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CHAPTER

1

Theorising the surveillance state

This chapter examines possibly the most important concept used in this book, namely surveillance. It identifies some of the ways in which surveillance has been conceptualised and theorised, and how these theorisations have changed over time. As Alan Sears has argued, theory is not a mere neutral tool, but a guide to action. The value of theory is that it helps us to ask and answer causal questions that cannot be answered at the level of fact alone.¹ If the problem – to the extent that there is one – is not correctly understood, then it becomes more difficult to craft effective intervention strategies. There can be little doubt that technological developments associated with computerisation have made surveillance easier, but does this automatically mean that these recent developments are negative in nature? Surely, surveillance can also have positive effects? Given the extent to which surveillance has become pervasive, how do the different elements of surveillance relate to one another? Are we really looking at a ‘Big Brother’-type scenario, where different surveillance actors combine their efforts to track and control people from the cradle to the grave? Or are the more benign elements of surveillance really nothing to worry about, with the threats being overstated by more paranoid elements of society? This chapter focuses on theoretical debates about these specific questions, as they impact on what we define as surveillance, and how we mark it out from other forms of information collection and analysis. Such questions matter, as answering them will help us answer the broader question of how worried we should be about these developments.

FOUCAULT AND THE PANOPTICON

It is impossible to discuss the concept of surveillance without invoking Michel Foucault and his appropriation of Jeremy Bentham’s panopticon as a metaphor for the kind of surveillance being undertaken by the NSA and its UK counterpart, GCHQ, and other state surveillance actors in the present time. In his book Panopticon, Bentham defined surveillance as ‘a new mode of obtaining power of mind over mind, in a quantity hitherto without example’.² Bentham’s definition is significant, as it links surveillance directly to social control. In other words, it is not aimed only at satisfying curiosity or meeting a voyeuristic need to peep into someone’s personal affairs; rather, it is aimed at obtaining information about a person to coerce that person to change his or her behaviour.

Bentham designed a panopticon, or a building that relies on surveillance, to achieve control of particular populations. The building design was meant for a variety of purposes, such as hospitals, schools and prisons, but Bentham was particularly interested in putting the design to use for penal purposes. Consisting of a circular building with an observation post at the centre, and cells radiating out from the centre, this design allowed a single guard to maintain watch over all the inmates in the cells. While it was physically impossible for the watchman to observe everyone at the same time, inmates never knew when they were being watched or not, and as a result they internalised disciplinary behaviour.³

While few panopticons have been built, the concept has found currency as a metaphor for the growth of surveillance in contemporary society. Foucault, who has probably done more than anyone else to popularise the concept, argued that the panopticon was the perfect surveillance tool, as it allowed the enforcers of discipline to observe their charges with a single gaze; while the supervisor is invisible, the inmates are visible to the supervisor at all times. For Foucault, this arrangement allowed for ‘the automatic functioning of power’⁴ by making the actual exercise of power unnecessary: a boon, especially in a society where governments perceived to be tyrannical faced the risk of rebellion by their subjects. This was because inmates were more inclined to alter their behaviour of their own accord because of the awareness that they could be observed. The technical possibility of constant surveillance also turned them into more knowable subjects, which was likely to make them more docile. This internalisation of discipline made the need for more overt forms of control through physical confrontation less necessary, and reduced the number of those exercising power, while potentially increasing the number of those over whom power was exercised. At the same time, power became dissociated from a particular governing individual: rather, it became a deindividualised regime of rules and mechanisms.⁵

The panopticon has become a metaphor for a state that keeps its citizens under constant surveillance to create the feeling of being watched – what Foucault has referred to as a disciplinary society. Such a society can be governed at a distance, allowing for more dispersed forms of social control that do not necessarily require a monolithic and homogenising state with a huge bureaucracy; instead, control is exercised through a variety of administrative systems, institutions and even discourses. Technologies of surveillance allow the activities of the state to become invisible, and its existence enters the realm of abstract ideas.⁶

