Law in the Internet Society

Communal Surveillance and Justice

-- By MathewKenneally - 13 Oct 2014


In modern history law enforcement and punishment has been the exclusive responsibility of the state.

Are you sure? Wouldn't the amount of guard labor, privatized prisons, corporate security chieftains retired from the FBI, and other current phenomena suggest that's not true in the present? And, as legal historian, I can say we could summon much evidence from past eras in this and other societies to say that it wasn't true in the past, either. Perhaps we should say that the contemporary state more often contracts out its exclusive responsibilities than the nineteenth- and twentieth-century states that preferred for many reasons to employ their own servants? This is by no means the only reason your generalization strikes me as untrue, but it's one of them.

So what do we make of the fact that you've started somewhere that puts you and your reader at cross-purposes? The first sentence should tell us what we need to understand the idea at the heart of the essay.

In the 21st Century anybody armed with a mobile device, can capture footage of iniquitous behavior and make it widely available online. The community can through watching the footage help identity offenders for police. Through the circulation of the content the perpetrated can be shamed and humiliated. Additionally, if the identity of the offender is known, online activists with the whereiwthal can contact them directly through e-mail, social networks, or in person. This essay discusses the criminal justice implications of our ability consciously surveil each other and publish the material.

Which we never had before in human history? Isn't that how every village on earth is policed, though without the video cameras? A story about what is happening that de-emphasizes the centralization of power in favor of the democratization of law enforcement starts with a heavy burden of implausibility to meet. But to do it on the basis of this opening set of generalizations seems unnecessarily daring, not to say foolhardy.

Arguably, it is a democratic development, allowing the community itself to hold miscreants to account. It enables an assertion of public values. Where impunity gaps are left by under-resourced are uninterested police the public can enforce social norms of behavior.

However, in my view the trend of mutual surveillance and shaming is antithetical to justice. Who gets surveilled and then "shamed" is a decision based on entertainment rather than culpability. The shaming itself has a propensity to be a disproportionate punishment, with no regard for mitigation or rehabilitation.

But now we are describing what used to be quaintly known as "free speech" as "law enforcement," with the result that we are asking whether it meets due process responsibilities. Nothing about this was analytically required: it was simply the result of reframing so as to ignore the previously evident categories.

The Targets

There is a risk that our culture of mutual surveillance will have a disproportionate impact on vulnerable members of the community. Surveillance in public spaces by its nature captures what are traditionally called "public order" offences. These are offences often committed by the poor, the mentally unwell, and the vulnerable.

People have been noticing for thousands of years that the crimes of the poor are committed in public, while the crimes of the rich are committed in secret, behind the veil of respectable activity. Hence the "white" in white-collar crime. Haven't you made something of a mistake in attaching this to the story of surveillance innovation? How has it changed?

Additionally, content becomes “viral” because it is entertaining. The matters that come to public attention are not necessarily those that are important but rather the most engaging. We are drawn to extreme behavior, conduct more likely to be engaged in by those who suffer from mental illness or substance abuse. In Australia there have been a number of videos circulated of commuters hurling racist abuse at non-white passengers. In each instance the behavior is deeply abhorrent. It is also strikingly bizarre though, suggesting the offender suffers from underlying problems.

As opposed to the people being screamed at, who don't suffer from any underlying problem, such, for example, as the pervasive racism embedded in the power structures of the society around them, which other people have a tendency not to notice unless one isolable individual gives expression to it in a crudely public, interpersonal way? Do I understand correctly that your primary response to the increasing documentation of this particular form of something that is also documented in various other, less crude but still pretty obvious fashions is concern that the individuals hurling abuse may be unfairly singled out as a result of bystander's network connections?

Moreover, when we engage in condemnation to assert public values it is not necessarily because the behavior requires a response, but rather because of our own ideological need or desire to condemn the behavior. For example Faisal Al-Asaad in his short essay Racism and Liberal Society: A Love Story he argues that Australia liberal society, built on a history of dispossession and racism, condemns these incidents in order to perpetuate a myth of multiculturalism:

When seemingly random acts of racial violence take place, white society’s first line of defence is to vilify, reproach and even put on trial those it deems dispensable: women, youth, the working class... In this case, the attackers fit at least two of the descriptive categories [female and working class]. They will now be offered up as sacrificial lambs at the altar of white, liberal values…

Al-Asaad emphasizes that perpetrators are often to online humiliation to to allow the community to distance itself from their behaviors and continue to perpetuate national myths of tolerance and multiculturalism.

