Computers, Privacy & the Constitution

Breaking Down the Technological Panopticon:

Tracing the Evolution of Surveillance as Culture and Reaching Beyond Fourth Amendment Discourse

-- By KeunjungCho - 06 Mar 2015

An Overview

The past two decades have been replete with discourse about the growing lack of privacy that has come to accompany the development and use of digital technology.

To begin your essay by telling the reader that there have been twenty years "replete with discourse" is not perhaps the best way to make her want to read further. Start with your idea, simply and forcefully expressed, and you are putting your best fruit on top of the basket.

In today’s world, it is common knowledge that the average internet user (which actually refers to the average person in the United States) is subject to (and subjects himself or herself to) a staggering amount of data mining and horrific invasions of privacy on a daily basis; whether making payments by credit card, writing an email through an account such as gmail, or even just surfing the web, John Doe is leaving a trail of his personal information so as to be seen by both private businesses and the government; he is being watched as both a citizen and as a consumer and all of this recorded information can be used against him at any time. He not only gets filmed by hidden cameras at building entrances and elevators; he has come to expect it and has thus accepted this lack of privacy as an inevitable consequence of operating in the modern world. All of this is so commonplace that neither John Doe nor most readers of articles about him are surprised by the pervasiveness and reach of today’s digital surveillance.

Perhaps more disturbing than the prevalence of such privacy intrusions is the evolution of public attitude. While the idea of mass surveillance was, during the heyday of Foucault’s “Panopticism” (1975), seen as shameful and immoral, subsequent decades have not only cooled off their objections but also seem to have forgotten why Foucault’s metaphor was both powerful and controversial.

Perhaps the 20th century offered better reasons than Michel Foucault for being concerned, and therefore perhaps something more important than he is being forgotten?

Remembering the original Benthamite ideas behind the Panopticon, looking at Foucault’s take on them, and examining the developing presence of an Orwellian “Big Brother” in American life, I hope to shed some light on the effects and Constitutional implications of surveillance technology.

Is this the idea that should have been in the first sentence: Bentham, Fourcault and Orwell are the important guides to the "Constitutional implications of surveillance technology"? Seems to me they could hardly be more than expensive-seeming decorations.

Constitutional Legalese: Going Beyond “search and seizure”

In contrast to the average Joe, the average American law student likely considers himself to be slightly less apathetic and slightly more enlightened about the ways in which technological surveillance is a legal, Constitutional violation in addition to a moral one. He is (or should be) familiar with the Fourth Amendment discourse that now accompanies currently prevalent controversies surrounding internet data mining and other forms of surveillance conducted via twenty-first century technology—most of us would agree, in theory, that reading/intercepting someone else’s emails, storing someone’s personal or financial information, and monitoring his web-searching are all violations of people’s right “to be secure in their persons, houses, papers, and effects against unreasonable search and seizure.”

While a Fourth Amendment violation seems to be the most directly applicable legal claim against internet, video, audio, and other digital invasions of privacy; it seems important to step back in time in order to (re)gain some perspective on the ways in which surveillance today echoes government actions of the past and why digital privacy violations in 2015 resounds with other Constitutional Amendments.

In “The Third Amendment, Privacy, and Mass Surveillance” (available on the Lake Forest Law Review website at, Steven I. Friedland asserts that the right of privacy asserted by the Fourth Amendment’s protection against “unreasonable search and seizure” is also heavily emphasized in the Third Amendment, which, of course, states that “no Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Not only arguing that the Third Amendment is a protection for people from intrusion of their homes, but also emphasizing the ways in which the underlying objective of the Amendments was to check the power of government/public institutions over the private domain of an individual without his consent, Friedland calls today’s digital surveillance a “governmental incursion [upon private individuals by] cyber soldiers.”

A silly argument unworthy of serious consideration, unless history and politics are less important to "constitutional law" than metaphor-fetching. This latter point of view is always among favor with a certain kind of "con law" professor, for which it is the only stock in trade.

Thus, the right to an individual’s privacy has long been tension with the government’s assertion of power on the grounds that such sacrifice of privacy is necessary for the individual’s security and protection as part of a collective society, protection as provided by government institutions (including the military).

Where is the thus-ness here?

Stepping back and thus simplifying today’s complex system of data mining as a power struggle between institutions and individuals--accompanied by the justification that individuals’ lives would be improved by a renunciation of power-- it is possible to use our hindsight in order to re-evaluate the theoretical goals of Bentham’s Panopticon, the evolving practice of Panopticism in the U.S., and the reach of these practices to our attitudes toward Constitutionally-protected rights.

This sentence is not an advertisement for "stepping back and simplifying" if it constitutes the local outcome of "simplification." What does it mean?

