Seeing Hazily, But Not Darkly, Through the Lens: Some Recent Empirical Studies of Surveillance Technologies
Law and Social Inquiry, vol. 30, no. 2, Spring 2005

Back to Main Menu  |  References  |  Notes

Gilliom, John. Overseers of the Poor. Chicago: University of Chicago Press, 2001. P.186.
McCahill, Mike. The Surveillance Web. Devon: Wilan Publishing, 2002. P. 219.
Newburn, Tim and Hayman, Stephanie. Policing, Surveillance and Social Control. Devon: Willan Publishing, 2002. PP. 198.
Tunnell, Ken. Pissing on Demand. New York: New York University Press, 2004. PP. 208.

By Gary T. Marx

Gary T. Marx is Professor Emeritus, MIT, and an electronic (, and occasionally itinerant, scholar. His most recent itinerancies have been in law and society programs and law schools at the University of Illinois, West Virginia University, University of Washington, UC Berkeley, and Northwestern. He is author of the forthcoming Windows into the Soul: Surveillance and Society in an Age of High Technology (University of Chicago). He is a founding member of the Scottsdale and Bainbridge Island Bike and Kayak Club. This review continues an interest in the complexities of social control that began when as a graduate student in a civil rights group (CORE), he learned that the treasurer who had absconded with the group’s funds was also a police informer. That event radically contrasted with earlier positive experiences in a Boy Scout troop sponsored by the Los Angeles Police Department.

I am very appreciative of the critical suggestions of Albrecht Funk, Jim Horning, and Karl Shoemaker and the editorial encouragement to write an essay rather than a book report.

I hope you do not assume yourselves infallibilitie of judgment when the most learned of the apostles confesseth that he knew but in parts and saw but darkly through a glass.

          —Sir Richard Saltonstall

Recent Studies of Surveillance

Those writing about surveillance technology and social control issues in the 1970s and early 80s were frequently asked, “Why would you want to study that?” The topic was seen as atheoretical, marginal, and even tainted by its proximity to the forces of darkness and dystopia. The field was viewed as more the province of science fiction writers, the sky-is-falling journalists and ACLU activists than of serious scholars (at least of the professionally certified kind). Studies of technology and society also had to deal with the ever-present suspicions of technological determinism.

Certainly the growth of computers with centralized databases and revelations regarding Watergate and the FBI’s COINTEL program suggested areas of public policy concern, but the Freedom of Information Act and related legislation such as the 1974 Privacy Protection Act (which grew out of the Presidential Privacy Protection Study Commission), new FBI Guidelines and local law enforcement reforms dealt with these problems.

The field received minimal social science attention. For almost two decades legal scholars Samuel Dash, R. Schwartz, and K. Knowlton (1959) and Arthur Miller (1971), political scientist Alan Westin (1967), and sociologists Stanton Wheeler (1969) and Jim Rule (1974) had little company. In the early 1980s attention to the topic increased with work such as that by journalist David Burnham (1983), philosophers Sissela Bok (1978, 1982) and Fred Schoenman (1984), and sociologist Ken Laudon (1986). A small social and environmental psychology literature also existed (Altman 1975; Margulis 1977; Ingram 1978). In addition, there were some classic law articles reviewed cases and asserted central principles or values. (Fried 1968; Bloustein 1979; Gavison 1980). Finally, the topic also received some attention from those in management, labor, and communications studies.

In general the ardor of the surveillance studies bibliophile could be easily and responsibly sated. Yet over the past two decades as the man in the film said, “things change”, and contrary to the French aphorism, in important ways they did not remain the same. 1

Today, contemporary scholars, no matter how conscientious, technologically supported, and sleep deprived, cannot begin to keep up. The number of articles, books, and reports is vast and rapidly expanding. From 1960-1970 Sociological Abstracts listed just 10 articles that included the concept surveillance, this increased to 87 and 156 in the next two decades: From 1990-2000 577 such articles appeared, and in just the next three years, more than half that number. 2 Using the concept privacy, the search engine LegalTrac reported only 37 law-related articles using the concept privacy in 1980, 275 by 1990, and 649 in 2002. 3

There are new journals (e.g., Surveillance and Society; Ethics and Information Technology; The Information Society; Communications, Law, and Policy; New Media and Society, special issues of traditional journals (e.g., Jermier 1998; Mack 2001; Marx, 2002a; Marguiles 2003; Van Harten and Van Est 2003; Hillyard 2004, and even a new interdisciplinary, international area of surveillance studies greatly encouraged by the work of David Lyon and his colleagues at Queens University in Ontario. The topic touches an ever-expanding number of fields from public health concerns with epidemics (e.g., AIDS and SARS), management concerns with hiring, work monitoring and productivity, marketing and media concerns with sales and persuasion, and the emergent crosscutting area of risk assessment --whether involving insurance, mortgages, credit cards, criminal justice, or national security.

The continuing surge in surveillance interest following 9/11 is a factor here (e.g., Lyon 2003; Ball and Webster 2003; Cate 2004), but the breadth and depth of this interest preceded, and go far beyond, security issues, even as these issues accelerate developments within the other areas and seek to encompass them. For better and worse, social inquiry is much driven by contemporary social issues and newsworthy events.

Central to this expansion, particularly for traditions of social control, law and society, and criminology are theoretical essays drawing on and extending Foucault (although he was writing about earlier centuries); further in the background, Taylor, Weber, Neitzsche, Marx, Bentham, and Hobbes; and even further in the background the watchful and potentially wrathful eye of God in the Bible. Work such as that by Cohen (1985), Giddens (1990), Poster (1990), Gandy (1993), Lyon (1994), Bogard (1996), Brin (1998), and Staples (2000) in general tend to draw on newsworthy accounts and secondary empirical data and sweep across technologies in offering macro-theoretical accounts. Journalists take even more license (Davis 1990; Sykes 1999; Garfinkle 2000; Parenti 2003).

Among central ideas found in much recent literature involving the rise of scientific and technical approaches to social control are the following: 1) Surveillance is about the exercise of power, 2) knowledge is central to the exercise of power, 3) the technical ability to know and use knowledge has undergone profound quantitative and qualitative changes, 4) data collection vastly expands in breadth and depth continuously (or routinely if episodicly) covering (and recovering) ever more areas of life, often giving meaning to what previously was meaningless, 5) the internal and external connectivity of various forms of knowledge increases, enhancing the power of the center but not requiring it to be directly on the scene, 6) the surveillance of subordinates spills beyond the organization and specific cause to the decentralized, categorical examination of routine activities, 7) data collection is ever more embedded and automated as it becomes a part of the activity itself (e.g., credit cards, communication, driving, room temperature) rather than being imposed upon it, 8) the classification of subjects becomes ever more precise and differentiated, 9) a bright line separates controllers from the controlled and the guilty from the innocent, 10) the power to act of the state and organizations grows ever greater and this is matched by lessened visibility 4 and accountability and the weakening of those controlled, 11) surveillance subjects are passive, indifferent, or even cooperative as a result of ignorance, manipulation, deception, or seduction, 12) surveillance phenomena (whether characteristics of the means, data collected, users, goals, or settings) are generally treated in an undifferentiated fashion as monolithic and unidimensional, 13) things work as planned, and 14) if we are not careful (and, even then, perhaps), dystopia is just around the corner, or at best a few blocks away.

These ideas have been central to framing current popular and academic perspectives and debate. 5 They were reflected in concerns about surveillance, Big Brother and Sister, and the latest spying technology even prior to 9/11. Given the field’s importance both socially and theoretically and its neglect until recently, surveillance essays were very welcome in alerting us to the changes. They generally simply assert and selectively illustrate their claims rather than assessing and documenting them with primary data. Not surprisingly then, this work often seems unduly general and sweeping. Being insufficiently bounded by systematic empirical data, it gives abundant room for the play of argument by example whose representativeness is unknown. That such work generally lacks testable propositions and does not adequately analyze variation may also reflect the field’s infancy. The energy of a youthful argument is rarely the friend of nuance.

Four Recent Empirical Surveillance Studies

The four books reviewed here grow out of this tradition. But they also extend it and make clear the need for frameworks that can organize and integrate the rich empirical findings that they and subsequent studies will uncover as the field matures and moves on the continuum from social speculation toward social science. These works are important because they are among the first book-length systematic empirical studies of particular kinds of new surveillance technology in the last decade. 6 They suggest a more variegated world with respect to what needs to be explained and judged, although their focus is generally on documentation and illustration rather than explanation. Their data require qualification and a hearty “yes, but” to many claims of the previously dominant surveillance essays.

The books treat three surveillance techniques: computer matching, video cameras, and drug testing. In contrast to many studies of the law, surveillance, and privacy, the focus is not on legal doctrine, judicial decisions, or even much on the behavior of traditional judicial agents of the state. Rather these books refreshingly study the behavior and experiences of those involved (whether as watched, watcher, or both) with new surveillance means. They call attention to the behavior of “private” (if border-blurred) agents, such as the guards watching mall video monitors and those not usually thought of as control agents such as welfare workers.

Writing from political science and sociology perspectives, the books, like most social studies of contemporary newsworthy topics, are more focused on social problem or behavior than discipline-focused. Their empirical data tend to be qualitative, or when quantitative, minimally analyzed with multivariate and statistical techniques. Here they contrast with the more quantitative, discipline based propositional approaches that tend to characterize the work of economists, geographers, psychologists, and administrative scientists dealing with personal information questions.

The books are rather atheoretical, or at best moderately theoretical, emphasizing descriptive questions and findings. Each study is placed within a context of larger ideas, but this is by way of illustrating the data’s consistency with, or opposition to, these rather than an explicit effort to test them. While occasionally flirting with the symbolic and interpretive, they are also distinct from cultural studies of surveillance and control (e.g., Marx 1996; Groombridge 2002; Doyle 2003; Mann, Nolan, and Wellman, 2003; McGrath 2003; Scher 2004). After a summary and comment on the books’ questions, methods and central findings, I look across the studies and consider some broader implications and ideas that can help integrate their findings and advance the field conceptually.

Seeing Over and Under the Poor

In Overseers of the Poor, John Gilliom continues his empirical research program on elite social control efforts through technology, admirably begun with his earlier book on employee drug testing (Gilliom 1994). In that book he considered the results of a survey of union members about drug testing and analyzed federal court decisions. The current book also involves a small survey. However, the focus is not on legal doctrine, but rather on the failure to draw upon it. In Overseers he studies the application of a computerized client-information system to females receiving Aid for Families with Dependent Children (AFDC).