The choice of targets of online shaming is driven by entertainment value, ideology, and accessibility. With this criteria, the vulnerable and poor are likely subjects.

Unless they aren't. Interest in the misdeeds of the rich and powerful is also very high, and their privacy is also relentlessly violated in the effort to conduct online shaming for entertainment and other value. I can think of a couple of recent episodes, but so can you. So how come that's not reflected in the structure of this argument, which appears to proceed by ignoring the objection?

Disproportionate Punishment

As decentralized, communal punishment, there is grave risk online shaming can be disproportionate. Each individual engages in the circulation of the content for her own satisfaction. People contact the perpetrator online individually. Unlike traditional justice where a person is punished, when the public seeks to act as vigilantes, there is no natural limit.

"Traditional justice"? The dependency on the original misguided generalization is now total. In this imaginary anthropology social control has "traditionally" consisted of being arrested, taken to prison, "paying one's debt to society," and being released into a condition of general social amnesia. Shaming is an innovation caused by Facebook, or something. This just doesn't make the slightest sense.

The harassment continues so long as the content maintains its traction and new individuals are sufficiently outraged to click. For instance, in 2006, a 16 year old girl accused of theft of a smart phone receiving threatening phone calls from strangers,and had random strangers drive by her family home and shout “thief” as part of a social media campaign.

The consequences for the target can be extreme. A person publicly exposed may be ostracized from their community. They may lose their job. The online record of the behavior is eternal, accessible by prospective employers or friends: a severe outcome for offenses that often would not result in a criminal record. For vulnerable individuals online shaming can compound social difficulties, undermining any potential for rehabilitation.

Unlike punishment by the judicial system online shaming leaves no room for mitigation. The evidence of vile abuse on a train is rarely placed in context. The person filming does not undertake to ascertain if the subject is so unwell or vulnerable so as to make public humiliation disproportionate. No thought is given into whether the punishment will in fact reform the offender, or damage them further. Punishment and judgment are delivered immediately.

None of this is to romanticize the criminal justice system. Courts are often vehicles of injustice and reflective of abhorrent ideologies. Reporting from Missouri Ferguson has shown that Courts, in enforcing fines issued by Police officers for minor offences, are complicit in exploitation of the local black population. In the Australian Northern Territory Indigenous Australians appear before almost exclusively white Judges, and unsurprisingly continue to be incarcerated at a rate higher than blacks in apartheid South Africa.

The difference between the traditional system and the bourgeoning culture of online shaming is aspiration. The Court system allows each accused a hearing, to be represented, to put matters in mitigation, in the hope a Judge appraised of the facts can fix a punishment that expresses condemnation but permits rehabilitation. Courts seek to punish offenders for legislatively prescribed crimes based on predetermined standards, not the vagaries of public opinion.


Communal surveillance is antithetical to justice. It is ideological, capricious, and disproportionate. Nevertheless, our capacity to spy on each other is exponentially increasing. The community’s involvement in punishment will not recede. In these circumstances we should discuss, how do we fashion the democratization of punishment, to ensure it is also fair?

There's some basic conceptual work to do here. One thing needed is a more realistic anthropology, as I've indicated in the comments. Another thing needed is some data. If there are social phenomena here to be discussed, there should be some evidence of their existence. A little look at "human flesh search engines" and related phenomena might suggest an alternative line of interpretation. In "shame cultures," to follow Ruth Benedict's famous distinction, social network forms of communication and organization will be used to amplify public shaming behaviors that are integral to the culture's traditional modes of social control. In "guilt cultures" that are dominated by village institutions and "face to face" modes of social action, social networking allows rapidly-urbanizing populations to continue behaving in many respects as villagers.

But whatever you decide to do with the basic conceptions, they will (a) change, and (b) change more once you come outside the frame of US or Australian experience to globalize your thinking a little further.

The Return of Shaming (Draft #2)

The proliferation of mobile devices and Internet access has diffused power to police and punish from the state to the community. Internet users can identify wrongdoers and punish them through online shaming. My concern is with the vices of online shaming, particularly when used against individuals. The features of online shaming: the relative anonymity of activists; a lack of co-ordination; and a lack of real connection to the target can give rise to cruel and unnecessary humiliation.

The simplest method of online shaming is publication of incriminating evidence to allow other users condemn and circulate. The online community can work together to publicly identify a target of online shaming. In extreme cases a person’s name, address, family members, and place of employment will be published. This is referred to as “doxing” or in China as the “Human Flesh Search Engine”. Following publication further punishment can be inflicted on the target such as online harassment, phone calls, leaving threats at a person’s home, or demanding the person be fired from employment.

