image by imp kerr

We have not consented to our own constant surveillance, even if the way we live has produced it

One photo from the sometime halcyon days of Occupy Wall Street has come to haunt me. The image, which was used as the cover for the second issue of Tidal, Occupy’s theory journal, at first glance seems to capture a trenchant insurrectionary tableau. A massive mob of protesters appears on the cusp of breaking down a fence, held up by a measly line of riot cops defending the emptiness of Duarte Square, a drab expanse of concrete in downtown Manhattan. Look closer, though, and a different scene comes in to focus: No more than a scattered handful of protesters are actually pushing against the fence. The rest of the crowd, pressed tight against each other, hold smartphones aloft, recording each other recording each other for the (assumed) viewers at home. The fence of Duarte Square was barely breached that December day.

Over two years later, and nine months since Edward Snowden’s NSA leaks have highlighted totalized surveillance as an undeniable fact of the American now, one wonders whether such an image of mutual co-surveillance would make it onto the cover of a self-identifying radical magazine.

For me, the photo captures the problematic, near knee-jerk proclivity many participants had to live-recount every action over smartphones, with the idea that this was inherently bold and radical, taking the narrative of protest into our own hands, our own broadcast devices, refusing reliance on media institutions. Regardless of where you stand on the question of whether social-media platforms like Twitter have helped, hindered, or shaped recent protest, the Tidal cover image carries a different valence in light of the Snowden revelations. The smartphones in that photograph were not only a hindrance to the crowd’s purported effort to swarm Duarte Square; they were, of course, surveillance devices too. The photo’s caption could well read: Unwitting footsoldiers of the surveillance state watch each other for the state.

In that image—where a desire for insurrectionary freedom is paired with advanced technocapitalism’s ­surveillance-control apparatus—our current problem is crystallized. The devices we rely upon to communicate and gather information and build the solidarity necessary for contemporary protests also offer us up as ripe for constant surveillance. The surveillance state could not be upheld without its always already trackable denizens. To sidestep our tacit complicity in this would be to fail to recognize how deep it runs—it’s how we live. As my Salon colleague Andrew Leonard noted, “In 2013, the negative consequences of our contemporary lifestyles were impossible to ignore.”

But to assert our consent to this circumstance, however, would be unfair—in many ways, we have no choice. The problem of our complicity and consent in a state of totalized surveillance is intractable. But that doesn’t mean we should ignore it.

Revelations about mass corporate-government spying have given rise to a peculiar sort of popular crisis. Who is to blame? Where are the bad guys? How do we fight back? Popular outrage following the NSA revelations has sought an object, a vessel, a villain. Be it Director of National Intelligence James Clapper, NSA director Keith Alexander, Google, or the PRISM program, we look to blame something we can isolate and locate. But efforts centered on top-down NSA reform and demands for tech giants to be more transparent have largely missed the nuance and gravity of what’s at stake.

Bipartisan lawmaker cohorts have demanded an end to the NSA’s bulk collection of Americans’ communications data; the preposterously named USA Freedom Act is gaining traction primarily on this point. The White House assembled advisory committees who duly issued lengthy reports and promised more reviews to come. The president gave a speech about reform straight out of the POTUS handbook, immediately enacting minute policy change to earn public “confidence,” while leaving the underlying state of totalized surveillance structurally unchanged. Perhaps worst of all, scrambling for position as the “good guys,” tech leviathans including Google and Facebook have pushed for greater transparency. Google’s old, informal slogan “Don’t Be Evil” would more ­appropriately read “Be Evil, But Be Transparent About It.”

The boldest executive and legislative reform even notionally on the table would see dragnet hoarding of our communications moved into the hands of telecom firms, or some sort of private third party, but in NSA-­surveillable form. The specifics of where these databases would be stored if taken out of NSA hands is not yet clear. But one thing is certain: All communications would remain available for government perusal. Reformers rightly want state spy agencies to provide at least some grounds for suspicion before gaining direct access to phone and online communications records, but what those grounds might be is troublingly unclear (and would likely remain as opaque to the public as the operations of national security tend to be). And to be sure, the corporate-government surveillance nexus is going nowhere—the best these reform efforts have to offer is a surveillance state with mildly different contours.

By focusing on legible seats of power, activist groups and outraged political players have largely sidestepped the question of how surveilled subjects uphold—cannot but uphold—their position as surveilled. It is perhaps unbearable to consider that modes of surveillance undergird the way we live in contemporary capitalism. A state of totalized surveillance serves government interests (in social control) and corporate interests (in an enumerated and trackable populace). And it has become a significant source of growth and value within it. But we who use and rely on the devices that render us ripe, surveillable subjects are trapped by the autonomy they also promise us. As poet George Oppen put it, “We have chosen the meaning / Of being numerous”—amassing as individuated, traceable nodes in a network.