Welfare mothers have faced increasing surveillance over time. In Ohio this culminated in a computerized client information system called CRIS-E (an acronym for Client Registry and Information System- Enhanced, which might also be read to refer to a crisis, whether for the surveilled or the state). The computer-enhanced means of data collection and analysis narrowed the mesh of the social control net in gathering new kinds of information and matching diverse data bases. The study is based on 48 semi-structured interviews (or in his terms “conversations”) carried out by interviewers who had themselves previously been recipients.

He asks three descriptive questions: What goes on in the politics of surveillance? What effects does sustained surveillance have on people’s lives? and “what is it that people say and do as they struggle with new policies of surveillance? He answers these not with the “agendas and vocabularies of lawyers, academics and policymakers,” which dominate so much public discussion, but in terms of the accounts of those subjected to the techniques. As with other recent field-expanding studies (e.g., Ewick and Silbey 1998), his method is that of the empiricist venturing beyond the confines of the courthouse and legislature to look at the law in everyday lives.

Welfare surveillance is viewed as characteristic of “the reductive and authoritarian ways of knowing that mark modern bureaucracies.” 7 Recipients “live with a system of laws that is threatening, confusing, and mean-spirited” (p. 41). 8 Rights and legal action for such persons are seen as mythical, if not outright deceptive. The routine use of systematic personal data is viewed as the primary means through which elites exercise power over the poor.

The new welfare surveillance, as with other contemporary types, shows a more abstract, centralized, formal, and reductionist form of state power resting less on the uniqueness of the local situation and the judgments of the welfare agent than previously. Here technology restricts discretion and constricts the space to negotiate.

The system of knowledge generated by the computer is seen as a form of domination. While extreme, the welfare example reflects the standard deal offered by modern society that legitimizes intrusions into private realms: Give us your information in exchange for [fill in the blanks] welfare, employment, a license, insurance, a loan, tax reductions and various privileges, subsidies, exemptions, and identities.

Gilliom subtitles his book, Surveillance, Resistance, and the Limits of Privacy. He convincingly argues that the catchall phrase “right to privacy” is inadequate to describe the anger, powerlessness, domination, and fear that surveillance may generate in its subjects, nor does it offer adequate means of protection. Beyond material consequences the new system of record keeping is a “fearsome presence” (p. 113) with implications for how the mothers see and feel about themselves in view of the state’s simplification of their identity and lowering of their self-esteem. Attention to the subjective and longer term consequences of surveillance is vital for our understanding.

Gilliom says that “behind, betwixt, or beside the public discourse of privacy rights were other ways of speaking and thinking about surveillance that could and should inform our confrontation with these issues” (p. xii). He finds these ways in the seldom-heard accounts of the “often sad, sometimes frightening, and frequently quite noble lives [of those] attempting to mother below the poverty line in rural Appalachia” (p. xi).

As would be expected, the mothers don’t like this degree of surveillance, especially when eligibility requirements and the linked data collection involve areas of family, sexual behavior, income, and expenditures. Beyond the sense of intrusion, the information, with its implied threat of finding rule violations, is used by the state to manage important economic and social aspects of recipients’ lives.

But rather than responding with the language and formal actions of rights to privacy and other legal and political claims, their individualistic challenges involved something much more basic –protection of their families’ needs via creative violations of the rules, such as those restricting income and the presence of male partners. 9 Instead of seeing little acts of everyday resistance (such as bartering or hiding income) as nonpolitical and generally futile, he argues that these advance important values and ends, and reaffirm “admirable and widely shared principles of human responsibility” (p.16). 10 The law for those studied is not a means of empowerment but an obstacle to be overcome in pursuit of the higher socially responsible values associated with caring for one’s family and fending off state intrusions, which however legitimated by procedure and reference to other values, are seen to go too far into personal realms.

Gilliom takes as a central problematic the failure of those studied to resist a system that is seen to invade the legal right to privacy. The lack of legal consciousness and rights mobilization suggest a problem to be explained: Why is there an absence of “complaints about how surveillance measures invade an existing legal right to privacy?” 11 He notes how need and dependence, powerlessness, fear of sanctions, lack of information, the complexity of AFDC’s rules, and ignorance of rights work against the bold formal assertion of complaints regarding the welfare system. The mothers’ need was great, and their resources to both conceptualize and literally offer legal challenges were minimal. Rather than a tool to pursue justice, the law is a roadblock to be detoured around.

His findings are consistent with the literature on political mobilization in that the poorest off are usually too weak and overwhelmed to organize in traditional ways. This finding is also related to the larger question of why privacy issues, as salient as they are in the United States, do not usually generate broad political mobilization.

The politics of surveillance is hardly restricted to the poor. In an epilogue Gilliom reports on his serendipitous visceral encounter with some involuntary participant-observation data. The book moves from surveillance of welfare recipients, who for the practical purposes of everyday life are seemingly beyond the legal system, to a surveillance episode involving those thoroughly within it–a law and society professor and his wife, the head of the local ACLU. The incident involved a fruitless search (complete with a black helicopter) of the Gilliom rural home and land for marijuana cultivation based on an imprecisely drawn warrant (marijuana was being grown in a nearby federal forest).

The social scientist surveilling the lives of his subjects becomes the subject of unwarranted state surveillance. 12 Innocent of any wrongdoing, Gilliom movingly reports the sense of shock, anger, and powerlessness that accompanied the armed intrusion of his home:

“the doors of our home were opened and our dressers, beds, desks, toy closets, jewelry and medicine cabinets were all thrown open to the pawing hands of the deputies. Letters, family photos, underwear, jewelry, even our children’s toys were tossed, dumped, and rifled. I hope that the reader can pause and imagine absolutely every nook and cranny of your home ransacked not just by strangers, but by strangers who would probably like nothing more than to hang you out to dry.” (P. 145)
He further reports concern over possible intimidation, planted evidence, and harassment, as he pondered, and was hesitant to aggressively pursue, the legal remedies available to him.

Gilliom writes clearly, locates his quest within the literatures of legal mobilization and surveillance, and engages issues that matter intellectually and socially. 13 He is one of relatively few empirical political scientists or lawyers whose work is grounded in the life situations of those studied, rather than in the free-floating and free good quality of the unqualified abstraction, whether offered by those fearful (or less frequently those supportive) of the new surveillance. In a world where the megaphones and language are dominated by the more powerful (however internally varied they may be), the scholar needs to seek out voices of the less powerful, 14 although of course, with the same critical skepticism brought to any voice (or even greater attentiveness if the observer is in sympathy with the accounts of the observed).

In illustrating the domination and dignity impugning aspects of welfare surveillance as experienced by his subjects, Gilliom writes in the critical dystopian tradition. Yet by their nature, all stories are partial. Arguments about surveillance as domination need conceptual elaboration and to be located alongside of more benign uses as documented in the studies by Newburn and Hayman and MaCahill considered next.

Mirrors in Front of Mirrors: Who’s Watching?

In Policing, Surveillance, and Social Control, Tim Newburn and Stephanie Hayman report on their interviews and observations of the use of CCTV (closed circuit television) 15 in “custody suites,” the lovely laundered British term for what in the United States would be temporary holding cells. As in the United States within the last decade CCTV cameras have been installed in many booking areas in England and Wales and within a limited number of cells designated for holding prisoners deemed to be particularly vulnerable.

Following a tragic death in police custody under unclear circumstances, the police authority created an experiment (although it was a trial program rather than a true experiment) that put cameras in all cells in the Kilburn Police Station in a lower-income, ethnically varied section of north London. The book reports on an “external academic evaluation” requested by the Metropolitan police. It raises “sociological questions and issues about how we use and how we think and talk about the use of CCTV” (p. 170).

Newburn and Hayman describe the problem of deaths in police custody and the case that gave rise to the experiment, analyze records and report interviews with 29 police, 73 detainees, 16 and mediating persons (e.g., medical personnel and lawyers) who enter the suites. Many of the police interviews were within audio-linked CCTV camera rooms and were thus inadvertently recorded. In spite of that, officers “spoke remarkably frankly” (p. 57). The authors locate their findings within broader surveillance issues involving risk in policing and social control, the “management” of subject populations, and police accountability, and they offer sensible policy recommendations.

They ask how the tactic should be viewed, “mainly as a further extension and elaboration of contemporary forms of social control? Or, given what we know about the history of mistreatment of prisoners by the police, particularly those from minority ethnic communities, should CCTV be understood as a means of protecting the vulnerable from harm?” (p. 157). The answer is both.

Their central descriptive finding is that on balance, both guards and the guarded are supportive and even welcoming of the lens. 17 Those questioned perceived that video had led to more restrained behavior on the part of both police and detainees. They agree with David Lyon (1994) that “not only does electronic surveillance have ‘two faces’ –one that intrudes and impacts on privacy, and one that watches and, potentially protects –but both may be visible simultaneously” (p. 3). Their call to focus on “both faces of CCTV” is very welcome. However, rather than Janus (double), it is best seen as polyheaded.

Consistent with most complex and dynamic human endeavors, goals were often in conflict and unclear. There was a (perhaps functional) lack of specificity about what the goals of the program were and how they might be prioritized in different contexts. Among major goals were protection, more effective management, and enhanced police legitimacy through the light the camera is presumed to bring to literally and behaviorally dark carceral corners.

The (1) protection goals --“it’s for your own good” whether for inmates (harm from themselves, other inmates, or staff), or staff (harm from inmates, protection against false accusations) and (2) management goals (accountability, performance evaluation, documentation, and enhanced public confidence) clearly took priority over other concerns, such as privacy or employee expectations regarding limits on observing and recording their behavior. The cost to these values was generally seen as a necessary price to pay as reflected in the following detainee’s words:

“Privacy? That’s not so important. Once you’ve been in prison, you realize toilets don’t have to be private, though that’s not very nice. If it stops police kicking someone about, then going to the toilet doesn’t matter too much” (p. 113).

Still, hanging over the main goals was an uneasiness about an undefined “privacy” and a desire not to be seen as going too far. Clearly some of the watching they were expected to do made the watchers and the watched uncomfortable. Guards also expressed some concern that supervisors might misuse the records, saving minor incriminating material taken out of context for cumulative sanctioning long after the fact. Information can be squirreled away and suspended as a guillotine over the employee.

Interviewees and the authors spoke of “the need for balance”. 18 Here we see the fascinating revelation-concealment, security-liberty dynamic found in all surveillance and control settings in democratic rule of law societies. 19 It is interesting to imagine how much further video might be taken (e.g., there could be many more cameras, they could be attached to or inside persons–in some places they are now worn on police helmets-as well as fixed in building structures, and images could be made available on the internet) and why these actions don’t occur. Apart from the law, there are practical and moral limits on absolute goal attainment, no matter how desirable the goal. Such limits may involve competing values (in this case an inchoate sense of decency and that some actions that go too far), politics (fear of backfire and reciprocity), and logistical and resource limitations.

