Surveillance Is Still About Power

Since the Snowden revelations in 2013, surveillance has gone from a somewhat arcane term of art used mainly by scholars, spies, and tinfoil hat types, to a household word that now comes up in conversations on such far ranging topics as national security, law enforcement, advertising, education, health and fitness, and even toys. While the general concept appears straightforward — one party watching another — the conversation can quickly become bogged down in technical details that can easily confuse non-experts. But what we should not lose in the noise is the fact that surveillance is, at its core, about the establishment, use, and maintenance of power, a relationship Michel Foucault understood well.

Using the words “surveillance” and “power” in close proximity tends to make people uncomfortable, as it can inspire dark images of dystopias, real and imagined. For this reason, we often spurn this general association as alarmist or reactionary, and prefer instead to reserve this assessment to government abuses either long past or so egregious to make them highly unlikely, especially within western democracies. Post-Snowden, this aversion has been weakening, however, as our general awareness of sweeping government surveillance programs — particularly those that exploit technologies that we increasingly rely upon — grows. Many who had never given the topic more than a fleeting thought are now beginning to seriously ponder topics like encryption, dragnet data collection programs, and the meaning of privacy in a digital world. And while it is important — and encouraging — to have a broader discussion of these issues, we should not let the luster of high-tech surveillance blind us to the more prosaic, often very low-tech, surveillance programs that many are forced to live with on a daily basis.

As Alvaro Bedoya and Dorothy Roberts and I recently pointed out, even the most common surveillance practices have a power dynamic that too often shifts from generally beneficial to abusive. Police patrols enhance public safety, but police stop-and-frisk programs have been shown to enable racial abuse. Health data can be used to fight disease and prevent epidemics, but can also be used to selectively deny government benefits to disenfranchised populations.

These are everyday examples of surveillance, and they all involve the use — or abuse — of power. But these examples are often invisible to those of us lucky or privileged enough to avoid its gaze. Widespread stop-and-frisk programs are not deployed in the suburbs. Mandatory drug testing is only required for certain government benefits, although nearly all of us receive these benefits in one form or another. And those of us with Anglo-Saxon or northern European names are rarely (if ever) randomly selected by airport security for “enhanced screening procedures.” These examples illustrate the existence of a structural system of surveillance where certain segments of the population feel its weight, while others are free to ignore its existence.

Michel Foucault was a prominent thinker on the topic of power and its use. Part social scientist, part psychologist, part historian, and part philosopher, Foucault approached the problem by examining the history of social control — in all of its forms — of populations by governments. From the treatment of mental illness, to the broader study of medical classification, to the history of state punishment and discipline, to the study of modern sexuality, he developed a theory wherein power structures provide the framework for much, if not all, of social life.

Closely associated with the critical theory movement, Foucault’s reputation suffered when these schools of thought were criticized and rejected as too academic, too opaque, and too smug by those who sought a return to classical market-based thought, especially in the United States. The result has been the classification of Foucault as persona non grata in certain academic (and non-academic) circles. But to dismiss his work in this area is both premature and counterproductive, and our growing awareness of surveillance of all kinds warrants giving Foucault another look.

Why? Because Foucault’s framing of power relationships can give us the tools to better understand and evaluate the surveillance choices we make as a society. Our most commonplace policies regarding public safety, public health, and public welfare, as seen through the lens of Foucault’s framework, can reveal just how much of this structure is about power and the management of population segments.

Foucault understood and described both the productivity of power (the fact that power relationships are necessary to the modern society) and subjectivity through power relations (the impact of these power relationships is not limited to repression, but includes also the intent to teach, to shape conduct, and to install and enforce identities, and can result in all of the above). Surveillance can take many forms, but irrespective of how extraordinary or common a particular manifestation may be, the management of a power relationship is at its core. Opening our eyes to these implications can only help in our comprehension of surveillance in all its forms and effects.

By applying this principle, we are able to better understand the full impact of our policies. When police departments tout “hot spot policing” algorithms as efficiency boons, we can better evaluate who actually bears the brunt of this burden shifting. When our state governments approve warrantless, unannounced home searches for aid program recipients, we can better examine the true nature of these programs.

And when federal law enforcement agencies demand “backdoors” to the encryption programs that protect our digital data, we can better understand the context of power relationships that govern every surveillance program, and begin making policy decisions that benefit and protect us — all of us. 

About the Author(s)

Jeffrey Vagle

Lecturer in Law and Executive Director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Law School Follow him on Twitter (@jvagle).