The story of this epoch of surveillance is in some ways a formal tragedy, in which those who came of age in the tech boom star as a hydra-headed tragic hero. True to form, the tragic hero was brought down by hubris—our blind embrace of technology, too impressed with our own savvy to see the social control.

A troubling anecdote picked from Snowden’s document trove tells this story as synecdoche. An unnamed NSA analyst produced a smirking slide show for fellow agents about social control and Apple users. One slide recalls the famed 1984 Super Bowl commercial from Apple, announcing the birth of the first personal computer. In the ad, seated, uniformed gray men sit in regimented rows as an Orwellian Big Brother character booms at them through a huge screen overhead. But then, an athletic women in bright orange minishorts bounds forward, evading the grasp of riot police, to swing a sledgehammer into the screen, smashing Big Brother’s visage and freeing his enthralled subjects. “Apple Computer will introduce Macintosh. And you’ll see why 1984 won’t be like 1984,” the ad proclaimed.

The next NSA slide projected a photo of Steve Jobs some 30 years later, with the accompanying text: “Who knew in 1984 … that this would be big brother … and the zombies would be paying customers?” And the NSA agent was correct: We didn’t need an Orwellian Big Brother. Political management, as Foucault had well predicted, would manifest instead through “tiny, everyday, physical mechanisms … systems of micro-power” that produce and are reproduced by “docile bodies.” While providing an unending font of content, information and opportunity for communication, the apparatuses of technocapitalism at the same time produce docility by reproducing users as networked subjects—a tracked, countable, individuated populace that, by virtue of these qualities, upholds conformity.

While we are unquestionably active participants in upholding a surveillance state, to suggest that we are therefore consenting would be to overstate our choice in the matter. Though we are not all inherently reliant, as a point of economic necessity, on surveillance-enabling devices and interfaces, participation in a surveillance state is inescapable for those who abide by the social and economic spirit of the now, because the networks and interfaces born of the tech boom have become the stage on which the social and commercial—even the political and the revolutionary—is enacted in contemporary capitalism.

Our engagement with the devices of the surveillance state goes deeper than the technological tools we use—­indeed these are not simply tools, but apparatuses. In “What Is an Apparatus?” (2009) Italian philosopher Giorgio ­Agamben argues that “ever since Homo sapiens first appeared, there have been apparatuses, but we could say that today there is not even a single instant in which the life of individuals is not modeled, contaminated, or controlled by some apparatus.” For Agamben, an apparatus is not simply a technological device, but “literally anything that has in some way the capacity to capture, orient, determine, intercept, model, control, or secure the gestures, behaviors, opinions, or discourses of living beings.” As such, a language is an apparatus as much as an iPhone. He writes of his “implacable hatred” for cell phones and his desire to destroy them all and punish their users. But then he notes that this is not the right solution. The “apparatus” can not just be isolated in the device, say the smartphone, because apparatuses are shaped by and shape the subjects that use them. Destroying the apparatus would entail destroying in some ways the subjects that create and are in turn created by it.

A mass Luddite movement to smash all smartphones, laptops, GPS devices, and so on would ignore the fact that it is no mere accident of history that millions of us have chosen to live with and through these devices. These ­devices require and in turn produce trackable, numerable and, therefore, surveillable subjects. As such, technocapitalism is a situation in which the question of whether surveilled subjects consent to their own surveillance is moot.

Which is not to say that anger should not be directed at the corporate-government subterfuge that has undergirded the post-9/11 development of vast spy dragnets. Quite evidently, we did not consent to these bulk collections by government agencies; we didn’t even know about the programs. Just this month, the beleaguered James Clapper admitted that the NSA should have been more open with the public about the ubiquitous hoarding of their communications. “If the program had been publicly introduced in the wake of the 9/11 attacks, most Americans would probably have supported it,” he said. But Clapper cannot help but resort to a perverse conditional logic in which the public would have consented to what they could not, in fact, consent to. Clapper’s post hoc assertion that the public would have agreed to mass government surveillance, had they been given advanced warning, is untestable—we can’t go back to that moment. As Ben Wizner, legal adviser to Snowden and the director of the American Civil Liberties Union’s Speech, Privacy and Technology Project commented in response to Clapper, “Whether we would have consented to that at the time will never be known.” We have not consented to our own constant surveillance, even if the way we live has produced it.

The spy chief’s remark truly reflects the issue at hand: We only become aware of the notion that we might have consented or refused to do so in the past tense, when surveillance technologies are so tightly sewn into—and give shape—to the fabric of daily life. The state, in its rhetoric at least, has thus de facto solved the problem of consent when it comes to surveillance: not because consent has been expressly or tacitly given, but because it has been mooted as a fulcrum. The challenge, then, given our hopes and our hubris, is to experiment with whether we can live together, as numerous, without the inescapable fact of being enumerated.