Also reflective of the goal haze is some blurring of the distinction between, “those being ‘watched’ and those doing the ‘watching” (p. 156). The watchers are themselves watched in their routine interactions with inmates and each other. 20 This introduces some alteration in the power relations usually attributed to this form of surveillance. As the authors, suggest CCTV as a new technique can certainly tell us about contemporary policing.

Yet change has multiple dimensions. Here we see the common pattern of a change in means to a greater extent than a change in goals. In addition, these new means of police accountability reflect changes in form more than function. The new means-whether video in police stations, during interrogations or on patrol cars, or whether cell phones, electronic location devices or computer audit trails fit well with the modern history of policing as a continual process involving efforts to increase accountability (and efforts by subordinates to undermine it), whether this involves the early time boxes, two-way radios, or telephones (Fogelson 1977, Erickson and Haggerty 1996; Meehan 1998).

I particularly appreciated that the authors unpacked some of the complexity around introducing a new tactic such as video surveillance-even within a juridical and clearly demarcated organization and physical location in which customary expectations of the right to be left alone is obviously lessened.

The book shows that one can’t in any satisfactory fashion answer the simplistic question so often put by legislators and journalists (and, sadly, too often facetiously answered by on-the-make politicians, technologists, and social pseudoscientists), “Is it good or bad?” The answer of course is yes and then it depends. The seemingly direct question, “Should CCTV be used in police custodial settings?” turns out to be a series of questions.

Beyond questions dealing with the technical capacities of the equipment chosen 21 are question such as where are the cameras? On the street leading up to the facility and on the building’s exterior perimeter? Are they restricted to the central booking area and in the hallways? Are they also in all cells, or only in those with inmates deemed to be at high risk? 22

How does (and should) the nature of the behavior or interaction affect camera use? Should the camera be off when an inmate is examined by medical personnel or interviewed by external auditors? What of the bath and shower rooms? (Recordings were made but not without reservations on the part of both agents and subjects). 23 What of the cells where suspects are interrogated by police or meet with attorneys? The kind of inmate may matter as well. Should children be subjected to different rules of observation? Should gender of the watcher and watched be matched? Lack of female police meant that it often was not and there were no rules against cross-gender observation via camera.

Should the cameras always be on (whether as a matter of policy or engineered in), and if so, always monitored by an observer? Should the camera be on when there is a strip search? It was. If a camera is not monitored (which for reasons of resource limitation or design is often the case) should a record always be made? 24 When a monitor is present, should a record be made only if there are some grounds for recording such as a disturbance or evidence of self-harm? If made, how long should the records be kept? Who should the monitors be - police or nonpolice? Who should be granted access to the records, and under what conditions? Lay visitors were not routinely entitled to see them. What is their legal status? Who do they “belong” to? 25 How much (if any) and in what form is notice of the camera, its location, and capabilities given?

The authors do not offer systematic means of answering these questions, but they consider them in identifying the topic’s complexity and in discussing in clear prose what is at stake. In a politically charged area such as this, where access to the inner police environment is rarely available and common sense and self-interest too often substitute for empirical knowledge, it is vital to have their observations and interview data. 26

Smile You’re On Candid and Uncandid Camera

The Surveillance Web by Mike McCahill is an empirically informed and wise analysis of video surveillance in an English city. In offering fresh and varied (both in method and content) data, balance, and thoughtful theoretical ordering, this insightful book makes a strong contribution to our understanding of the new surveillance. The book grew out of a Ph.D. thesis and is based on observational, interview, document, and statistical data. Would that all such pedagogical ventures that become books demonstrated this breadth and depth.

McCahill locates his study in contrast to the “very general, abstracted narratives of change” characterizing the surveillance essays that fail to examine “how people in contemporary society experience these changes (p. xvi). He studies the construction and workings of a varied public-private surveillance network in three contexts -shopping malls, industrial work settings, and a housing project in “Northern City.”

No Computer Is an Island

The book’s title is well chosen. A key element of the new surveillance is its systemic and comprehensive nature, at least relative to prior forms. It “sees” in new ways and sees more, and more easily, than ever before --both in what it visually depicts and how much it connects physically, temporally, and culturally separated settings, persons and kinds of information. It also permits replaying and merging present, “real time” sound and data images with those that existed before in delayed electronic form (and before that, only in more easily contested memory, narrative, or drawing). 27 Moreover, it allows the construction of new, simulated categories of the person based on biometric and other data.

The unreflective may view a visible surveillance camera or video display terminal at the entrance to a mall as an isolated stand-alone action, not unlike the taking of a family photo. Yet as McCahill’s data suggest, that is not the case. Images from multiple cameras in a given store are merged and can be saved and sent from the control room. Video surveillance is part of an intricate web with a variety of data potentially flowing back and forth between distinct spatial, social, legal, and technical systems. This technology in turn reflects a broader process of the “assemblage” of previously discrete forms of data and the “invention” or “generation” of new forms. (Deleuze and Guattari 1987; Haggerty and Ericson 2000).

Despite the absence of formal legislation, Northern City has an extensive technical and social surveillance network consisting of electronic linkages between 30 CCTV control rooms. In the book, figure 3.1 (p. 71) usefully depicts the complex latticework of primary, secondary, and tertiary control rooms. While the details are something only a specialist could love, the broader point regarding the degree of integration (and potential integration) among very diverse control systems is powerfully made.

There is of course variation. The highest level of integration is in the “shopnet” public-private system involving 196 internal and 39 external cameras in two shopping centers, four major department stores, seven high-street retailers, and the local police station. In addition varying degrees of connection are seen within and between the video surveillance systems of housing projects.

Public and private CCTV systems are interwoven with pagers, panic alarms, motion and infrared detectors, radio links, fax machines, and mobile and fixed telephone networks. McCahill studied the interaction between those in the video control room directing the cameras and guards in the field. The latter play an important role in giving direction to camera operators. Cameras carried by guards or on dogs and robots can also transmit images back. In turn once something suspicious or in need of amelioration (e.g., an injured customer) is discovered by the central monitor, guards can be sent to the scene via radio messages. Yet while the transmission may be automatic, human behavior is not, a disparity that keeps us in business.

Another strand of the web (or tentacle of the octopus depending on your perspective) connects to databases or knowledgeable others that can give additional meaning to the visual. This might involve zooming in to capture a signature or watching which numbers a suspected drug dealer or client dials from a public phone and matching that with subscription records, identifying drivers by license plate images that will be linked to vehicle records, showing video-generated photos of suspects to police in the hope of identification, and asking a pharmacist dispensing methadone for the name and address of a suspicious person seen on video going into a drugstore.

Variations in Surveillance Behavior

Both the Newburn and Hayman book, and that of McCahill attend to variation in need of ordering and explanation. The former give greater attention to variation in the physical structures and policies of video surveillance, while McCahill emphasizes variation in the surveillance behavior of the monitors in different contexts. McCahill’s chapter contrasting two kinds of shopping mall is very rich. One was within a large, low-income housing project (“one of the most deprived estates”), and the other, a more upscale mall in the city’s center. Although they use the same technology, in the same city, within the same type of entity, there are striking differences in the sources and reasons for targeted video surveillance.

How do individuals come to be targets of mall video surveillance (defined as being observed for more than 30 seconds)? In about half the cases, the CCTV operator is the initiator, and in the remaining half, initiation is based on “transmitted suspicion” via a report from a patrol guard, store detective, store employee, CCTV operative from another system, or police. Five types of suspicion are identified: categorical, personalized, behavioral, protectional, and locational.

The basis for the suspicion depends on the setting and type of clientele and determines how the exclusionary potential of the mall is carried out. The main sanction these control agents can apply is exclusion from the mall-whether for a fixed period up to a year or simply on a given occasion.

Suspicion is constructed very differently in the two sites. In the housing project mall, it tends to focus on a certain kind of person, while in the upscale mall it focuses more on behavior. For the former, 80% of the surveillance is personalized, rooted in local knowledge of the person watched who is perceived to be either (and frequently both) a shoplifter or a drug user/dealer. Three-quarters of cases in this mall involved issues of possible drugs or theft. The clientele are local people who must visit the mall daily for basic needs. A security manager said, “We’re in the middle of a residential estate. You don’t travel to it and you don’t travel from it like City Centre Mall. Our problems are 24 hours a day problems” (p. 111). The security officers are also local people with knowledge of the locale and its inhabitants.

The upscale mall had a more transitory clientele. Authorities, lacking localized knowledge, allocated suspicion 41% of the time based on actual behavior and only 28% on personalized knowledge. They most often focused on behavior that suggested non-consumption or disruption of the commercial image desired by the mall (lounging, walking a dog or a bicycle, sitting on the floor or lying down, 28 being in a prohibited area).

The differing grounds for suspicion in the two malls raise issues of effectiveness and justice. When suspicion is based on inferences from behavior rather than detailed knowledge of the person and context, fairness in the form of universal treatment may be more likely, but so too may be errors, given acontextuality and the distance of watchers from the watched. The latter is a major problem with the new surveillance in which data, taken from their immediate geographical and temporal context and used in probability models, automatically lead to action (eviction from a mall, denial of credit or insurance). This kind of behavior may be rational in the abstract but not necessarily when you get down to cases. Here the modern ideas of economic and administrative rationality as against individualized justice are on an accelerating collision course.

On the other hand the personalized suspicion based on deep local knowledge characterizing the mall adjacent to the housing project can avoid problems of context-information deficiency, At the same time, it may be conducive to collusion and corruption, favoritism and discrimination, privacy invasions and the violation of expectations of being judged on the basis of what you do rather than who you are (or are perceived to be). There is no adequate solution to this reoccurring tension other than awareness of it and the tradeoffs between focusing on kinds of behavior vs. kinds of person, on central (read removed) vs. decentralized (on scene) authority, and on formal rules vs. discretion. 29

Of course more than suspicion can be involved in targeting. Bentham long ago identified entertainment value as a perk of carrying out surveillance. Some male monitors may disproportionately focus on female patrons --a kind of “sport” or “recreational” targeting. If correct, on balance this is likely less socially harmful than focusing on ethnic minorities or youth. 30 In the latter cases, absent grounds for suspicion, an assumption of fairness is violated and may have the consequence of discovering violations among these groups that will not be found in groups less closely regarded. Given the general absence of adequate data on either who is targeted or what the true (vs. discovered) rate of violations is by social characteristics, claims here must be speculative (although analysis of video records relative to the size and behavior of the relevant populations could answer this). It might even be argued that without anything alarming to focuse on, observers disproportionately watching those they find sexually or otherwise interesting (particularly if the observed are unaware) may contribute to higher morale and lessened boredom among monitors.

