Tuesday, April 29, 2008

The Panopticon in Space: Holland and the Domestic Spy Eye in the Sky

It was only a matter of time before technology brought the oppressive hunger for control of many states--especially democratic states--a new toy. As I have suggested in a longer work, Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes, 15 Indiana Journal of Global Legal Studies -- (forthcoming 2007), states are moving toward systems of regulation not through law but with surveillance. Behavior is to be controlled through monitoring and incentive. Law--positive commands to to or not do certain things--will increasingly assume the role of administrative regulation: specific directions to behavior in increasingly minute aspects of behavior. Modern democratic states are now able to assert a measure of control of individual behavior that, in another time, might have been thought of use only to totalitarian leaders with a pathological need to control behavior. Traditionally, in democratic states, culture and non-political institutions, bore a great responsibility for the inculcation of basic social and behavioral values. Legislation might fill in the gaps, or seek to move these cultural understandings, but would not substitute for them. But exceptions since the early 20th century has proven the rule. In the United States, for example, the state took a leading role in changing cultural notions of racial and gender relations. That required increasingly complex and sophisticated legislation. Law became administrative and a cultural substitute. A similar arrangement took place in the regulation of economic relationships. Though the state had traditionally intervened more vigorously in this area, the character of those interventions changed dramatically from the end of th 19th century, and since the early 21st century has essentially sought to substitute the state for other foundations of economic culture. The result has been a greater emphasis on surveillance, disclosure and transparency. See Larry Catá Backer, Surveillance and Control: Internal, External and Governmental Monitoring of Corporate Insiders After Sarbanes-Oxley, 2004 MICHIGAN STATE LAW REVIEW 327 (2004).

The intrusiveness of law, and its substitution for what Michel Foucault called govermentality, was further accelerated as non-governmental institutions increasingly lost their legitimacy as sources of political culture. This trend was deepened as democratic societies blame more self consciously multi-cultural, multi-racial, and multi-ethnic. In that context, the least common denominator of culture proved increasingly to be the state and its apparatus. Alas, then, the world has made great strides in another direction since 1945. The future of law is not so much the legislative expression of the popular will but the monitoring of individuals and the increasingly minute prescription of behavior. In this world deviance will be easier to control--that is to say, difference will be better domesticated in a world in which surveillance and regulation will substitute for culture and assimilation of values. This is the Eden of the totalitarian, it is now ours. Law is being used as a substitute for culture in the construction and enforcement of even the most basic behavioral norms. And the political state stands at the center of this web of law based culture.

But with all great changes, so with this one--the fundamentals first change in the smallest and least significant matters. Habits are changed not by challenging fundamentals but by training the citizenry to new behavior patterns in the mundane everyday tasks of life. There is nothing more threatening than the assertion of state control over the smallest actions of life--yet there is little else that is harder to resist. Banality is the greatest defense of the most far reaching changes. And as small habits change, attitudes can be massaged to accept without resistance the greater imposition. Resistance is futile when so little appears to be at stake. See Larry Catá Backer, Race, “The Race,” and the Republic: Reconceiving Judicial Authority After Bush v. Gore, 51 CATHOLIC UNIVERSITY LAW REVIEW 1057 (2002).

It was with this in mind that I read an interesting article in a Spanish publication, D.G. Bujarrabal, Los satélites verán por dónde andan en coche, Qué, May 5, 2008. "Holanda ha aprobado una medida pionera en el mundo y que hará que más de un conductor tenga que rascarse el bolsillo. Se trata de un peaje electrónico basado en navegación por satélite y que establece el pago en función de los kilómetros que cada vehículo recorra en cualquier carretera del país." Los satélites verán por dónde andan en coche, supra., ("Holland has approved a pioneering first of its kind measure and that will cause more than one driver to reach into his pocket. This measure will create an electronic toll based on satellite navigation systems in autos that imposes charges on car use based on the kilometers that each vehicle travels in any highway of the country") The system will obtain a subtantial amount of information about every vehicle and its use in Holland: every automobile will now have a record stored in the servers of the state. That record will consist of the use of the auto on the roads of Holland.

And the purpose of this vast system of surveillance is banal: the imposition of taxes and fees for use of the roads. With this system the state can not only monitor usage but also seek to change behavior by altering its fee structure to suit its sense of appropriate behavior on the road. " Los precios variarán según el vehículo (si es un medio de transporte colectivo, un todoterreno o un utilitario más o menos antiguo), los horarios y el tipo de vía por el que se circule." Id., ("Prices will vary by vehicle model and type (if it is a collective transport, an all terrain vehicle or a by age of vehicle), the time of use and the type of road used.").

What could be more just? "“Es un sistema más justo que el actual porque pone precio a la contaminación que realmente generamos”, explica Miguel Ángel Martínez Olagüe, director de Desarrollo Corporativo de GMV, una empresa española que participa en el complejo desarrollo tecnológico, del que ya se están haciendo las primeras pruebas piloto." Id. ("It is a fairer system than the one used now because it prices the pollution which we actually generate", explains Miguel Angel Martinez Olagüe, director of Corporative Development of GMV, a Spanish company that participated in the system's complex technological development, which is already undergoing pilot testing.") The great principles are thus deployed in the defense of this system--fairness, sustainability, traffic control, and the like. This is hardly the stuff to raise eyebrows. It is difficult to conceive of its benign purposes as sinister in the least. Indeed, privacy concerns are dismissed as paranoid: "Martínez Olagüe asegura que “no hay un seguimiento continuo, los datos se registran y se descargan sólo cada cierto tiempo”. Además, explica que en el centro de proceso de datos se utilizarán “códigos de anonimato” que impedirán asociar una persona con sus movimientos por carretera." Id. (Martínez Olague assures us that "there is no a continuous monitoring, the data are registered and discarded only during specific time periods." In addition, he explained that the collection units will employ data anonymity codes that they will impede the the association of individuals with his movements on the highway").

But information has no limits. Anonymity protocols are nice, but they will hardly impede a state or other actor with authority to overcome the anonymity barriers. information can always be diverted to new purposes. It long survives it useful life, especially when the state finds other uses for the information. It will be necessary, for example, at the most prosaic level, for studies to be conducted on road use, or the use of certain types of cars. The European Union will likely be interested in the data for its own purposes. And intelligence agencies, of course, will be delighted with th information for its own purposes. But most important, perhaps, is the recourse to satellite monitoring for both taxation and for changing culture. In this case the changes are innocuous--th driving habits of those who use the roads in Holland. But tools, once developed, will find other uses.

No comments: