In case you missed when The Guardian broke the story last night, here’s the TLDR: the Federal Bureau of Investigation (FBI) got a super-secret court order from the Foreign Intelligence Surveillance Court (or Fisa) that says that, on a daily basis and from 25 April to 19 July of this year, telecom company Verizon must give information to the National Security Agency (NSA) about all the calls that take place through Verizon’s mobile and landline systems. The court order says that Verizon can’t talk about the court order (the first rule of Sketchy Fisa Court Order is: do not talk about Sketchy Fisa Court Order), but someone leaked the order itself—and now we all know that, every day, Verizon is giving the NSA “the numbers of both parties …location data, call duration, unique identifiers, and the time and duration of all calls.”[i] Because these things are considered “telephony metadata” rather than “communication,” the FBI doesn’t need to get a warrant for each individual customer; instead, it can (and obviously has) demanded records pertaining to all Verizon customers, whether those people are or might be or ever might be suspected of anything at all.
The big questions now are: 1) whether this was the first three-month court order, or just the most recent three-month court order; and 2) whether Verizon is the only telecom that’s received such an order, or just the only telecom that’s received an order that’s been leaked. While I don’t know if I can call the first one[ii], the second seems to deserve a resounding “well DUH”; I can think of nothing to distinguish Verizon in such a way as would make it more worth data-mining than, say, AT&T. If Verizon got one, then AT&T probably got one; Sprint and TMobile each probably got one, and so too did probably every other mobile or landline carrier with a US address of operations. It seems increasingly clear that, whether we’re presumed innocent or presumed guilty, we ourselves had best presume that we’re under direct surveillance.
If there’s one thing that frequently pops up when we talk about pervasive surveillance, it’s good old Foucault’s take on Jeremy Bentham’s Panopticon. Accordingly, as I read The Guardian’s coverage last night, I wondered how long it would be before the first “U.S. Government/Obama/Verizon (etc) as Panopticon” blog post appeared on my radar. Yet, the more I thought about it, the more it seemed the Panopticon isn’t an apt metaphor for what’s happening with the Verizon phone records. A quick web search confirmed that, while the Verizon court order is news, the non-panopticon-ness of it is not—so I’m going to share what I was thinking at the time, and ask for those of you who know more about this to join the conversation in the comments section. [Please note that surveillance studies isn’t my specialty, but that for some reason—perhaps because I’ve spent the last few weeks writing on topics I actually do know something about—this is the post I’m deciding to finish right now.]
For those readers not familiar, here’s a quick crash-course in Foucault’s writing about the Panopticon: It was a design for a cylindrically-shaped prison with a central guard tower, and individual prisoner cells along the inside perimeter. The guard would have the ability to see into each cell, but no prisoner would be able to see the guard. This means that each prisoner could be being watched at every moment, but that no prisoner could ever know whether he (or she) was being watched in any particular moment. As a result, prisoners would have to behave all the time as though they were being watched, even though each individual prisoner would only be watched some of the time. Prisoners’ self-regulation of their own behavior represented their internalization of the panoptic gaze, and therefore the disciplinary power of the Panopticon. The Panopticon itself may never have been built, but states and institutions (such as hospitals, schools, factories, military forces, etcetera) use similar principles to wield disciplinary power over citizens and subjects.
So, here we go: we’ve got a state—the U.S. government—watching everyone who has a Verizon number (and to a lesser extent, everyone who’s called anyone with a Verizon number). The easy jump would be to “Panopticon!”, right? But here are my first thoughts about why I don’t think the panoptic metaphor quite works: In the original panoptic prison, and in the hierarchical institutions Foucault wrote about, power’s expectations for prisoner/subject behavior are fairly clear. Everyone has a decent idea of what the normative expectations are, even when they fail to live up to them. There may be grey areas, but everyone knows what clearly ‘good’ behavior looks like and what clearly ‘bad’ behavior looks like. There’s something to internalize when you internalize the watcher/watched relation; you might not know whether you are being watched, but you do know what you oughtn’t be doing in the moments when you are being watched. Without this knowledge, without at least vaguely certain expectations, the disciplinary effectiveness of panoptic surveillance would break down.