Purging Drugs From the System

Employers who test for drugs seek to purge their system of drugs –whether by deterrence or discovery and exclusion, termination, or rehabilitation. According to Ken Tunnell’s comprehensive and engaging study, many employees also seek to purge their system of drugs. 31 However, the time frame for purging differs: for employers, it is forever, for employees, only to pass the next urine test.

Drug testing highlights several characteristics of the new surveillance. 32 The test is modern in that it probatively goes beneath surfaces and confidently seeks supposedly scientific evidence. It is largely (and may soon) be fully automated. 33 In the workplace, it is usually used as a form of mass surveillance. As with video it can be applied in a categorical fashion, not simply when suspicions justify crossing a personal border. In reflecting a surveillance non-society, it communicates distrust, reversing any presumption of innocence or need for authorities to prove guilt. Rather the job (or other) applicants have an obligation to prove their innocence via body remnants showing that they do not use drugs and therefore may more broadly be presumed to be a certain kind of person.

The tactic can be a passive form of self-incrimination. It coercively peers into aspects of the body independent of the subject’s will, although some degree of will is required in offering the sample (assuming the use to which a urine sample will be put is known). However since providing the sample is tied to things the person needs such as employment, the meaning of voluntary is open to discussion. 34

While concrete and precise in yielding biochemical data (e.g., relative to many psychological tests that also claim to peer within to reveal the hidden or true person), the drug test is still inferential, relying on indirect correlational evidence presumed to be predictive, rather than on direct measurement or on observation of the literal presence of drugs or impairment. In one way it is also curiously premodern in asking not what the person can do, but what kind of a person the individual is presumed to be.

Much resistance to surveillance involves running away or blocking visibility-whether by wearing masks or gloves or by exploiting natural weaknesses such as dead spots that block radio transmissions or columns that block the video lens. Resistance to drug testing is in a sense bolder in directly engaging the data collection apparatus through a kind of surreptitious jujitsu in which the aura of scientific testing is used to validate an invalid claim.

Tunnell’s study is concerned with “drug testing, the products used to subvert it, and the methods used by workers and would be workers (p. 157). The research relies on qualitative interviews with corporate spokespersons, lab officials, and medical review officers responsible for drug testing, as well as manufacturers, retail merchants, and consumers of detox products. Secondary data from government and industry documents are also used to describe a classic social control and deviance (and conflict more broadly) process: the cycle of control, neutralization, and counter-neutralization.

Tunnell describes the social and political changes that have resulted in the emergence of a multi-billion-dollar drug-testing industry and the subsequent rise of an industry to counter this. As with many recent control innovations this trend began with the military. 35 However unlike importations such as night vision and heat-sensing technology, this testing was directed internally rather than at external enemies.

Tunnell convincingly argues that the development of workplace drug testing reflects politics and the actions of moral and economic entrepreneurs generating and responding to public concerns, rather than an objectively measured increase in the severity of drugs as a social problem, or even credible studies directly tying drug abuse per se to broad measures of industrial productivity or workplace illness and accidents. This process of defining a social problem (sometimes bordering on hysteria) apart from objective measures of the harm or trend in the phenomenon is well known to students of other social issues. There is little research documenting that drugs are as serious a problem in the workplace as testing advocates claim, nor comparing them to other sources of problems such as alcohol and fatigue. Nor, when a problem does exist, are there data to suggest that urine testing is the best strategy. The symbolic and political play a much larger role here than with many of the other techniques. Without government incentives and requirements such a massive program would not likely continue in bottom-line profit-making organizations, absent better empirical justification.

What is distinctive and most important about Tunnell’s book is the information he offers on the emergence of the detox industry as a counter to the testing industry. Gilliom’s isolated welfare resisters had to rely largely on their own creativity. Tunnell’s subjects have an entire industry supporting them, numerous web and print publications, and a 24-hour High Times magazine hotline devoted to defeating drug tests. 36 The news is also brought by popular films such as American Beauty, in which an adolescent pot smoker/seller reports that he doesn’t worry about drug testing because he substitutes clean urine for his own.

With names such as Urine Luck (say it slowly), THC Terminator, and Fast Flush, the products are sold from locked compartments in health food stores, head shops, drug stores, and by mail. The detox products are designed to increase urination, disguising and/or flushing drug residue from the body. Users abstain from drug use, drink large quantities of water, and take the product. A distorting substance may also be surreptitiously added to the external sample. The goal is to create a false negative or an otherwise unusable sample (although that can be a giveaway). For the less frequently used hair tests, there are detox creams and shampoos that claim to rinse away residue.

If so much else having a moral quality can be commodified – life itself, the earth’s resources, body parts, sex, crime, fear, and security, so too can the means for countering drug testing. The context offers marketing opportunities for all parties. The drug-testing and detox industries illustrate a paradoxical symbiosis. Some businesses even sell both drug testing and drug detox products, paralleling those that sell both electronic surveillance and counter-surveillance means. Business is business.

The drug-testing industry has an interest in the continuance of perceptions of drugs as a major social problem. The detox industry, while self-righteously low on the war on drugs, also has a strong interest in its continuance. The language used in selling their respective products offers interesting contrasts. The adds for drug detoxification are in general muted and indirect, playing up vague higher values of liberty, freedom, and fairness that legitimate breaking the rule rather than directly attacking the rule or advocating anything illegal. 37 In contrast, drug-testing entrepreneurs market the dangers and risk to companies from the drug problem, ignoring issues of personal border crossing, validity, and other means.

In generating new products, the companies may also need each other. As we will note, the presence of the detox industry has created a market for drug testers to peddle additional tests to determine if a detox product has been used (a crime in some states). This then gives anti-testers the opportunity to offer yet another product to counter the secondary discovery product.


The book also alerts us to the variation that needs to be understood for social science purposes and to answer the "Is it good or bad?” question. For example: When is testing done (pre-employment, or once employed, transferred, promoted or on exiting the role? 38 If periodically done is this on an announced or random schedule? Who is tested - all or only selected categories – hourly employees, those in “sensitive” positions, those there is some reason to suspect? What is tested for? (drugs, alcohol, steroids, impairment, susceptibility to workplace hazards). Why is the testing ostensibly done? Which specific test(s) are used and on what (urine, hair, saliva, perspiration, blood, fingernails, eyes, breath), and how do they vary, in reliability, and validity, competence of tests and testers? Where is the cutoff point regarding the concentration of metabolites for drawing conclusions? 39 Can the tested challenge results? How are positive results used? 40 What are the correlates of a “one strike and you’re out” policy and with what consequences? Are there equivalent “one hit and you’re hired” assessments? 41

Tunnell’s workplace focus can be usefully contrasted with the drug testing of those in the criminal justice system, athletes, 42 children and candidates for public office. 43 Here we again see the multiplicity of goals that can be attached to a given tactic.

This book overflows with clearly presented historical and descriptive information on drug testing strained through theoretical snippets on postmodernism, mass society, bureaucracy, surveillance, and deviance and social control. 44 Notions such as discipline, dialectic, commodification, role distance, and status degradation are offered to interpret the data and seem plausible. However, explanations are not offered in a form that might be falsified, and the evidentiary base for some of the assertions could be stronger. 45

The study is admirable for its big-picture breadth and focus on both the controllers and the controlled. Such a focus would be unremarkable were it not so rare. For a variety of reasons related to discipline, specialization, professional, sponsorship, access, politics and ideological reasons, researchers tend to statically emphasize one or the other group (most often those doing the surveillance) and ignore their interaction.

In Search of a Better Language: Conceptual Burs and Blurs

Taken together, these books nicely illustrate the need to unpack and disentangle the snarl of surveillance dimensions and related concepts in the face of new technologies and social practices, as well as to synthesize them into a broader framework. Toward this end I will consider some blurred meanings of the terms public and private and some basic characteristics of surveillance structures, goals, social processes, and criteria for judgments.

In linking his surveillance experience with that of his subjects, Gilliom observes, “like Mary, Deliah, and the others, we have a shared condition as subjects of a surveillance society. 46 We are all watched, we are all angry, and we are all afraid. And we are increasingly without a language to speak about it” 47 (p.150).

For sustaining liberty and academic understanding (factors that one hopes are reciprocally related), I am in strong agreement about lacking an adequate language to discuss surveillance. It is vital to appreciate the breadth, power, opportunities, and risks of the new surveillance. We need better ways of conceptualizing, contrasting, and measuring surveillance-whether involving traditional forms, such as searches and informers; those that have become familiar, such as drug testing, computer matching and profiling, Internet monitoring and cell phone cameras; those that will be become familiar such as radio frequency identification chips in consumer goods, people, and animals; or those that might become familiar such as facial recognition, gait, scent and brain waves for identification or as clues to feelings and guilty (and other) knowledge.

I find it useful to begin from a broad sociology-of-information framework that consists of types of access to the person. 48 I start with a strictly behavioral, content-neutral dimension involving whether or not a border of the person is crossed. Border crossings may involve taking information from the person (the topic of these books) or imposing stimuli upon the person. 49 It is difficult to find a neutral term for such border crossings. 50 One aspect of this topic involves notions about the private and public.

The P Words

The terms public and private have both existential and normative meanings. 51 When collectors of surveillance information cross a protective, “hard” physical barrier (e.g., walls, skin, distance or darkness, or a “soft” social and cultural barrier (e.g., a relationship of confidentiality or an individual compelled to disclose information), what had been empirically “private” (as in not known or accessible to the discovery agent) becomes known and to varying degrees “public” in its visibility, apart from the appropriateness or inappropriateness of the information collection. Such crossings are made easier by the increasingly networked nature of previously discrete interactions (whether involving communication or consumption) and by the ability to easily reproduce visual and aural documentation of what previously perished as soon as it occurred.

When Newburn and Hayman note that previous research has focused on “public space,” they appear to mean both space that is publicly viewable and legally public, as in accessible to anyone (e.g., most streets, parks, malls), regardless of whether it is controllable by government or the private sector. In contrast, their study focuses on “a rather different form of ‘space’” (p. 2), one that is not traditionally viewable or accessible to anyone who desires it, even if it involves a “public” as against a “private” institution. 52

Normative personal border crossings may, as in the case of some of the prison surveillance, violate general cultural expectations about how personal information is to be treated. The crossing of a personal border may or may not involve a violation of legal privacy rights. Thus, a legitimate search warrant that results in the discovery of drugs hidden in a home or on, or in, the body certainly enters the private space and goes against the preference of the subject, but it is not an illegal invasion of privacy.

In contrast the search of Gilliom’s home involved both a legal and a cultural crossing of a personal border. The new welfare controls he studied cross a general cultural border (e.g. strangers normally don’t ask and the individual isn’t expected to reveal the kind of information demanded of welfare clients), but not a clearly defined legal border. 53

In both cases the empirical status of what was private is altered, but the moral status of these is not the same. Gilliom’s experience of being subjected to a search once agents learned that the warrant was in error (perhaps, as he suggests, as part of a law-enforcement vendetta), is a clear invasion of legal privacy rights. In contrast his welfare subjects are at least informed of what the rules are and of the kind of surveillance that may be carried out when they seek assistance. There is a contractual element here, and something is received in return for their waiving traditional expectations of privacy, even if this is a duress-filled or seductive “consent” given what is offered in return for it. The pro-social efficiency and eligibility compliance norms (some involving criminal law) that can be used to legitimate the new welfare controls are absent in the ransacking of Gilliom’s home.

Making this distinction helps to contrast the two kinds of surveillance Gilliom considers. He offers no evidence for the illegal crossing of welfare recipient’s personal borders. In applying the narrow standard of procedural legality. Judged by a content standard, however, the rules make it harder for recipients to support their families and to many observers that is harsh and immoral, let alone dumb and self-defeating public policy, given a longer time frame and broader perspective. This distinction of course gets to reoccurring issues about the meaning of legality and justice and higher standards beyond formal laws and policy.

Additional conceptual difficulties result from the appearance of new forms, whether involving technology, as with video, or social arrangements, as with new land-use patterns or forms of work involving telecommuting that may blur the public and the private. We see the former in the location of “public” services and resources (whether those offered by government or those open to the “public”) within private and quasi-private property settings, such as malls or industrial and university complexes (see for example the essays in Shearing and Stenning 1987).

The appearance of omniscient organizations (Marx 1990) with access to ever more elements of the “private” person whether at a geographical workplace or away (e.g., at home) also suggests blurred categories. 54

We see it in the technical and interpersonal information exchanges between public- and private- sector agencies, whether involving linked computers or public-private surveillance associations and personal networks such as those studied by McCahill. It can be seen in joint government/business law-enforcement operations involving insurance fraud and music and video piracy. We see it in greater government access to private databases (e.g., communications, credit card transactions, airlines, libraries) and in private sector repackaging of government data.

We see it when technologies overflow traditional borders, as when a mall camera looks beyond the mall to a “public” street, or a “public” street camera reveals the interior of a “private” shop, home, or car. We see it when here-to-fore meaningless personal data coming from a private (as in legally protected place) come to a public place and are suddenly given meaning through a new technology. Consider, for example thermal imaging technology, in which heat from inside a house is picked up by a device outside the protected area of the house. In the same way, night- vision technology takes what had been existentially private (regardless of whether it is in a legally protected private or public place) and makes its visible. Note also the blurring when partially “private” communication via cell phone or email occurs in public places. Although in “public,” the communicator has withdrawn from interaction with those co-present. Conversely, those in cyberspace as with a posting to a computer discussion (Usnet) group have public access to the message content, but information on the communicator (name, appearance, location) can remain “private.”

Through privatization public powers are also delegated to private contract police. Here private organizations are to serve public goals. There also appears to be increased circulation of personnel, particularly from the public to the private sector as the private security industry has grown.

Consider also increased government efforts to involve citizens in law enforcement. Beyond the local Neighborhood Watch programs we now see the Air Force’s EagleEyes, a police sponsored C.A.T. EYES (Community Anti-Terrorism Training Initiative) 55 and other programs encouraging truckers and taxi drivers to report suspicious activity. Such efforts draw on the higher civic traditions of democratic participation, self-help, and community. Yet these can also blur the lines between the state and civil sectors, an element of the “public” and “private” central to American and secular traditions.

In the current climate these public-private changes are a strand of a broader tapestry of blurred borders involving the-once clearer distinctions between national and international authority, foreign and domestic police, military and police, and intelligence gathering and criminal prosecution. 56 This expanding empirical haze raises vital issues with respect to accountability, legitimacy, public goals, and democratic decision making.

Within this conceptual murk there is clearly a major need to elucidate new meanings for many of our traditional concepts and to study the consequences of these changes and how they are negotiated. The blurring of previously distinct borders and the new access to previously unavailable and/or compartmentalized information involve factors that enhance liberty as well as monkey business, and conclusions about the social consequences of these changes must be careful and qualified.

Apart from questions about the empirically accuracy of Max Weber’s emphasis on the state as having a legitimate monopoly on the means of violence ever was (especially in gun-friendly countries such as the United States), it needs additionally to be reconsidered in light of the new softer forms of domestic control which (at least domestically) push violence to the sidelines and which are increasingly within the purview of the private sector, or some opaque, hybrid, rarely studied private-public form that can easily slip from view.

Surveillance Structures

Several kinds of social structure define surveillance relationships. 57

These four books offer examples of organizational surveillance, involving both internal and external constituencies, which is nonreciprocal and directed at individuals in government and commercial settings. As socially, theoretically, and quantitatively significant as these forms are, they need to be located within a broader framework involving other kinds of surveillance. Both scientific understanding and policy require this.

With respect to the roles that are played, we can identify the surveillance agent (or surveillant, watcher, observer, seeker, inspector, monitor) who desires personal information about a surveillance subject (or watched, target, suspect, person of interest). All persons play both roles, although hardly in the same form or degree, and this shifts depending on the context and over the life cycle, and the roles are sometimes blurred. The roles may also be joined in the increasingly common forms of self-surveillance, whether through technology (e.g., means for checking inebriation, fertility, blood pressure) or in the classic deterrence sense of watching one’s behavior because of the awareness of possible external surveillance and sanctioning.

Within the surveillance-agent category, the surveillance function may be central to the role, as with police, private detectives, spies, work supervisors, and investigative reporters. Or it may simply be a peripheral part of a broader role whose main goals are elsewhere, as with checkout clerks who are trained to also look for shoplifters, or dentists who are encouraged (or required) to report suspected child abuse when seeing bruises on the face. We currently see both ever-greater social control specialization and ever-increasing amendment of a secondary social control function to other roles.

Organizational surveillance is distinct from the nonorganizational surveillance (or personal surveillance) carried about by individuals. In both cases, however, the surveillance subject may be an individual or an organization. This distinction suggests four types for analysis: (surveillance by organizations of individuals or of other organizations, or surveillance by individuals of other individuals or organizations.

The first form receives the most media and research attention and with respect to justice issues may be the most salient, given its implications for life chances (Gandy 1993, Lyon 2003). The interorganizational surveillance playing fields are more level. Individuals commonly watch other individuals outside of their organizational roles. Clearly this type is undeserving of its research neglect. This non-organizational surveillance is encouraged by the widespread accessibility of new surveillance techniques and the perception that they are needed and justified, whether for protection, strategic, or recreational/prurient reasons.

Such personal watching may involve role relationship surveillance as with family members (parents and children, the suspicious spouse) or friends looking out for each other (e.g., monitoring location through a cell phone). Or it can involve non-role relationship surveillance, as with the free-floating activities of the voyeur whose recreational watching does not seek to influence the subject and is unconnected to a legitimate role or instrumental goal as those roles are usually understood. Here, rather, the means and the end are collapsed (Marx 2003).

At the organizational level, formal surveillance involves a constituency. Constituency refers broadly to those with some rule-defined relationship or potential connection to the organization. Two forms can be noted. With internal constituency surveillance we see formal organizational membership, whether as an employee, in a voluntary association, or in a “total institution” of the kind studied by Erving Goffman (1961).

External constituency surveillance involves watching those who have (or might have) some patterned contact with the organization (e.g., as customers, suspects, audiences, and/or persons within the organization’s authority), but who do not “belong” to it the way an employee or inmate does. One form is compliance surveillance, seen when an organization with enforcement responsibilities monitors those within its jurisdiction. It seeks to insure that categories of person (or organizations) subject to its rules are in conformance, (e.g., a government agency charged with enforcing health and safety regulations or non-governmental organizations that audit, grant ratings, licenses and certifications). Another major form is prospecting surveillance, in which subjects are sought-whether for marketing ideas, goods, services or interventions.

Organizations also engage in external non-constituency surveillance, that is monitoring their broader environment by watching other organizations and social trends. The rapidly growing field of business intelligence and related areas such as espionage and many research and planning units fit here.

Delusions of Panopticism in Need of Dilution

The conceptual elaboration in the previous section and the empirical data from these books can serve as a corrective to those who vulgarize the complex and sometimes contradictory Foucaultian perspective of new forms of technical surveillance as having only one major goal and consequence–elite domination. 58 Not only does this wooden view impute far more homogeneity, unity, skill, and power to elites than they generally possess in a democratic society, it ignores differential impacts and the variety of surveillance goals, roles, uses, and contexts–particularly when the technologies are widely available and become ever simpler to use. It further downplays individual and group creativity in resisting new, unwanted control efforts, and it ignores the ironic vulnerabilities found with most complex systems of control.

Those in the broad-brush surveillance-as-domination tradition assume that power differentials are always present and that surveillance necessarily serves the goals of the powerful as against the less powerful. Too often goals are assumed rather than clearly specified. As these studies suggest however, there is rarely only one goal. 59 Moreover the generality of goals permits their applied meaning to be contested, and new goals may appear. Central factors to consider are whether the surveillance is reciprocal or non-reciprocal and whether there is consensus or dissensus with respect to goals on the part of the agent and subject.

Reciprocal surveillance is mutual or bidirectional and tends to be found in contexts where power differences are absent or less significant. Consider the reciprocal surveillance in turn-taking card games, hide and seek, and team sports. In the less-rule-bound settings of business and nation-state rivalries, we see reciprocal (if not necessarily equal) surveillance. Intelligence agents, whether working for rival companies or countries, are often mirror images of each other. They offensively seek to discover their opponent’s information and defensively to protect their own. When the parties are roughly equivalent we can speak of symmetrical reciprocal surveillance. Beyond games, this form characterizes many contractual agreements and treaties (e.g., the mutual deterrence of nuclear arms control).

Nonreciprocal surveillance is one-way surveillance, with personal data going from the watched (subject) to the watcher (agent). In such contexts we may appropriately view surveillance as social control --whether the power differentials involve guards and prisoners, police and suspects, teachers and students, parents and children, psychiatrists and patients, 60 owners and slaves, managers and employees, homeland security agents and travelers or merchants and customers. 61 Surveillance information tends to be onesided and is used to control, manage, affect, and make decisions about the subject.

While such surveillance is more characteristic of bureaucratic organizations (a form partly defined by norms reflecting differential authority), it is hardly restricted to them, nor are these organizations defined only by asymmetry and lack of reciprocity. When surveillance is used as a form of control, we need to differentiate cases of domination in which the interests of the parties diverge, from instances of support/guidance in which they converge. Whether a control situation is seen to involve domination depends on whose goals are intended to be served and the nature of the goals. In considering whose goals are served we can note four broad categories: elites who seek to rationally set policy in pursuit of their interests, surveillance agents who carry it out, subjects/targets of surveillance, and the broader society or community (which is even harder to define). In a given situation we can then ask, “Is the surveillance in the interest of, irrelevant to, or in opposition to the group in question?” Given the multiplicity (and often lack of specificity) of surveillance goals and the variety of surveillance roles played by the same person, answering this can be challenging. 62 What you see partly depends on where you look, as much or more as where you stand depends on where you sit. Surveillance as domination or support may be present serially or simultaneously (and for the same blurred surveillance agent-subjects).