The ability to publicly shame can have significant benefits such as redistribution of political power, and closing of impunity gaps. For example Chinese Communist Party Officials have been identified and shamed for corruption. Police officers that use excessive force or inappropriate language are now liable to find video evidence of their conduct online accompanied with calls for investigations (see the Nation; and Washington Post.)

While online shaming is new, public shaming as punishment is not. Shame sanctions were integrated to criminal justice systems in Roman society and Puritan New systems (See Daniel Solove p. 91),and were central to some tribal justice systems (see National Institute of Justice; and report of the Aboriginal Justice Implementation Commission.)

The central element of shaming punishments, humiliation, is achieved through participation of a community familiar to the offender. Shaming sanctions therefore tend to be more effective in small communities. Modern societies have largely abolished shaming sanctions, partly because of objections that shaming was uncivilized, and less effective in urban societies. The relative anonymity of a densely populated urban environment, and the concomitant absence of a familiar community, makes public humiliation impractical (See also Daniel Solove p. 91 - 92).

The Internet enables public shaming to occur by piercing anonymity and allowing for assemblage of a crowd. An offender cannot disappear into a city to escape the opprobrium of an online crowd. The crowd need not be restricted to the target’s neighbors, peers, or relatives. It may include anyone with an Internet connection and an interest. Cole Stryker describes this as the “re-villaging” of the human community.

While people can behave like villagers online, we do not live as villagers. Online activists rarely live in close proximity to the targets of online shaming. As a result participants in online shaming do not know the target, her family, or her immediate community. This lack of reciprocal obligation makes humiliation by the community online inherently liable to being disproportionate.

The online community knows very little about, and has no social contact with the targets of an online campaign. This makes it difficult for online activists to put a persons aberrant behavior in context before engaging in online shaming. Take for example, racist rant videos posted online in the UK and Australia. Videos of individuals hurling racist abuse in public are quickly uploaded and circulated, allowing an offender to be identified and condemned. The shaming occurs before mitigating or contextual factors can be communicated. In circumstances where sympathetic circumstances exist – such as mental illness, drug abuse – to explain herself the offender must surrender more privacy and risk further humiliation.

Another example is Grace Wang, a Chinese student, who during a confrontation between “Free-Tibet” and “Pro-China” protesters at Duke University was photographed writing “Free Tibet” on a student protester’s t-shirt. Wang was not a supporter of Tibet but trying to mediate the dispute. She agreed to write on her fellow student's T-Shirt on the condition he talk to the Pro-China protesters. Wang was accused of being a traitor to China, her identity and personal details were published online. She received death threats and her parents in China were forced into hiding. The Human Search Flesh Engine pursued Wang without understanding her actual beliefs or the context of her behavior: an attempt to mediate a confrontation within her University.

Participants in online shaming lack the incentives, imperatives, or means to practice restraint. Participants owe no social obligations to their target. Grace Wang and the pro-China demonstrators at Duke University resolved their dispute. They had to move on and co-exist at College together. Online activists have no need to ever interact with a victim. They have no incentive to temper their conduct to allow the community to move forward.

Further, the online activists retain anonymity by operating under an alias, due to the sheer volume of participants or online campaigns. Participants are not accountable to a community, or a target’s family, for the extent of hurt and humiliation caused.

Even individual participants that feel a degree of obligation to treat the subject of shaming fairly are not in an ideal position to restrain themselves or the online crowd. The process of online shaming is not organized. Individual participants in the process do not know what actions others are engaged in. There is no person responsible, or established methods for evaluating, when someone has “had enough”. Moreover, as the online community has no proximity to the target it is unlikely individual activists could be aware of the actual effects of public humiliation on a target.

Online shaming is a communal activity, but practiced in the absence of traditional constraints imposed by an actual community it risks being unjust and disproportionate. The Chinese Government sought to regulate the Human Flesh Search Engine by prohibiting the publication of personal details and offensive materials. In my view laws seeking to limit online shaming are unlikely to be effective and are undesirable restriction on free speech. The problem with online shaming is not free speech, but the formation of uncontrollable and unaccountable online mobs. Rather, it is desirable for public dialogue to recognize the risks and ethical challenges of public shaming, in the hope of forming new norms that guide who is publicly shamed and place limits on the humiliation.


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r3 - 06 Nov 2014 - 01:19:10 - MathewKenneally
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