Foucault elaborated on his conception of surveillance and the power that it produces in later writings, where he identified surveillance as being central to both liberalism and neoliberalism. For him, the panopticon was central to liberal government in that it disciplined individuals by subjecting them to constant visibility, which made overt violence unnecessary because they policed themselves. In other words, power was exercised in a ‘polite’ fashion. Government intervened only when individuals did not function according to established modes of behaviour.⁷ This form of surveillance is biopolitical in the sense that the body is controlled not through physical violence but through observation and classification, to enforce a liberal mode of governance. Biological features of the human body – such as people’s fingerprints and irises – as well as their movements, viewing and internet browsing habits, have become the stuff of surveillance, and are used to manage populations by analysing their present habits, identifying problem populations, and predicting future ones.⁸ This exercise of power is not exclusive to the state, however, but can be used by any institution that gathers and processes personal information. Google, for instance, can be considered an incredibly powerful biopolitical tool, as data generated from users’ internet searches is mined algorithmically and their profiles are sold to advertisers.⁹

The enormous value of Foucault’s conception of power is that it departs from monolithic, state-centric conceptions, which fail to explain adequately how social order is maintained in nominally democratic, non-authoritarian societies. Also, Foucault did not necessarily see power as a negative force in society; it could also be productive. Furthermore, by recognising the dispersal of power, he opened up the possibility that multiple sites of resistance to power might develop. However, the problem with Foucault’s conception of power is that it goes too far in depersonalising and decentralising power, in that it is everywhere and nowhere: this makes power infinitely more difficult to challenge. It also tends to ignore the ideological purposes of surveillance as a means of controlling those rendered surplus by neoliberal capitalism. This is not to say that Foucault did not have a concept of resistance; for him, resistance became possible only if one recognised the interests embedded in a variety of social practices. Simply pointing fingers at a single authority such as a government did not help one to understand how modern social orders actually worked.¹⁰

Another issue that Foucault’s conception of surveillance tends to ignore is that the surveillance capacities of the state have not necessarily replaced more overt forms of repression: on the contrary, at times both have been rolled out together and in fact they complement one another.¹¹ Surveillance may be used to identify populations that need to be contained by the use of more overt methods; for instance, policing decisions about protests may be either facilitative or militarised depending on the extent of the threat that the police identify through surveillance.¹²

THE POSTMODERN TURN IN SURVEILLANCE STUDIES

There are others who have argued that the panopticon is not an appropriate metaphor for contemporary societies. Drawing on the insights of postmodern studies – which problematise theories that advance one-sided narratives of how societies function – some theorists have pointed out that surveillance now takes place on a much more distributed basis than in the past, and that a state-centric approach to surveillance studies is no longer appropriate in societies where there is a huge diversity of surveillance actors. In fact, Kevin Haggerty has argued that the panopticon has been overused in surveillance studies, and has even called for the panopticon to be demolished metaphorically, to remove its grip on the field. He has pointed out that since Foucault’s groundbreaking book, surveillance has come to serve a variety of different functions, not just to police the activities of problem subjects. Surveillance is being used in education and medical treatment, too, so it cannot be said that surveillance serves the single purpose of social control. This means that a less negative, more neutral definition of surveillance is now required.

Surveillance is not necessarily directed at the poor or marginalised to maintain social hierarchies, either; it has become much more widespread. Surveillance is also being directed at non-human subjects, a development that unsettles the control argument, and this form of surveillance has even brought social benefits. Different social actors are also using surveillance, not just the state. The democratisation of surveillance technologies has also meant that ordinary citizens can use inverse surveillance, turning these technologies against the powerful and exposing their abuses of power: practices that have become known as ‘sousveillance’.¹³ Protesters, for instance, can use video cameras to record police violence. These capacities, when put in the hand of citizens, problematise the view that all surveillance is necessarily bad. Other examples of neutral definitions abound in surveillance literature.¹⁴ Haggerty has argued that surveillance scholars tend to avoid studying positive examples of surveillance, as their immersion in critique makes them blind to these phenomena.¹⁵