These books and much other evidence suggest the need to counter and qualify a simple, unreconstructed panoptic view. In turning the kaleidoscope we see that serving elite interests is not necessarily always opposed (or opposed in all ways) to the interests of those who are watched. In addition, the technology may diffuse throughout the society, having unintended consequences and serving interests beyond those of the elites who introduce it and may initially have access to it.

New syles of electronic living in some ways alter the traditional relationship between surveillance and stratification. For Orwell it was not the masses but the elites who were most closely watched. 63 As life comes to imitate art, contemporary electronic lifestyles reverse some aspects of the traditional relationship between stratification and surveillance, at least with respect to documentary records of behavior. The deep immersion of the more privileged in remotely mediated forms of communication comes with some new ironic vulnerabilities. Excluding their greater pregnability to being observed in public places, in being unplugged the poor and transitory homeless, are in some ways less subject to surveillance than the more privileged and located. 64 Contrast the latter’s telephone, fax, computer, bank, credit, employment, medical, and travel electronic trail- and tale-leaving behavior. Much of this every-day-life visibility is distinct from the norms and role performances involving insulation from observability for the privileged within bureaucratic organizations studied by Coser (1961). 65

Even just looking to traditional organizational contexts, we see some shared (or at least nonoppositional) goals between watched and watchers. Shoppers seek a comfortable and safe environment and prices not increased by high rates of theft. Identifying safety hazards, finding lost children, and offering aid to injured customers are further social goods offered by mall videos. When doing nothing wrong ,those under 30, raised on video games, computer images, and seeing themselves on TV in countless home videos, may even consider the camera a form of self-validation –not unlike older generations’ watching their reflection in the mirror of a store or car window.

Since the early modern period, asylum has meant a sanctuary offering protection. In that sense inmates want to be protected from each other and from guards and helped if they become ill. In generating documentary records, surveillance can help overcome the tilt toward favoring the accounts of those higher in status (e.g., audio and/or video of police abuse, government corruption, and harrassment). Surveillance as a work-monitoring tool can reward good performance, help in training, and aid efficiency and fairness. A successful business means jobs. Excluding drugged workers may protect fellow workers and the public. Video surveillance may protect employees from customers. And when the interests of surveillance agents and management diverge, the former may sometimes turn the technology to their advantage. As the next section notes, subjects of surveillance may become agents as well, manipulating the tools in opposition to elite interests. Conclusions about the meaning of surveillance must be sought in the context and attend to the interpretations of different actors and audiences.

Effectiveness and Acquiescence?

The panoptic vision of contemporary events in democratic societies, whether inspired by technophilia or technophobia, puts undue emphasis on the technology’s presumed effectiveness and on the passivity of those subjected to it. Yet as these studies suggest, the situation is much more complicated.

The variation they find nicely illustrates the complexity and the mediation of the human in the face of standardized technologies. This variation serves to moderate the pessimism of the theoretical surveillance essays noted in the beginning of this review. Novelists and social scientists who debunk the rhetorical excesses of technological determinists 66 as well as moral and economic surveillance entrepeneurs advocating (or forecasting) technical fixes know that things do not necessarily work as planned. As the Wizard of Oz reminds us, persons behind the curtain (and the microphone) there are persons show varying degrees of competence, motivation and integrity and sometimes the power goes off.

Videorecording, drug testing, and computer matching, like other surveillance forms, grow out of, and enter into, on-going social systems. McCahill is particularly helpful here in documenting the limiting role of social relationships on panoptic systems. Living in the monitored housing project, or having friends or family who work in other security contexts, can condition the effectiveness of the technology and the powerful integrative potential of networks. Tunnell notes how first-line drug testers may treat their job in an indifferent and highly ritualized manner. Newburn and Hayman consider ways that police avoid the camera’s hunger. Gilliom notes the sometimes less than adversarial relationship between welfare agents and recipients.

Whether the full surveillance potential is realized depends on context, interpretation and the kinds of interpersonal ties among control personnel. To reverse the phrase, where there is a way there is not necessarily always a will. The surveillance behavior desired by elites is not automatic and may depend on where and who their agents are. McCahill documents how those who monitor the video screens have their own interests. The technology may be used to further these rather than those of management. When security officers low in status and pay monitor their own locales and persons like themselves (e.g., in the British housing project mall), the results may be other than those promised in advertisements or feared in dystopian accounts. Groucho is sometimes a better guide than Karl.

More generally, considerable research has documented the frequent gap between the potential of a tool and its realization (Manning 1992, 1996; Chan 2003; Haggerty and Ericson 1997; Meehan 1998) on police Machines must be turned on, working, and within the skill range of those who work them –then, for computers, relevant data of good quality must be entered and drawn upon; cameras must be pointed in the appropriate direction and monitored; and a chain of custody must be maintained over uncontaminated biometric evidence. Those applying the technology need the competence, resources, and motivation to use it. The natural organizational tendency to protect information is even more pronounced in conflict settings, and police in particular have traditionally been hesitant to share their information. Even when data of good quality are available, police often lack the resources to put it to maximum use. 67

Beyond complex interdependent systems, multiple goals, and limitations on predicting the future, the characteristics of surveillance technologies such as automaticity and speed that make them appealing to planners are tempered and not infrequently thwarted by humans charged with applying the technologies who have other characteristics (e.g., self-interest, empathy, personal networks, prejudice, and lack of skill or motivation). The technologies may also be undermined by their subjects. These books offer ample evidence of opposition as subjects seek to neutralize or alter the surveillance they face.

Social Dynamics: Neutralization

It may well be doubted whether human ingenuity can construct an enigma of the kind which human ingenuity may not by proper application resolve.

          —Edgar Allen Poe, The Gold Bug

Whatever one’s moral position on surveillance-related behaviors or penchant for teasing out underlying structures, it is useful to view them dynamically. Part of the fascination of the study of rule enforcement and rule breaking lies in their fluid and changing nature, as groups in interaction reciprocally and continuously adjust their tactics to each other. These books contribute to our understanding of this process.

I have identified a number of behavioral techniques of neutralization –strategic moves by which subjects of surveillance seek to subvert the collection of personal information (Marx 2003). Some of these concepts can be used to order the examples offered by the books (direct refusal, discovery, avoidance, cooperation, switching, distorting, blocking, masking, counter-surveillance and counter-neutralization). 68

Consider drug testing. One type of refusal move is literally in just saying, “No, I won’t take a urine test.” Or in the immortal words of an early anti-drug activist, “We won’t drop our zipper for the Gipper.” 69 More common is refusal via feigned inability to offer the sample in spite of trying. Having a shaved head when one is expected to provide a hair sample is another, although this can raise suspicion and it is culturally less available to women. Hair can also be requested from other parts of the body.

Social systems often leak, and the date of a supposed random or surprise test or search can sometimes be inferred involving a discovery move. In some work settings, once tested, an employee can’t be tested until all other employees have been. When testing is offsite, employees often receive prior notice of where to go. Such foreknowledge permits avoidance moves involving abstinence, the hiding or destroying of incriminating material, not going to work on that day, or leaving early because one is ill. Avoidance can also be seen in Newburn and Hayman’s report that police who do not wish to be recorded retreated to a room with no electronic surveillance.

A technique that appeared before detox products were available is switching in which drugfree urine (whether purchased commercially in liquid or powdered form, or obtained from a friend) replaces the person’s own. 70

Switching is helped by being unobserved in delivering the sample. Yet even direct observation can be fooled. Consider the enterprising athlete who used a catheter to insert his girlfriend’s drugfree urine into his own system (unfortunately, he was discovered because although the sample showed no sign of drug use, it did indicate a pregnancy). 71 For those males wary of catheters, there is always the re-usable $150 “Whizzinator” available in five different flesh colors --an “easy to conceal, easy to use urinating device using a very realistic prosthetic penis and synthetic urine” ( A female version is also available.

Distorting responses manipulate the surveillance-collection process such that while offering technically valid results, invalid inferences are drawn. The would-be evidence is rendered inconsequential, hidden, or eliminated. With diuretics the goal is to flush the system by drinking large quantities of water, thus washing away the evidence. Detox substances (whether garden-variety aspirin or the more expensive products) are intended to disguise drug residue. Various adulterating additives such as bleach, detergent, or salt and other substances can also be added. A positive result may also be defined (explained away as a false positive) as a result of cross-reacting medicines or foods. Those to be tested may eat food or take medications that are known to produce positive results or they may simply indicate on the form filled out before the drug test that they have done this.

Blocking calls explicit attention to the communicative aspects of surveillance, as subjects seek to physically stop the information flow via a barrier. Some of the English prisoners, for example, covered the camera lens with food or toilet paper. In the mall studied by McCahill, a patrol guard reports that he likes to visit the control room because, “you can see where all the blind spots are for when you want to stop and talk” (p. 145). Shoplifters may line their shopping bags with aluminum foil to foil the sensors on electronically tagged goods.

Masking involves blocking, because the original information is shielded, but it goes beyond the former to involve deception with respect to the identity, status, and/or location of the person or material of surveillance interest. Gilliom’s account of how income earned by welfare recipients can be shielded through payment to others illustrates this.

Given empathy and the multiplicity of actors and interests in complex organizations, various cooperative moves in which controllers aid the controlled are common. Thus a coach may indirectly communicate that a drug test is coming. Gilliom reports how some caseworkers helped recipients in evading stringent requirements. McCahill observes the hesitancy of some mall guards to follow up on minor infractions involving people they know. Tunnell notes how minimum-wage drug testers may be less than vigilant as they settle into routine processing of their work material.

Counter-surveillance involves an ironic turning of the tables in which the very technologies used to control others come to be used to advance the interests of those controlled. Thus, facing a urine drug test, employees can first experiment at home, testing themselves with a variety of readily available products like those used in the official test. The timing and amount of drug usage may then be calibrated to meet the threshold for passing the test. Here a tool designed to combat drug use instead serves to protect it through direct engagement with what Moore and Haggerty (2001 p. 390) call, “the particularities of an observational regime.”

The tool may also be turned directly against those in charge. Thus, as a means of eluding supervision, guards may track their supervisors. McCahill, for example, reports an incident in which monitors “…turn the radio up and take it easy while the operations manager and the security manager are off the site” v(p. 145). The wide availability of most of the new surveillance tools (or means of detecting them when used secretly) may offer the surveilled the chance to turn the usual stratification tables. The resulting data can be used defensively or to coerce those in positions of authority.

