Little Brother Is Watching You

In the post-9/11 atmosphere of ever-increasing government secrecy and surveillance, the real surprise to me about the Department of Justice’s secret snooping on Associated Press phone records was that it would be such a surprise, given the visibly vast security and intelligence apparatus erected by the U.S. government over the past decade (admirably totted up by Dana Priest and William M. Arkin in the 2010 Washington Post project Top Secret America and criticized by Glenn Greenwald and others).

But the same technological advances that have empowered the rise of Big Brother have created another wrinkle in the story. We might call it the emergence of Little Brother: the ordinary citizen who by chance finds himself in a position to record events of great public import, and to share the results with the rest of us. This has become immeasurably easier and more likely with the near-ubiquitous proliferation of high-quality recording devices. (As I learned after publishing this, the term had been coined earlier, and Cory Doctorow used it in 2007 for his book of the same name.)

The era of Little Brother was perhaps inaugurated in November, 1963, with the Kodachrome II 8-mm. film of John F. Kennedy’s assassination inadvertently captured by the Dallas clothing manufacturer Abraham Zapruder. George Holliday’s videotape of the March, 1991, beating of Rodney King in Los Angeles, and Scott Prouty’s forty-seven-per-cent video, which arguably cost Mitt Romney the Presidency last year, fall into the same class.

There is a surprisingly rich and dynamic academic literature developing around the concept of “sousveillance,” a term coined by the University of Toronto professor and inventor Steve Mann to describe privately made recordings that can serve as a counterweight to institutional and government surveillance. Mann is famous for approaching these questions from the perspective of wearable computing, a field in which he is one of the earliest pioneers; his apparent eccentricity is belied by the gravity and lucidity of his writing, which is heavily influenced by Foucault’s views on panopticism:> One way to challenge and problematize both surveillance and acquiescence to it is to resituate these technologies of control on individuals, offering panoptic technologies to help them observe those in authority. We call this inverse panopticon “sousveillance” from the French words for “sous” (below) and “veiller” to watch.

Sousveillance is a form of “reflectionism,” a term invented by Mann (1998) for a philosophy and procedures of using technology to mirror and confront bureaucratic organizations. Reflectionism holds up the mirror and asks the question: “Do you like what you see?” If you do not, then you will know that other approaches by which we integrate society and technology must be considered.

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A new and notable practitioner of sousveillance emerged last month: the University of Pennsylvania junior Aakash Abbi. On April 22nd, Abbi attended a talk given by the noted Republican pollster and strategist Frank Luntz. The talk was hosted by a campus club, the College Republicans; it was publicized on Facebook, and was open to the public. There were around a hundred people in the audience. After the presentation, there was a Q. & A.: Luntz was asked about our current political polarization, and, according to Mother Joness version of events, he “replied that he had something important to say on this matter but was apprehensive about speaking openly; doing so, he explained, could land him in trouble.”

Abbi told me what happened next: “[T]here were some shouts from the crowd, and people wanting [Luntz] to be taken off the record. So he asked any reporters to raise their hands, and there was only one reporter present, a staff reporter from the Daily Pennsylvanian, our school paper; he identified himself, and was asked if he would mind going off the record. He said absolutely not, and he turned off his recording device, and that’s about when I turned mine on.”

Luntz proceeded to speak out against Rush Limbaugh and the right-wing noise machine. “[T]hey get great ratings, and they drive the message, and it’s really problematic. And this is not on the Democratic side. It’s only on the Republican side…[inaudible]. [Democrats have] got every other source of news on their side. And so that is a lot of what’s driving it. If you take—Marco Rubio’s getting his ass kicked. Who’s my Rubio fan here? We talked about it. He’s getting destroyed! By Mark Levin, by Rush Limbaugh, and a few others.”

Abbi made his recording of Luntz available to Mother Jones, and David Corn published it with his comments on April 25th. Luntz’s reaction to the publication of his own words was remarkable. The master of messaging told the Daily Pennsylvanian that he “would never return to speak” at his alma mater after the incident, that he would discourage others from speaking there, and that he would not renew a scholarship established in his father’s name for students to travel to Washington, D.C. (I asked Penn administrators for details about the scholarship—the amount, the number of recipients, etc.—and was told that they “had no information to offer” about it.)

There followed a considerable fracas in the Daily Pennsylvanian, both pro- and anti-Abbi, a bit of which spread to national political blogs. Arielle Klepach, President of the College Republicans, opened the proceedings: “Mr. Abbi’s deplorable actions are an embarrassment to not only our organization, but also our University. While identifying as Republican is no easy feat at Penn, our organization strives to foster an intellectually and politically safe environment for those who do not belong to the overwhelming political majority on this campus.”