Different and even alternative metaphors to the panopticon have also been offered, based on the argument that Foucault did not foresee computerisation and the rise of consumerism, which have greatly expanded the scope for surveillance.¹⁶ These developments mean that there is not one single point where surveillance takes place, but multiple points. Thomas Mathiesen’s term ‘the synopticon’ – where the many watch the few by using the mass media – has become popular in surveillance studies, as it recognises these more recent developments. In other words, mass audiences are able to peer into the lives of celebrities and other public figures, placing them under unprecedented levels of scrutiny to which audiences themselves are not subjected.¹⁷ However, Mathiesen did not necessarily propose the synopticon as an alternative to the panopticon; in fact, the two are interlinked in that both are still structures of domination, and he was not necessarily optimistic about the mass media’s effects in society.

Surveillance in contemporary society has even been described as a surveillant assemblage, where surveillance practices do not take place in one part of society only, but where information is gleaned from multiple sources and locations.¹⁸ Drawing on the work of Gilles Deleuze and Felix Guattari, Kevin Haggerty and Richard Ericson have argued that discrete surveillance systems have converged, leading to a rhizomic levelling of surveillance. No longer is it conducted on a top-down basis and primarily by states – as the panoptic metaphor suggests – but diverse media can be connected to pursue surveillance for multiple purposes, and human surveillance efforts can be augmented by computers. Scattered centres of calculation, from police stations to banks, undertake surveillance, and as a result surveillance transcends the boundaries of separate institutions.¹⁹ Zygmunt Bauman and David Lyon have termed such surveillance ‘liquid surveillance’, or a form of surveillance that relies on the body being encoded by data and tracked through multiple data flows.²⁰ Deleuze himself recognised the fact that surveillance practices had changed from the early modern period about which Foucault wrote, in that computerisation had made constant surveillance possible at a reduced cost, allowing for continuous control rather than periodic examination. As a result, Deleuze argued, contemporary societies should not be described as disciplinary societies, but as societies of control.²¹ In other words, power over individuals is not necessarily exercised through fixed institutional structures, but through mobile and rapid ICTs, which enable control ‘on the go’: a form of control that is perfectly suited to societies defined by flexibility. At the same time, electronic tagging still allows surveillance to take place, to ensure that individuals are in a permissible place.²²

Other theorists have argued that Foucault’s ideas still remain highly relevant to today’s surveillance society, and that he would not have been surprised by recent attempts to universalise surveillance using the internet and other technologies. Far from being a technology linked to societies of control – which, according to Deleuze, have replaced disciplinary societies – the cellphone can be understood as a portable panopticon, in that it allows users to be tracked and monitored invisibly.²³ In fact, the Snowden revelations have brought Foucault back to the fore, with an emerging group of scholars arguing for his continued relevance. They maintain that there has been an unfair dismissal of his work, even though the panopticon may not describe the functioning of the internet with precision.²⁴ For instance, Gilbert Caluya has argued that what he terms the Deleuzian turn in surveillance studies – with its influential metaphor of the rhizomic surveillant assemblage – does not necessarily represent a significant break from Foucault, who recognised that a myriad forms of surveillance characterised modern society and rejected state-centric conceptions of power.²⁵ Furthermore, while the internet is a distributed medium, it is inherently surveillant in that in its current state it allows for the invisible filtering of information as an exercise of power. Its surveillant potential enables governments to shift their interventions from direct enforcement of the law to more invisible, decentralised, technologically based forms of enforcement. This fits Foucault’s conception of power very well. However, contemporary surveillance operates vertically, horizontally and diagonally, and people also participate in their own surveillance. This added dimension has led David Lyon to insist that researchers should take the cultures of surveillance seriously, as they need to understand the circumstances under which people willingly participate in surveillance activities through their social media and internet usage.²⁶