Responding to demand, the market system increasingly offers technologies and services for protecting personal information, from shredders to tools for finding hidden cameras to home security systems to various software and privacy-protection services. Encryption, for example, offers the potential for a degree of confidentiality in communication as well as enhanced accountability and data protection never before seen.

The commodification found in liberal economic and political societies also adds to the ironies of social control. In such societies individuals and organizations often have the space and resources to legitimately defend themselves against illegitimate surveillance, but they also have the means to pursue socially harmful activities under the guise of competing values, such as economic freedom, freedom of expression, and privacy.

Karl Marx was wrong (at least so far) about capitalist societies containing within them the seeds of their own destruction. Yet a free market economy with civil liberties does contain the seeds for the destruction, or at least limitation of many rules –whether fuzz busters to beat speed limits, kits for indoor illegal drug cultivation, out-of-state purchases to avoid taxes, the easy availability of information on how to convert legal to illegal guns, or the application of duo-use technologies such as software and photocopiers to reproduce proprietary music and videos and create fake documents.

Varieties of Acceptance and Resistance

There is a major need to systematically explore varieties of overt and covert responses to surveillance both within a given form and across forms of surveillance. These responses may involve either, or both, a refusal to participate and efforts to sabotage outcomes, and they may be linked to, or independent of a social movement organization.

We can expand Merton’s (1959) distinction between attitudinal and behavioral conformity with that of “real” and “feigned” conformity to identify/contrast four major empirical groups: true conformists: persons who attitudinally and behaviorally accept the surveillance; intimidated conformists: persons who attitudinally reject, but behaviorally accept, the surveillance; true rebels: persons who attitudinally and behaviorally reject the surveillance; feigned conformists or manipulators: persons who attitudinally reject the surveillance feigning conformity while covertly seeking to defeat/neutralize it. Gilliom’s welfare dissemblers and Tunnell’s drug test resistors are manipulators. A fuller understanding requires knowing about the distribution and correlates of these forms.

We may also ask about the impact of individual responses and whether, and in what ways, they are “political.”. Under what conditions, for example, are nonorganizational forms of resistance effective in meeting material needs and enhancing the individual’s sense of dignity and autonomy? When do such individual actions cumulatively result in unplanned social change, apart from any formal political pressure or legal or policy changes? For example when enough people follow Nancy Reagan’s advice more broadly and just say no to surveillance policies, they are sometimes abandoned as unenforceable, unworkable and unrealistic. 72 But under what conditions does this abandonment occur, as against resistance (if it is known about) being met with increased counter efforts?

How does the presence of a social movement affect such responses and vice versa? Just how individually inventive are these forms of resistance? Do they not often reflect the social currents Blumer (1957) identifies within the ethos of a broader social movement? When do they serve as a form of consciousness raising and pre-politicization in which individual resistance eventually leads to more organized political challenges? And when do they simply remain individualistic responses that inhibit such organized challenges? Under what conditions are individual responses involving subterfuge best seen as political challenges? And when are they dissipating factors that otherwise sustain the status quo? These questions are part of an ongoing debate (e.g., Ewick and Silbey (998; Handler 1992; McCann and March 1995; and Scott 1985). Data on the prior (and subsequent) political behavior of surveillance resistors and their interaction with social movements and policy changes, can shed light on these issues.

One consequence of this concern over surveillance (beyond the availability of offensive and defensive counter-technologies) has been a vast (and barely studied) expansion of laws and policies seeking to limit and regulate the collection of personal information and its subsequent treatment. This is in response to incidents receiving media treatment, 73 and the awareness-raising and lobbying of new organizations such as the Electronic Privacy Information Center and Electronic Frontier Foundation, the Center for Democracy and Technology, Computer Professionals for Social Responsibility, the Privacy Rights Clearing House, and traditional organizations such as the American Civil Liberties Union and Consumers Union. 74 These developments tie to the broader 20th century expansions of civil liberties and civil rights. Whether these changes go far enough, are effective, and how they compare across institutions and cultures are important research questions.

While issues of power and control are central to the kinds of surveillance that become social issues, power is rarely a zero-sum game. Beyond varying degrees of formal and moral normative constraint on power holders, power (whether involving surveillance or other forms) is often limited because it is rooted in conflicting values and interdependency and is expressed on a broad and decentralized scale within a free market economy. A number of factors limit an unleashing of the full potential of the technology: the logistical and economic limits on total monitoring; the interpretive, contextual and indeterminate nature of many human situations; system complexity and interconnectedness; human inventiveness; and the vulnerability of those engaged in surveillance to be compromised or responded to in kind. Neutralization processes such as those suggested in these studies nicely illustrate the complex and changing nature of rule enforcement and rule breaking in a society with an abundance of material and cultural resources for both. In spite of doomsday scenarios with respect to the death of privacy and liberty, in societies with liberal democratic economic and political systems, the advantages of technological and other strategic surveillance developments are sometimes short-lived and contain ironic vulnerabilities.

The above factors should serve as a humbling reminder of the need for skepticism in the face of unreflective paranoia and oversold technical surveillance fixes introduced into heterogeneous social contexts, even as the need for vigilance never ceases. In spite of the presence of countervailing and complicating factors, on balance an asymetricality in formal surveillance and information rights within hierarchical organizations and other stratified settings remains. 75 This asymmetricality (however far from absolute, as the preceeding sections suggest) is not always easy to see because it is so embedded in the physical and cultural environment. Imaginative norm-breaching and -bending experiments such as those by Steve Mann and his colleagues help identify it (Mann, Nolan and Wellman). 76

Empirical Predictions vs. Ideological Warnings

As the discussion in the preceding sections suggests the imminent arrival of the panoptic dystopia seems doubtful. We have suggested concepts that take account of the major forms of surveillance and noted the multiplicity of contending groups, goals, and unintended consequences. Factors such as competing values, resource limitations, neutralization, and inherent ironies limit control efforts, no matter how technically sophisticated or legally supported. While these hardly offer grounds for complacency or for celebrating the arrival of a shining city of dignity and liberty on the hill, they do offer grounds for tempering deep pessimism and indicate areas for research.

Here it is important to differentiate statements about contemporary empirical events from empirically informed predictions about the future. In turn one must keep those distinct from warnings 77 about dangerous potentials and what could 78 happen, given the uncharted moral, legal, and behavioral territory traversed by new technologies and the impact of inequality in resources on the development and use of innovations. These statements with at least some empirical grounding in turn are distinct from works of pure “science fiction” unbounded by known natural laws and social patterns.

George Orwell said that he offered a warning, not a prediction. The social (although not the social scientific) significance of his work is hardly diminished because we have seen the opposite of so many of the things that he warned about. 79 Such warnings may intentionally help create conditions that mitigate potential problems.

The writer, of course, has an obligation to be clear about what game he or she is playing and to keep warnings distinct from empirical findings and firm predictions. This is not always easy to do given the monumental horror of the dystopias we seek to avoid. It is a sad fact of political life that warnings seem more likely to receive public attention when they are offered as resolute empirical predictions, rather than simply as balanced statements about possible futures. This unfortunately works against scholarly moderation.

So Is the Jungle

When operating within the scholarly empirical tradition, a broader view of the prosocial and even antielite domination functions of surveillance and of the complexities of control is certainly required. Yet if the more draconian domination view of surveillance needs to share the stage with other views, that does not mean it ceases to play a leading role, nor that the playing field is adequately horizontal.

The same technology with some benign applications for customers, prisoners, or employees is still applied in nonreciprocal hierarchical settings where goals conflict. 80 The technologies are also applied to employees as a work-monitoring (read control) tool, preserving for management’s use the previously transient flows of temporally and often geographically separated actions of low visibility.

The traditional irony that finds control agents in total institutions imprisoned while at work remains and is enlarged by the potential of the new technology to identify, track, and document whatever it encounters. The prison guards whose actions are watched and recorded are themselves subordinate within the prison bureaucracy. The guards union does not appear to have any say about the cameras.

The “uncertainty of control” ethos regarding whether one is watched, and whether the world is as it appears applies to the monitoring of the guards as well as the guarded. In the high visibility conditions of McCahill’s wired malls, for example, the guards never know whether they are being watched on camera, listened to on the radio network, or secretly tested (e.g., observation of their response to a fake alarm). Such information can be misused by management, being held in abeyance and used cumulatively, perhaps out of context long after it occurs.

George Orwell was once asked, “Isn’t technology neutral?” To which he is said to have replied, “Yes, and so is the jungle.” As with Orwell’s equality in Animal Farm, surveillance is more neutral for some than for others.

In the prison studied by Newburn and Hayman, regardless of the omnivorous potential of the lens, it is unlikely to include a camera or audio recording of what goes on in the warden’s office or recreational room for guards, nor in the bathroom they use. 81 The inmates’ cells have no monitors which permit them to watch the guards, nor can they legally have cell-phone cameras or even cell phones. 82

It is important to acknowledge the sense in which the technology is (and can be) neutral, even if the chances of being caught by it are not. The actual use of a technology needs to be considered apart from its potential use. Part of the neutrality or equality-of-technology argument is equivalent to Anatole France’s observation about the equality of the law with respect to the bridge somnolence of the rich and the poor. Certainly the camera, audio recorder, or motion detector will avoid discrimination based on the usual characteristics and capture whatever is encountered. This can introduce fairness and help sand some of the rough edges of stratification. But this “democractic” potential of the new technology does not mean that all persons and settings have an equivalent chance of being surveilled. 83 Nor are the resources to defend, resist, and challenge (whether cultural or physical) equally or randomly found in stratified societies.

Considering the degree to which actions are observable to outsiders, to what extent are various kinds of personal information aggregated or compartmentalized? One aspect of this central to contemporary controversies involves the ability to merge distinct databases using a universal identifier (whether referring directly to the person’s identity or through pseudonymous or anonymous means). Another aspect involves the literal availability of physical barriers to visibility. Thus the homeless are “in public” not only because they are on city streets, but because they often lack the insulation of walls or vehicles that prevent observation.

Another aspect involves issues of scale and the extent geographical dispersion vs. concentration in the activities of daily life. Consider the differences between the two malls studied by McCahill. The housing project mall was geographically isolated and resources for daily living were highly concentrated (shops, medical facilities, government offices, etc.). In their rootedness and with a lack of insulating resources, residents were more likely than people in the other mall to be under video observation in their daily round (at least by a central monitor) as they shopped, saw a doctor, used the post office, made a telephone call, or sat on a bench. In contrast, the more affluent and mobile patrons of the upscale mall had many more options-vehicles that made transportation to dispersed services easier, backyards for recreation, phones within their homes, and the ability to pay for deliveries.