Abbi remains convinced he did the right thing by making the tape public. “I have been accused of harming the future of discourse at Penn,” he told me. “If anything, I’d think I would have helped it. Because if [there are] politicians or public figures who don’t want to speak openly, who fear they are at risk if their words are being recorded by people who want to hear them, then good riddance. We don’t need those people at our campus. We need people who are going to advance the discussion.”

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The matter of “off the record” is a tricky one, particularly in the context of politics, as evidenced by the Supreme Court’s 5–4 split decision in the case of Cohen v. Cowles Media Co. (1991). Dan Cohen, a Minnesota Republican associated with the 1982 gubernatorial campaign of Wheelock Whitney, was in possession of mildly damaging information regarding Marlene Johnson, the running mate of Whitney’s opponent, Rudy Perpich. Cohen offered this information to reporters at three newspapers on condition of anonymity. Editors at two of the papers decided to burn their source, and Cohen was fired from his job the next day.

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The Court’s decision relied on the doctrine of promissory estoppel, or, in plain English, promise-breaking: the Court’s conservatives held that the promise of “off the record” is a contractual matter of information in exchange for anonymity. On the other side of the question, Justice Harry Blackmun wrote in his dissent that it is a violation of the First Amendment “to penalize the reporting of truthful information regarding a political campaign.”

This 1991 decision essentially means that a promise of “off the record” is legally binding, but it must be entered into by both parties in advance. Presumably, Luntz would have had to secure a separate agreement from each of the attendees at his Penn talk in advance in order to be able to claim he’d been wronged based on a promise of anonymity.

But was it legal for Aakash Abbi to record Frank Luntz without his explicit permission? I asked Max Kennerly, a Philadelphia trial lawyer, about this. He replied:

The federal Electronic Communications Privacy Act and Pennsylvania’s Wiretap Law both protect from recording oral conversations “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation,” a formulation that is both maddeningly vague and sublimely elegant. On the one hand, it gives almost no advance notice to people trying to figure out if a given conversation will be protected. But, on the other hand, it recognizes that the nuances of each given situation (and of changing and varied social norms) preclude us from coming up with fact-specific rules, and so the law gently instructs juries to evaluate whether the speaker exhibited an expectation of privacy and whether that expectation is one that society is prepared to recognize as reasonable. (That latter language comes from the opinions themselves; see, e.g., Com. v. Blystone, 549 A. 2d 81—Pa: Supreme Court 1988).

It’s clear that the “expectation of privacy” would vary a great deal based on circumstances, but the matter of “changing and varied social norms” bears further scrutiny. Is the proliferation of recording devices altering our concept of privacy itself? I asked Abbi, who is a P.P.E. major (Philosophy, Politics, and Economics), whether he thought the “expectation of privacy” had changed in his lifetime. His response was striking:

People my age know that there are probably twice as many photos on the Internet of us, that we’ve never seen, or even know were taken, as there are that we’ve seen. It’s a reality we live with; it’s something people are worried about, and try to have some control over, say by controlling the privacy on their social media accounts.

But at the same time, people my age tend to know that nowhere is really safe, I guess. You’re at risk of being recorded all the time, and at least for me, and I think for a lot of people who are more reasonable, that’s only motivation to be the best person you can be; to exhibit as good character as you can, because if all eyes are on you, you don’t really have the option to be publicly immoral, or to do wrong without being accountable.

Kennerly had a different response to the same question:

In many ways, the ubiquity of recording devices (we all have one in our pockets) doesn’t really change the analysis: you’ve never had the guarantee, by law or by custom, that a roomful of strangers will keep your secrets, even if they say they will. Did Abbi violate some part of the social compact by deceiving Luntz? In my opinion, yes. But falsity has a place in our society, and, as the Supreme Court confirmed last summer in United States v. Alvarez, certain false statements (outside of defamation, fraud, and perjury) can indeed receive First Amendment protection. As Judge Kozinski said in that case (when it was in front of the 9th Circuit), “white lies, exaggerations and deceptions [ ] are an integral part of human intercourse.”

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Let me quote Kozinski at length:

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”)….

An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal, and when to deceive. Of course, lies are often disbelieved or discovered, and that, too, is part of the push and pull of social intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?

As Big Brother’s threat to our privacy grows ever larger, so does Little Brother’s reach expand, with a defining awareness that public spaces are fair game for all, and a corresponding awareness of what really constitutes, or should constitute, our private spaces and private communications. When we are in the street, we all belong, in some sense, to everyone.

Illustration by Tom Bachtell.