Now think specifically about the state demanding phone records. I really want to believe there’s no one left who still believes the state only demands phone records when specific people are under legitimate strong suspicion of having done something genuinely bad, but I’m going to argue that an association between this level of surveillance and deviance or criminality—“the state wants your phone records, therefore you probably did something bad”—still lingers in our popular imagination. (How often do you see movies or TV shows in which a government official is going through someone’s phone records or phone conversations, and that person turns out to be innocent?) I don’t think we’ve accepted “the government going through our phone records” as simply a part of banal reality, the way we tolerate the near-ubiquitous presence of closed-circuit television cameras; if we had, the Verizon story wouldn’t be getting as much attention as it is now. The state going through our phone records, then, seems more closely aligned with the idea of punishing the deviant than with a generalized disciplinary gaze; part of our alarm is that we don’t feel we deserve to be scrutinized in this way.
Yet when potentially everyone who has a phone number is included in the “punishment,” how are we to know what the “crime” is? How are we to know how to shape our docile bodies? What is it that the state wants from us? Surely it can’t be “don’t use phones,” but then…what? Obviously, yes, the state would like us not to be “terrorists” (however it may define that term on any given day); we know that “illegal activity” will potentially be cause for getting in trouble. For most people, this doesn’t help. We know now that we’re all (probably) being watched, but what exactly is it we’re supposed to do on account of being watched? I see a lot of things going on with the Verizon court order, but one thing I don’t see is a clear disciplinary message. Maybe that’s (part of) why we weren’t supposed to know about it in the first place.
As I said above, surveillance studies isn’t one of my strong suits, so I’ve no idea of any of that makes sociological sense (or, if it does, if someone else has already done a better job of laying out similar arguments). But these thoughts led me to go through some notes, run a couple quick web searches, and refresh my passing familiarity with Mark Poster’s concept of the Superpanopticon; that reading in turn led me to the work of (Theorizing the Web 2013 keynote speaker) David Lyon and the field of surveillance studies more generally. As Michael Zimmer asks in a review of Lyon’s edited volume Theorizing Surveillance: The Panopticon and Beyond,
“is the notion of the panopticon, characterized by subjects who persistently and consciously feel themselves under the watchful gaze of a centralized authority, useful when surveillance increasingly is hidden and dispersed among various private interests, such as in the tracking of commercial or Web-based activities?”
The general consensus among surveillance studies scholars seems to be that, while we shouldn’t throw the panoptic theory out entirely, we do indeed need to “move beyond” it—as panoptic theory can’t quite capture a world full of electronic databases, digital social technologies, and more “gazes” than one could shake any sort of stick at.
I therefore ask the surveillance scholars among Cyborgology’s readership in particular: What do you have to say about the Verizon court order? Which scholars and which theories or models seem particularly appropriate here? What sense are you making of this? And what do you think will happen next?
Whitney Erin Boesel can be surveilled, in part, by watching her Twitter feed: she’s @phenatypical.
[i]Think about that…and then, in addition, think about all the things your phone number is used to index. How many times have you encountered “phone number” as a required field when trying to buy something online? Ever signed up for any of those “rewards” programs at various stores, which link your phone number to your address, to what you’ve bought, and to the numbers of any credit cards you’ve used to make purchases? And now that we’ve brought some credit card numbers into this, let’s stop to think about everything than can be indexed with those. Let’s think about Acxiom Corporation sitting out there in Arkansas (to name just one), and wonder whether the FBI will send them a court order or simply a purchase order. Do you feel uncomfortable yet? Because, wow: these days the only person with whom I regularly have voice conversations over the phone is my mother, and I always give fake numbers to “rewards” programs, but I still feel uncomfortable.
[ii] As a Bostonian, I can almost imagine a small chance that this is part of some new wave of intensified surveillance in response to the Boston Marathon bombings and the crazy week that followed them…but that’s probably optimistic. This phone records thing probably isn’t that new.