POLITICAL ECONOMY AND MARXIST THEORIES OF SURVEILLANCE

Political economy theorists have also argued that while contemporary surveillance takes place undeniably on a far more distributed basis than in the period Foucault wrote about, the means of surveillance are much more centralised than is often acknowledged. The internet – and the applications and infrastructure it relies on – is dominated by a few major companies, such as Google, Microsoft and Facebook.²⁷ They have co-operated with NSA surveillance through the surveillance programme known as PRISM, handing over internet data based on selectors that the NSA provided. The programme was apparently directed at foreigners in the main, but US nationals were caught in the dragnet too: a fact that the NSA denied initially, but was subsequently forced to admit.²⁸ Capital has an insatiable desire to control every aspect of human existence, to open up new vistas of profit-making and to minimise resistance to commodification: that is why it has moved into so many areas of life previously considered private, such as personal information. While the capitalist state incorporated elements of surveillance in earlier periods in history, technological developments associated with computerisation have allowed an unprecedented expansion of the surveillance capacities of the state. Since the 9/11 attacks on the US, public and private institutions have poured resources into enhancing their surveillance capabilities, while relaxing laws governing these capabilities on the pretext of national security. Surveillance has also been used to track groups that powerful interests feel threatened by, such as political activists and journalists. To this extent, the growth in surveillance technologies could be considered a surface manifestation of a deeper capitalist crisis, and surveillance has become integral to neoliberal state formation.

However, political economists have not paid sufficient attention to the fact that the relationship between the state and business is not one of straightforward co-operation, and the relationship between the political and the economic cannot be seen in narrow deterministic ways. Communications companies have begun to recognise that there is a business case for privacy; they have become more willing to push back against state surveillance practices. For instance, Apple has fought back against Federal Bureau of Investigation (FBI) attempts to make it unlock the cellphone of a criminal suspect.²⁹ However, the convergence of interests between the surveillance industry and governments is strong enough for Ben Hayes to refer to the existence of a surveillance-industrial complex.³⁰ Hayes argues that – far from being deployed in a sporadic fashion – surveillance technologies have become central to population control through policing, intelligence work, border control and other forms of population management. The industry and government are linked through security specialists shifting from the one to the other, leading to what has become known as the ‘revolving door’ syndrome. Governments also outsource key surveillance tasks to the private sector and may even fund the development of surveillance technologies from innovation funds, while the private sector relies on governments for contracts. The fact that both the military and the police have turned inwards and focused increasingly on domestic security – to the point where military, policing, and intelligence logics and technologies have converged – has opened up new domestic markets for surveillance. For instance, policing has become increasingly intelligence-led, with the result that intelligence is used not just to solve crimes reactively, but to anticipate likely crimes pre-emptively. ‘National security’ has become the legitimising discourse for these practices, which the security industry has a vested interest in talking up to expand markets. Key companies have expanded globally to provide surveillance equipment in markets other than their home market, and in consequence the globalisation, privatisation and securitisation of surveillance have become mutually reinforcing trends.³¹

DEFINING SURVEILLANCE

Having explored briefly some of the key theoretical trends in surveillance studies, we can now attempt a definition of surveillance. Needless to say, as befits an increasingly complex field, there are competing definitions of the word. The most significant differences of opinion turn on whether surveillance is an inherently negative phenomenon, or whether a less judgemental or more neutral approach should be taken to defining it.³² Thomas Allmer has even divided scholars into two schools of thought on the ‘problem’ of surveillance: non-panoptic and panoptic.³³ Proponents of the first approach have argued that surveillance can have positive benefits too. David Lyon has, for instance, identified watching over a child or taking care of a patient as positive examples of surveillance. Banks, too, put their customers under surveillance to identify suspicious transactions and prevent fraud. CCTV can be used to identify criminals and even deter crime. No one would argue that surveillance in these contexts is bad for democracy: on the contrary. In view of these examples and others, Lyon had defined surveillance as the many contexts in which information is gathered, stored and processed by a variety of state, commercial and administrative agencies.³⁴

Others have supported Lyon’s view that surveillance is not inherently bad. For Gary Marx, for instance, surveillance is about having regard to a person or to factors presumed to be associated with a person; an individual may be subjected to non-strategic surveillance – where information is gathered about him or her on a routine basis – or to strategic surveillance, where information is gathered consciously for particular ends, often negative.³⁵ Roger Clarke sees surveillance as the systematic monitoring of one or more persons through the collection of information about them, their activities and their associates.³⁶ By using such broad definitions, these theorists lean towards arguing that surveillance is an inevitable feature of modern bureaucracies. In fact, the practice has existed to different extents since time immemorial. In other words, it is impossible to conceive of societies that do not involve surveillance, neither is it desirable to do so.

