Justin • June 9, 2015 2:41 PM

From the paper:

… Even so, regulatory scrutiny of surveillance is complicated by misunderstandings that flow from law’s primary allegiance to liberal political theory.

And to determine what she means by “liberal political theory” I had to consult another paper of hers:

Scholarship about privacy within the U.S. legal academy is infused with the commitments of liberal political theory, first and foremost of which is a conception of the self as inherently autonomous.

Call it “liberal” if you want, but I am offended that American individualism (i.e. “the self as inherently autonomous”) is criticized as a source of “misunderstandings.”

To do Surveillance Studies better, legal scholars need to challenge their own preference for putting problems in categories that fit neatly within the liberal model of human nature and behavior, … Surveillance Studies scholars need to do more to resist their own penchant for totalizing dystopian narratives, …

So it would seem that in her opinion, legal scholars need to give up ideas of individualism and individual rights, and surveillance studies scholars like Bruce need to stop worrying about the dystopian aspects of total surveillance. Academic propaganda at its best.

gordo • June 9, 2015 4:14 PM

@ Justin,

There’s a parable that applies.

Justin • June 9, 2015 5:11 PM

@ gordo
From the conclusion of the paper I linked above:

As this brief summary of the debate about privacy and autonomy suggests, efforts to theorize privacy also have been hampered by the methodological commitments of liberal political theory, which prize most highly those definitions of rights that are susceptible to formal, quasi-scientific derivation from core principles.

The “liberal political theory” that this woman denigrates is exactly the core principles on which the USA was founded, and from which my rights derive. She explicitly rejects any core principles of privacy:

Definitions of privacy grounded in core principles, however, inevitably prove both over- and underinclusive when measured against the types of privacy expectations that real people have.9

As to the parable you cited, I much prefer the old wine of unalienable rights derived from core principles. Cohen has to prepare new bottles for her new wine, explicitly rejecting core principles of individual rights in favor of “what people expect.”

gordo • June 9, 2015 8:05 PM

@ Justin,

Thank you for your thoughtful reply.

Given your first quote from Ms. Cohen in your prior post, I believe you’re missing her point, that is, our practice does not match our doctrine. In other words, the radical nature of our present surveillance state does violence to, among other things, our unalienable right to …liberty. Ms. Cohen has no argument with core principles, but rather our losing sight of them (via quasi-scientific methodologies).

With respect to the second quote you cite, the nature of said surveillance state is (at least) three-fold:
1) did not occur in a vacuum
2) is not well-comprehended under past or current law, i.e, by society
3) inhibits our ability to act upon or in concert with our core principles, i.e., to secure rightly our liberty and contain the excesses that new wine brings

In short, we should not be guided by malformed surveillance practices, but rather informed by our doctrine of unalienable rights.

AlanS • June 11, 2015 9:38 PM

I think this paper points to one of the problems with academia. Specialized areas are formed, networks develop, they have their own conferences, journals, their own problems, jargon, key texts, etc. It’s not that interesting things aren’t being discussed but it is all very incestuous and often impenetrable for outsiders. The “surveillance-industrial complex” develops its own “surveillance studies academic complex”.

The idea of building bridges is nice but why restrict oneself to a bridge between legal scholars and surveillance studies? There is so much more to be had from the social sciences, philosophy and history. Surveillance studies originally organized itself, as best as I can make out, round the the notion of panopticism taken from Foucault’s Discipline and Punish, critiquing and expanding it, but, at least until recently, not coming to terms with the later trajectory of Foucault’s work. If you want to understand modern surveillance and control, you can’t not think about its relationship to ‘the market’. See for example Gane, Nicholas. The Governmentalities of Neoliberalism: Panopticism, Post-Panopticism and beyond: Surveillance and Neoliberalism. The Sociological Review 60, no. 4 (November 2012).

Schneier on Security

Surveillance Law and Surveillance Studies

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