The Realities of American Prison and Judicial Interpretation: the Eighth Amendment

First and foremost, it is important to remember that the Panopticon was a prison, famously modeled on a circular geometry that has become an iconic rendering of the idea that a prisoner can be seen without being able to see. It is also perhaps useful to recall that this idea of an all-seeing guard and of the intricate prison architecture whose walls (not just the building footprint), designed to eliminate prisoner privacy, was regarded as an enlightened form of incarceration at the time of Bentham’s writing. The threat of surveillance, whether actually enacted or not, replaced the brutalities of physical beating and torture by guards upon prisoners and also purportedly protected prisoners’ own safety with regard to violence among inmates—the Panopticon was thus, during Bentham’s time, seen as a precursor to humanitarian advocation of a prisoners’ right to physical safety.

Seen this way, Bentham was arguably advocating, not only within a prison context but also regarding fundamental rights of man, a right not to be tortured; in American Constitutional Terms, this also reaches to the Eighth Amendment prohibition of “cruel and unusual punishment.” In the landmark case of Hudson v. Palmer, 468 US 517(1984), a prison inmate was subjected to a violent shakedown search and a deliberate destruction of his (non-contraband) personal property because a guard supposedly found “destroyed government property” (a torn pillowcase) in a garbage can near the inmate’s cell. The Court held that a prisoner had no reasonable expectation of privacy while in his cell because such an expectation ran counter to the need to maintain order within the prison. This decision illustrates how the intrusion upon privacy, even when purportedly justifiable on Benthamite grounds of protecting order and physical safety, actually has ended in legal endorsement of the intrusion upon one’s body.

Perhaps more disturbing in Palmer was the fact that the Court effectively showed nothing short of indifference to the fact that the guard’s harassment of Palmer may have been (likely was) intentional; Justice Burger’s opinion states that intentional violent harassment should be treated no differently than negligent harassment during such shakedown searches if the prisoner would have access to a post-deprivation remedy. If the guard’s treatment of Palmer and the Court’s decision were seen by Justice Stevens’ dissent as a violation of inherent human dignity, the aftermath of Palmer explicitly addressed the issue along Eighth Amendment lines. Cases such as Hudson v. McMillan? (1992) explicitly brought up the issue of cruel and unusual punishment in prisons, and again, by denying Plaintiff’s claim by reasoning that his injuries lacked severity, McMillan? effectively became a big ‘OK’ by the Supreme Court for government institutions to commingle the right of privacy with the rights of dignity and physical safety so as to infringe upon both.

Although Bentham envisioned that privacy and bodily dignity/safety were a tradeoff--such that the renunciation of the former could at least be compensated by the upholding of the latter—legal Constitutional interpretations, regarding the American penal system, illustrate that the modern American prison has failed to fulfill Bentham’s utopian vision and has instead shown that deprivation of rights to privacy facilitate rather than bar the deprivation of other Constitutional (fundamental) rights.

What has [[][Hudson v. Palmer], 468 U.S. 517 (1984) to do with anything? Is this also merely a metaphor, pursued at impracticable length, or part of a legal argument?


Foucault’s take on the Panopticon was eye-opening for several reasons: by reducing both methods of discipline—torture and surveillance--to institutional assertions of power over the individual, Foucault refuted Bentham’s idea that the latter was more humane than the former; perhaps more disturbing to a 1970s reader, he effectively called modern society a Panopticon and warned his readers that we are all living in a culture of surveillance that amounts to living in a kind of prison. Even if many of us either accept or resign ourselves to the fact that data protection and personal privacy are difficult to regain in the face of digital technology that aids various government agendas, a comparison between theory and practice, between Bentham’s Panopticon and today’s practices of government monitoring, suggests that privacy is not the only thing at stake. Foucault was perhaps ahead of his time when he pointed out this idea that invasion of privacy is a kind of violence rather than a substitute for it, and our justice system has proven him right by showing that modern Panopticism, whether enacted by prison guards as direct infringements to inmate privacy or practiced digitally through mass surveillance of non-incarcerated individuals, is not just a Fourth Amendment violation but rather a dangerous stage-setter for the violation of other Constitutional rights.

"Foucault" in this draft seems to be a sign signifying things one would have known if one lived in the 20th century. Perhaps if one didn't, and also never met the man, that's not as inherently absurd as it seems to me. In any event, other than the creation of literary metaphor, the positive contribution of Foucault, Bentham and was-there-any-Orwell doesn't seem to me to have been worth the effort. All the block-and-tackling necessary to move the "big" thinkers on and off stage seems to have consumed all the space in which you could actually have presented an idea of your own. Let's try the next draft without them and see what we get.

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r3 - 26 Jun 2015 - 20:13:51 - MarkDrake
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