Studying Law Studying Surveillance 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.
Quite an interesting read but to be honest, I would rather confront surveillance studies on its running failure to produce results than on theory questions.
When I say, “its running failure to produce results,” I have to acknowledge that drone strikes and cruise missiles have been used to settle private scores between citizens in Afghanistan and elsewhere, but that seems like a very poor rate of return. And we shouldn’t forget the mentally disturbed and wannabe terrorists that the FBI assists, one assumes on the basis of surveillance evidence.
What I suspect the surveillance camp has yet to comprehend is that assuming 24 x 7 total surveillance of even a smallish group of people, is going to take the collective bandwidth of at least three to four times the number of people under surveillance, to say nothing of the infrastructures to keep all their watching coordinated.
With the limited surveillance data that is being captured now, the surveillance community has demonstrated its inability to do much worthwhile with the data. The recent story of the TSA being unable to identify 73 TSA employees as having links to terrorism being yet another case in point. The surveillance community is unable to effectively share data with agencies that need to have it.
I would start any dialogue or debate about surveillance by putting the burden of proof squarely on the shoulders of the surveillance community. What evidence do they have that surveillance works at all? Or that particular procedures, such as the bulk collection of phone metadata is effective? The latest review on the phone records program suggests for all of the hand wringing over it, it has yet to be useful.
No doubt there is the potential for it to be useful, but that could be said about almost any human activity. We need some basis beyond paranoia and/or the need to sustain agency budgets to support surveillance programs.
It’s not that liberal theory isn’t important for the law, it is, but if there is no factual basis for even evaluating surveillance, then why trouble ourselves?
I first saw this in a tweet by Bruce Schneier.