18 Pages Posted: 25 Jul 2015 Last revised: 16 Jul 2016

Date Written: July 23, 2015

Abstract

This essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technology, and put market pressure on companies not to cooperate with law enforcement.

In practice, however, many of these avenues turn out to be limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn the citizen into a target. Citizens can extract promises from companies to push back against government surveillance on their behalf but have no recourse if these promises are not enforced.

By way of method, this essay adopts James Gibson's influential theory of affordances. Originating in psychology, and famous everywhere but law, affordance theory has evolved into a general method of inquiry with its own useful vocabulary and commitments. This essay hopes to leverage these concepts to lend structure to an otherwise haphazard inquiry into the capability of citizens to perceive and affect surveillance. The essay meanwhile contributes to affordance theory by insisting that law itself represents an important affordance.