Proponents of the second approach include scholars from more critical traditions, including critical political economy and Marxism, who have argued that surveillance is an inherently negative phenomenon: that is, it is about the collection and analysis of information primarily for repressive purposes. As a result, surveillance must be rejected because it impedes human emancipation. They argue that to portray surveillance as a neutral phenomenon depoliticises the problem. This portrayal is made possible by the fact that non-surveillant theorists tend to expand their definitions to include forms of information collection that should not be understood as surveillance practices at all. However, not all scholars who think like this are necessarily political economists or Marxists; that is, they do not necessarily take their analyses further and relate them to broader questions of class domination and capitalism.³⁷

One theorist who does is Christian Fuchs, a Marxist who argues that surveillance is linked inextricably to class domination, coercion and even violence. For him, an emancipated society must necessarily be a society that frees itself from surveillance: a struggle that should be linked inextricably to the struggle against capitalism and for socialism.³⁸ Benign forms of information collection (such as the collection of information about a person’s heart rate to monitor that person’s health or the usage of smog or air pollution early warning detectors) cannot be considered as surveillance as they are geared towards providing social benefits.³⁹ In response to assertions that surveillance can be (and is being) practised by a broader array of social actors – in other words, surveillance is being ‘democratised’ – Fuchs points out that the state and large corporations still dominate the surveillance terrain, which means that surveillance does actually manifest a panoptic character. In fact, the Snowden revelations pointed to a dangerous concentration of executive power. While surveillance technologies may have advanced and become cheaper and hence more accessible, to infer democratisation from these developments is technologically determinist and ignores questions of how capitalism’s unequal power relations continue to structure surveillance practices. While political and economic surveillance may appear to serve different purposes, ultimately their objectives converge on making citizens available for exploitation. The Snowden revelations have also shown how internet companies and the state collude to conduct mass surveillance, although their immediate interests may diverge at different moments in history. Fuchs considers the stretching of the definition of surveillance to include non-coercive information-gathering as dangerous, as it normalises surveillance, making it less possible to mount effective resistance to it, as even benign practices are included in its remit.⁴⁰

THE RIGHT TO PRIVACY AS AN ORGANISING CONCEPT

Much of the resistance to surveillance has been couched in rights-based terms, and more specifically as a violation of the right to privacy. The Snowden revelations caused outrage while they were being drip-released, as they showed just how much privacy Americans, and in fact many other citizens, had lost. The revelations triggered a huge amount of activism in defence of human rights, especially privacy. However, notwithstanding the din of outrage, a growing number of citizens appear to have become resigned to the idea of a surveillance state, arguing that privacy has become impossible to achieve in an increasingly digitised era: a phenomenon that Linna Dencik and Jonathan Cable have termed ‘surveillance realism’. This adaptation to the ‘reality’ of surveillance has been much more apparent in the UK than in America or other European countries such as Germany, where thousands of people staged mass protests in the wake of the revelations.⁴¹ ‘Surveillance realism’ has also been driven by the fact that more public and private companies are storing highly sensitive personal information in databases and mining it for a range of different uses; in fact, it is becoming increasingly impossible to transact with many institutions without being willing to part with such information. Many give up their right to privacy by handing over huge swathes of personal information to private technology companies like Facebook and Google, which then quarry this data for commercially useful information. As a result, the challenge has moved far beyond state-based forms of control. Over-sharing of personal information online has become a habit, one that feeds the surveillance beast even more. The selfie has become the leitmotif of a generation of internet users obsessed with constructing self-regarding, even narcissistic, digital identities. These practices have come to form an integral part of what David Lyon has termed ‘surveillance culture’, where people have come to accept, and even be complicit in, the collection and analysis of information about themselves.⁴² Until activists understand how deeply surveillance is embedded in everyday meaning-making practices of more and more people, it will be difficult, even impossible, to develop effective resistance strategies. This is because these strategies tend to focus on the legal or political dimensions of surveillance, without addressing the pay-offs that people receive for making themselves more visible (such as satisfying their need for connectedness and recognition in a world where social fragmentation has become more of a reality), and what they can do to change these practices to lessen the potential for abuse of their data.⁴³

