Computers, Privacy & the Constitution
Influencing an Electorate of Consumers: Pop Culture Against a Police State


The Constitution is no longer a viable safeguard against the encroachment of a police state. As discussed in class, even the Originalist justices on the Supreme Court – supposedly those most fervently against the State stepping beyond the bounds of express Constitutional authority – view “searches” through a largely obsolete lens relying on physical intrusion and tenuous metaphors. Further, there is no sign that the current panel of justices would hold that “free speech” means “freedom from others monitoring such speech,” especially after the death of Scalia. The assumption that courts will protect the rights we take for granted goes hand-in-hand with the idea that it is unnecessary to fight for those rights. However, when people begin to see that their best defense against tyranny is in their own hands, it can empower them to choose freedom over mass surveillance. The challenge, then, is to inform people of the capabilities of our government’s surveillance apparatus, how those powers are abused, and how people can flex their rights without losing out on all the benefits of a digital society. And we are already seeing creative minds setting their sights on the NSA programs unveiled by Snowden, and most do not paint a pretty picture.

Divide and Conquer

Campaigning to change popular opinion on the State spying on its own citizens has the benefit of opening a two-front war: one against questionable government spying, and the other against the corporate interests that hand over their consumers’ information at the slightest pressure. Further, the fragile alliance between profit-seeking entities and a sprawling intelligence apparatus is dissolved as soon as dedicated consumers demonstrate monolithic opposition to surveillance. We are already seeing the results in the current Apple case – at least in public, corporate interests are refusing to cooperate with intelligence agencies. While Apple, Google, Amazon, and other mainstream tech companies’ true motives are inherently not aligned with consumers’ privacy interests, their marketing departments force them to react quicker to public demands than bureaucratic government institutions ever would. And even if the skirmish between Apple and the FBI is a charade in the scheme of widespread government and private surveillance, the expenditure of resources against each other suggests a chilling of the relationship between the tech behemoths and State interests that threaten citizens’ privacy. In a democratic government, the long-term policies of the State adapt to represent the interests of the electorate (at least in theory); but in the short-term, strategically turning businesses’ against the government by threatening those businesses’ bottom line can serve to slow down the encroachment of a police state.

Why did we tolerate a surveillance state?

So what could actually effect a change in Americans’ attitudes towards mass surveillance sufficient first to encourage tech companies to lay off invading customers’ privacy, and second to set the groundwork for long-term change at the legislative and executive levels? For generations, America has glorified action heroes who refuse to play by the rules. From Bond to Batman, our popular culture has been dominated by individuals who are faced with an evil so dire and catastrophic that annoying obstacles such as “rights” simply must be abridged – the American hero’s modus operandi has always been “shoot first, get chewed out by internal affairs later.” Even when confronted on-screen with the moral qualms behind their actions, the protagonists in these films often show indifference after cursory consideration. In 2008’s The Dark Knight, for example, Batman used a surveillance system that was able to hack into “every cell phone in the city” in order to locate a domestic terrorist (eerily foreshadowing the Snowden revelations of 2013). Despite the machine eventually being destroyed, the message was clear – if the threat is grave enough, as deemed by the man in charge, any means can be used to stop it.

Winning Popular Opinion

Ever since the Snowden leaks, however, popular television shows have devoted significant airtime to plotlines revolving around NSA surveillance – and much of it has been negative. In The Good Wife, one story arch focused on NSA contractors – portrayed as bored, voyeuristic millennials – who listened in on the protagonist’s intimate calls and often joked about them as one would about celebrity gossip. The latest season of House of Cards featured sitting US President Underwood – one of the most reviled depictions of Machiavellian realpolitik – shamelessly plotting to use the NSA to gain advantages over the opposition candidate. And in the final season of Parks and Recreation, a tech company scanned citizens’ emails in an effort to bribe them to accept a project that would benefit the company, with the protagonists fighting the company in court directly over its use of consumer data. Acceptance of mass surveillance relies on the assumption that those in charge will protect our rights. However, when we are bombarded with images of rampant abuses of power – even if they are fictional – we are reminded of the fact that government, like fire, is a troublesome servant and terrible master. With an audience currently coming-of-age, the zeitgeist is turning to value nuance and individual rights in how we utilize modern technology. Like how Modern Family and a plethora of pro-gay Hollywood films and television shows influenced the debate over gay rights, entertainment media is turning public opinion against the surveillance state. According to a January 22, 2014 Pew Research survey, 57% of Americans aged 18-29 believe Snowden’s leak was a positive act – higher than for any other age group. This is a generation that did not grow up idolizing Dirty Harry Callahan, but rather Harry Potter; they are consumers of entertainment that is hesitant of power rather than blindly trusting the State. While newspapers die from a changing media landscape, entertainment media more and more fills in the gaps in our conscience – and if the current obsession over hacking, tracking, and State spying is any indication, the new audience will be less receptive to the old arguments used to justify horrendous breaches of rights.

Perhaps this is not ironic. Maybe the actual proposition is that vernacular, commercial culture is a tool that can be used to change an attitude that you think stands in the way of surveillance capitalism and Internet-enabled state power being magically dissolved by public opinion. And that the reason younger people show less tolerance for surveillance is the content of Harry Potter. Or maybe this is an idea I expressed as a joke being taken further as a joke.

The route to improvement is to show why, if this is analysis rather than cuteness, the analysis has bite. The closest thing we have to an argument here is one sentence arguing that "Hollywood" changed American attitudes about "gay rights," and presumably the Fourth Amendment can be restored in the same way. One might have thought it was peoples' children and friends coming out, along with lots of litigation, and that "Hollywood" mostly just followed along selling products. But presumably there was some evidence of causality that you were depending on, and which could be analogized to the current situation by a series of moves that you were taking for granted we too could see. Instead, the current draft just drops a bunch of pop references, and assumes that the direction of causation can be directly inferred. No such assumption is possible, and plot summaries aren't political analysis.

I doubt you're right: I think if this is serious it is profoundly deluded about the nature of commercial popular culture. But if you are right, there should be an argument to present that involves more political sociology and less TV name-checking. Can you frame it?

-- JakeLewis - 14 Mar 2016


Webs Webs

r2 - 08 Jul 2016 - 20:36:51 - EbenMoglen
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