Given the pervasiveness and seeming inevitability of surveillance, privacy sceptics have asked why, after all, one should worry about protecting privacy if one has not done anything wrong and has nothing to hide. The problem with this argument is that citizens will never know when they need the right to privacy. Privacy violations are also irreversible. Once something is known, it cannot be un-known. Change agents, such as political activists, are in particular need of the right to privacy, as they are more likely than most to challenge how power is organised in society. As a result, they are more likely to attract the wrath of the authorities, who may be very tempted to use the surveillance capacities of the state to track their activities.

While the definition of privacy is contested, the dominant conception that has found its way into legal instruments has been influenced by natural rights theory and positivism. This conception has been heavily influenced by Samuel D. Warren and Louis Brandeis’s claim that privacy is the ‘right to be let alone’.⁴⁴ The influence of this definition can be found in the UN Declaration of Human Rights, which protects the individual from ‘arbitrary interference with his [sic] privacy, family, home or correspondence, [or] to attacks upon his [sic] honour or reputation’.⁴⁵ Even the 1996 South African constitution includes a right to privacy that emphasises the individual’s right to his or her personal autonomy, free of intrusions or interferences in his or her private life. It also includes an informational right to privacy, where disclosure of information is prevented without the express and informed consent of the individual.⁴⁶

Elaborating on Warren and Brandeis’s asocial (even anti-social) definition, Alan Westin defined the right to privacy as ‘the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, whether in a state of solitude or small group intimacy or, when among larger groups, in a condition of anonymity or reserve’.⁴⁷ This definition pivots on the right of the individual to be an individual sans social interactions. In this definition, Westin identified four dimensions of privacy: solitude, where an individual can be free of observation by others; intimacy, where a person has a right to form and enjoy close social bonds; anonymity, where an individual can refuse to be identified by others; and reserve, where personal information about the individual is limited as he or she sees fit.⁴⁸ Westin was particularly vocal about the informational aspects of the right to privacy, and his views influenced a great deal of public policy work on privacy and data protection work, both of which came to equate privacy with the protection of personal information.⁴⁹ Charles Fried also offered an individualised, but much more truncated, definition of privacy, namely ‘[the] control we have over information about ourselves’.⁵⁰

These views can lead to the conclusion that privacy should enable a person to control information about himself or herself to achieve independence, self-reliance and, ultimately, self-determination. In fact, privacy can be said to have various functions, in that it allows a person to act autonomously, it allows for spaces in which a person can manage stresses away from the hurly-burly of the world’s pressures and engage in self-reflection about his or her relations with the world, and it allows for the protection of personal information so that the individual can decide what to share, and under what conditions.⁵¹ Privacy can also be said to involve four elements: bodily privacy, where a person has a right to decide what happens to his or her body; information privacy, where a person has a right to decide what information is released about him or her, and how; privacy of communication, where people should be guaranteed the right to communicate without fear of having their communications intercepted; and territorial privacy, where a person has a right to enjoy the privacy of his or her own home or personal space.⁵²

What unites these scholars is that they see individuals as the main rights-holders, a view that is based on the moral stance that emphasises the worth of the individual above that of the group. To that extent, their conception of privacy could be said to rest on liberal-democratic conceptions of the individual. Scholars from a variety of perspectives have critiqued this individualised concept of privacy for separating the public and private realms artificially, and playing down communitarian values such as sharing and other forms of social solidarity. Furthermore, this concept of privacy fails to see the right as a social right, or one that is mediated by questions of power. Articulating the right as an individual right is also self-defeating, as it opens up the right to limitation on the basis that it competes with other rights, and, when it clashes with rights that are more important to the collective, then the individual right must give way. On the other hand, if the defence of the right was embedded in broader questions of democracy and human rights (such as the right to form opinions free from state interference, or to participate in shaping a society’s political life), then it would be less vulnerable to limitation, as its broader societal value would be clearer.⁵³ As a result, more recent conceptualisations of the right to privacy have evolved from focusing on the individual to focusing on its social necessity, as a lack of privacy erodes trust in relationships, including those between individuals and organisations.

Rather than abandoning the right entirely, some have conceptualised the right to privacy in social terms – as being a common need – and have even argued for a sociality of privacy.⁵⁴ All individuals experience a need for minimum levels of privacy. In fact, democracy could not function without privacy, as people would become fearful about speaking out and holding the powerful to account, in case their words or deeds were being tracked. The boundaries between the self and society are also much more porous than Westin has made out, as the individual is defined through interactions with others, and privacy in its various forms is negotiated through these interactions. Furthermore, the problem should not be understood as being about protecting the privacy ‘bubble’ around a person from invasion, but rather about managing relationships between individuals and organisations in the realm of information: in other words, in this worldview a social relationship is assumed.

The growing problem of unwarranted surveillance, and the need to have a common instrument to fight it, have spurred scholars such as Colin Bennett to articulate a collective conception of privacy. In any event, he has argued, privacy has become a matter of public policy and has been recognised for its societal value for several decades now.⁵⁵ Even David Lyon, previously a privacy sceptic, has come to recognise the need for a common uniting concept in the struggle against surveillance, and privacy provides just such a concept.⁵⁶ If privacy is not reinvigorated, then societies could see surveillance grow relatively unchecked in spite of the right to privacy’s existence, as surveillance advocates would merely need to point to a social problem for the right to wither into insignificance.⁵⁷

But will emphasising the right to privacy’s sociality be enough to rescue it from irrelevance in the real world, weighed down as it is by concerns about terrorism and public safety, on the one hand, and unaccountable surveillance, on the other? What does policy need to look like to roll back attempts to turn societies into ‘surveillance societies’, where people cannot act or even think without the fear of being watched by powerful actors that may not have their best interests at heart? Social conceptions of privacy may still be deficient, as they may not focus on the social justice aspects of surveillance, such as social sorting on discriminatory grounds.⁵⁸ Privacy may even enable surveillance, as it can lead to organisations ticking privacy boxes while largely continuing with their practices unhindered: a problem that will be explored in more detail later on when the work of privacy regulators is discussed.⁵⁹ While emphasising the social content of the right strengthens the ability of privacy advocates to defend it against limitations on national security grounds, the problem with the ‘turn to the social’ in privacy studies is that it can be depoliticised. That is, it lacks a political perspective on the problem, and more specifically on power relations in society, and how the right will continue to be attacked, both as an individual and as a social right, unless the political interests at work in doing so are identified and addressed. A critical political perspective, including a Marxist perspective, is particularly important in this regard, as it is orientated to progressive social change; such a perspective should also address the limitations of a rights-based analysis. In other words, challenging unaccountable surveillance is not just about asserting a right to privacy, but also about changing how surveillant forms of power are organised in society. In this regard, Zachary Bruno has detected an absence of critique in the face of the massive expansion of the surveillance state: even the Snowden revelations did not cause US citizens to revolt en masse against violations of their rights. The sheer pervasiveness of the surveillance machinery, coupled with the absence of any critique of its dangers, means that alternatives remain difficult to imagine.⁶⁰

From a Marxist perspective, the concept of a ‘natural individual’ vested with pre-political rights is a historical product of capitalist property relations and forms of production. Under these conditions, these freedoms have been developed mainly within the relationships of the ruling class.⁶¹ In other words, in unequal societies the ability to individuate is available to a select few. In outlining the conditions for freedom of the working class, Marx and Engels recognised a difference between negative freedom and positive freedom. Negative freedom means the lack of forces which prevent individuals from doing whatever they want. Positive freedom is the capacity of people to determine the best course of action and the existence of opportunities for them to realise their full potential. For Marx, negative freedom was a bourgeois concept, as it is the freedom primarily of those who own the means of production. Positive freedom comes about through working-class struggles, which create opportunities for the class to develop as human beings. However, in spite of his critique about negative freedom, Marx argued that both negative and positive freedoms need to be advanced, as the former creates spaces for the latter to be advanced. When applied to privacy, this means that activists need to protect privacy as a negative freedom – that is, as a freedom to protect and control individual and collective spaces for reflection, discussion and debate from intrusive interference – while advancing conditions for the enjoyment of the right by the broader society.

Henry Giroux has made some interesting arguments about shifting the terrain on which the struggle for privacy is carried out, onto a more outrightly political terrain. According to Giroux, recent resistance strategies to the surveillance state have individualised the problem by reducing it to a struggle for privacy. He argues that this approach is limited, in that it fails to address the bigger context in which the surveillance state is expanding, which is the growth in the exercise of arbitrary power. To this extent, the surveillance state is linked intimately to other techniques to increase social control, such as the militarisation of policing, the arrest and harassment of activists, the stretching of the definition of terrorism to include acts of political dissent, and the growing use of prisons to control marginalised social groups, who are disproportionately working-class and black. Citing Ariel Dorfman, Giroux argues that surveillance is about increasing power and control, and not just about violating privacy. He also argues that resistance must move beyond resistance to surveillance as such, and be channelled into the building of popular movements that have the capacity to engage in collective struggles to challenge abuses of power and, ultimately, change how power is organised in society. This may well include the establishment of an anti-capitalist party, which politicises surveillance as a systemic feature of neoliberal capitalism, and which organises to end a system that has come to rely so heavily on surveillance to achieve social control of increasingly restive populations.⁶²

Another theorist who has grappled with how to conceptualise privacy from a Marxist perspective is Christian Fuchs. According to Fuchs, while it is important to defend privacy as a negative right, an alternative conception of privacy also needs to recognise the relations between privacy and private property, such as the use of the right to prevent the release of personal information revealing income differentials and prevent abuses of power. In order to understand these relations, Fuchs argues that it is necessary to consider privacy as a historical concept linked to the separation of social life into public and private realms. The private realm has become a realm of leisure and consumption, which creates demand for more goods and services and allows for a more effective reproduction of labour. Based as it is on liberal underpinnings, the dominant conception of privacy is highly individualistic. In order to develop the radical content of privacy, it is necessary to reconceptualise it as the right to resist surveillance by dominant groups, thereby strengthening the collective strength of subaltern groups. But in order to do so, privacy activists must emphasise the privacy rights of those at the bottom of the power structure, and they should not allow those who exercise power to conceal themselves.⁶³

CONCLUSION: DEFINING SURVEILLANCE AND PRIVACY

Based on this foregoing discussion, my working definition of surveillance is the collection and analysis of information and the accessing of a person’s physical characteristics for the purposes of social control. Other forms of information collection and storage do not, to my mind, qualify as surveillance. Separating out these two practices is important, as it allows a more focused analysis of the problem, which is necessary for the development of appropriate resistance strategies.

When it comes to defining privacy, Fuchs’s orientation towards those aspects of privacy that allow workers, the unemployed and other subaltern groups to exercise their agency and gain social power is important, as it provides a conceptual basis for developing strategies and tactics for effective resistance, as these will move beyond addressing privacy violations as the end point of activists, to regarding them as problems epiphenomenal to a whole system of exploitation and oppression that needs to be changed if privacy is to be realised. Requiring privacy activism to occur within the context of an anti-capitalist party – as suggested by Giroux – is rather restrictive, and even dogmatic, as it prescribes the organisational form that struggles for privacy should take. Anti-capitalist parties are also few and far between in the current political period. Instead, these struggles should be waged wherever existing struggles against oppression and exploitation are taking place, and in the organisational forms that make the most sense to those engaged in them: in other words, privacy work should be ‘mainstreamed’ into these struggles. Privacy activists also need to identify the social forces that are most likely to challenge oppressive and exploitative systems successfully, and prioritise their collective efforts as the most important agents of change.