The rhetoric about the populist democratic arming of subordinates and the public at large with personal computers and recording devices as an antidote or counter to the power of the big guys (an argument Brim 1999 makes more generally) ignores the expanded power found when the same technology is possessed by a giant institutions and that institution can restrict such uses by others. 84

There is also the question of what kind of technology is developed. Consider the following thought experiment. What if those in developing nations, the colonized, workers, the poor, subordinate ethnic groups, the physically and mentally ill, social service agencies, and those in prison had the same resources to develop and implement technologies to serve their needs that are available to developed nations, corporations, the military, and police and corrections? Would we see different technologies and uses? What if the information technology advances we have today had been available during the more idealistic and social reform focus of the early and mid-1960s?

Legal Supports

Beyond the technical developments that permit collecting of personal information involuntarily, there has been a major expansion of laws, policies, and procedures supportive of surveillance. The vast majority of domestic surveillance applications are legal, whether in having been supported by the courts or legislatively mandated (or at least permitted). While, as noted, some of this support is in the form of regulation, much of it serves to legitimate and even require the collection of personal information. Or as with communications legislation, it creates conditions supporting new forms of surveillance. 85 The Patriot Act and related legislation reflect this legitimation.

Other forms remain “legal” in that they are generally unregulated for example, secret videotaping (relative to audiotaping), face recognition, and most forms of work monitoring and testing (e.g., the polygraph is restricted, but equivalent psychological “honesty” tests are not).

Some examples of neutralization noted earlier can be seen as the valiant expression of independence and human contrariness in the face of the control sought by the regimental machine and its sponsors. However, victory may be short-lived. The ironic vulnerabilities of control may also apply to efforts to thwart control.

Identifying neutralization concepts is a static exercise, but in reality the processes are fluid. In conflict, settings Sun Tzu captured this aspect well 2600 years ago: “war has no constant aspect, as water has no constant shape.” Or to continue with that metaphor, control and neutralization efforts are like rocks added to a river –the water seeks a way around them. Neutralization is a dynamic adversarial social dance involving strategic moves and counter-moves.

Just as new means of information collection can lead to innovations in resistance, resistance leads to innovations in the surveillance business. Agents are no more passive than their subjects. Surveillants in turn develop counter-neutralization techniques to discover or otherwise thwart neutralization efforts. Consider, for example, the “unshredder,” a computerized document-reconstruction device that appeared in response to the strip-cut shredder. Athletes taking banned steroids could initially defeat tests by taking thyroid medicine, at least until authorities found a way to check for that. Prisons have accessible traps on toilets that are designed to discover flushed contraband such as weapons, drugs material, and cell phones.

In response to the detox and related drug test neutralization means, controllers have developed counter-neutralization techniques for being sure that the temperature, color, and weight of urine meet an appropriate standard before they are tested for possible drugs. 86 Another test using a simple dipstick claims to identify sample adulteration or substitution (e.g., from bleach, drain cleaners, or look-alike soft drinks). Because such “front end ” screening occurs before the main test for drugs, individuals in a sense must be pre-qualified for the surveillance in question. Those to be tested may be told not to eat certain foods (poppy seed bagels) before the test (although that eliminates the surprise test). As a counter to additives (e.g., salt under the fingernails), those to be drug tested may be required to wash their hands in the presence of an observer. Toilets may be filled with blue dye (an innovation favored by Attorney General Meese) as protection against sample dilution.

Beyond this ability to offer technical counters, authorities may respond with new laws that criminalize the possession of artifacts or activities designed to thwart surveillance. Such rules are intended to deter and punish. Thus, in some states and Canada, it is against the law for drivers to possess a radar detector.

As of 2003 nine states had laws prohibiting the production, distribution, and use of products intended to falsify drug tests (Washington Post 2003). In Texas there have been arrests for using the whizzinator mentioned earlier. The offense consists of possessing a phallic device to provide a false urine sample.

These are forms of secondary deviance involving procedural violations having nothing directly to do with the primary social control goal. These artifactual accretions are a rarely studied contributor to the expansion of law. We also see them with new kinds of violation related to the technology.

Consider the new secondary violation that can be called BUS (behavior unbecoming a shopper). In the less than brave world of the shopping mall, BUS can involve walking a dog or lounging (video-observed activities in McCahill’s study that mobilized corrective action by guards). Or note a new violation that might be termed LUC (lying under camera). Thus, a worker, unaware that he or she has been caught on a hidden camera, who denies a violation such as being in an unauthorized area, is now guilty of being a liar as well as a trespasser. Without the camera the individual would have been less likely to be caught and, if suspected, not given the chance to so easily fail the morality test regarding telling the truth. As with some violations resulting from undercover police practices, this aspect of the infraction is an artifact of the means of control.

In a related example of how the structure of control may affect the nature of the violation, consider the urine drug test. The length of time urine drug metabolites remain in the system varies by type of drug and extent of use (for frequent marijuana use, up to several weeks, while cocaine and heroin wash out in several days or less). Knowledge that only certain drugs are tested for or that drugs remain in the system for varying periods may condition drug behavior. Urine drug testing might have the unintended consequence of encouraging cocaine over marijuana use, since the likelihood of being discovered is much less, and the drug is more quickly expelled. But that is not the case for hair testing since drug metabolites in hair last for several months. Some drug users may also decide to stay with alcohol during the test period (something not usually tested for and requiring a blood or breathanlyzer test) or to take designer drugs for which there is not yet a test.

Finally let us consider the momentum advantage found with inequality in surveillance resources.

Surveillance Creep

A fascinating aspect of surveillance technologies as hegemonic control involves their tendency to expand to new goals, agents, subjects and forms. The surveillance appetite once aroused can be insatiable. A social process of surveillance creep (and sometimes gallop) can often be seen. 87 Here a tool introduced for a specific purpose comes to be used for other purposes, as those with the technology realize its potential and ask, “Why not?”

Surveillance creep can be seen in the social security number (which Congress intended to be used only for employment earnings and contribution data) coming to be used as both a general-purpose universal identification number and in the creeping uses of DNA data as both a means of prediction and expanded identification (Marx 1989, Nelkin and Andrews 2001). 88 Or consider the 1996 National Directory of New Hires intended as a means for states to track parents who failed to pay child support which has been extended to other unpaid debts such as student loans. Note the use of drug tests for factors unrelated to work, such as eligibility for a student loan, public housing and welfare. The bar-coded student photo ID cards initially used only for university business such as the library, have morphed into all purpose building access, debit and credit cards.

It is an easy (and slippery in several senses) move from the consensual work monitoring goals of theft prevention and employee protection to nonconsensual goals involving employee compliance with company rules that are far removed from criminal law (e.g., appropriate greeting of customers, service quality). McCahill documents surveillance creep in noting how cameras introduced to monitor perimeters against uninvited outsiders and to watch shoppers came to be used internally against employees.

When new technologies (by accretion rather than by deliberation and negotiation) come to be used as a general supervisory tool, rather than one for crime prevention or productivity, new issues emerge, such as employee expectations and rights, along with resistance. The camera may be seen as just another management tool to disadvantage workers, rather than as a righteous tactic.

The hunger for more data may generate expanded and more inclusive data base mergers and more powerful data-dredging networks. Consider the National Consumer Telecom Exchange that began in 1998 as a way for telephone companies to exchange information on questionable accounts. By 2002 this had morphed into the much larger National Consumer Telecom and Utilities Exchange which now goes beyond phone service to include the exchange of consumer data on basic utilities, cable, satellite, wireless and internet services. Expansion can also be seen in the increased geographical and temporal reach of tenant screening systems. Data-based forms of surveillance seem particularly prone to the colonization of ever more information and the combining and sharing of databases, although competition among agencies greedy for the data of others, but more hesitant to share their own data, may slow this down.

The means may also require other kinds of surveillance data. Thus, as with fingerprints, the usefulness of DNA as a means of identification requires a population base against which a sample can be compared. To avoid confounding effects, drug testing requires asking a person about medications such as for epilepsy they may take that would otherwise remain private.

As the means become more powerful, they may expand temporally, going farther back in an individual’s past and testing for more things (note a recently developed saliva test for both drugs and alcohol), as well as looking further into the individual’s future (with actions based on predictions relative to ever larger databases). In addition, once a tool is used in a new context other surveillance means may be added. Consider electronic monitoring for those juridically required to remain at home, which began only with locational data and quickly moved to remote audio and video transmissions and telemetric alcohol testing (Corbett and Marx 1991).

Even when goals and technology don’t change, new surveillance agents and subjects may appear. A common process is a progression from use on animals to prisoners, criminal suspects, non-citizens, the ill and children and then throughout the society.

There is a tendency for tactics developed by government for defense and law enforcement to spread to manufacturing and commercial uses and then to uses in interpersonal relations by friends, family and others. Consider the expansion of drug testing from the military to sensitive categories such as transportation workers to the workforce at large, and then even to parents testing their children. The patterning of the use of global positioning satellite data is equivalent.

Asking questions about the process of surveillance creep and possible latent goals should be a central part of any public policy discussion of surveillance before it is introduced. Beyond determining if a proposed tactic is morally and legally acceptable, works relative to alternatives and can be competently applied, it is appropriate to ask, once the foot is in the door, where might it lead? The public legislative and organizational goals of surveillance are generally defensible, often having gone through public relations and political screening. What is often at issue are undisclosed goals and changes and precedents beyond the initial goals.

Stop Hedging and Just Answer the Question, Professor: Is It Good or Bad? 89

The findings of McCahill, and of Newburn and Hayman on how surveillance may serve positive social goals may displease those congenitally disposed to suspicion of authority and technology. Similarly the findings of Gilliom and Tunnell on how resistance to surveillance may serve positive social goals 90 may displease those who are suspicious of authority defiance.

How should the new panoptic forms of surveillance be viewed--as efficient and scientific tools serving society in the face of ever-greater crises, or as crepuscular sugar-coated tools of domination serving only elite interests? 91 This is the counter to asking how should neutralization efforts be viewed --as courageous and inspiring expressions of the human spirit in the face of the soulless domination of the machine, or as destructive anti-social behavior proving the need for ever more stringent controls?

In both cases posing the question in such a general way is misguided, and the only honest answers are yes and no, sometimes and it depends. The empirical and normative tasks for law and policy are to discover what the evaluation of surveillance does, and should, depend on. Elsewhere I have suggested 29 questions to be asked about surveillance behavior and principles relevant to this 92 (Marx 1998, 2004). These involve the characteristics of the means, the data-collection context (both the application of the means and the broader conditions around this), and the uses. Table 1 offers a summary version of the questions.

In general the more these questions can be answered in a way consistent with the underlying principles, the more legitimate the surveillance is. Or conversely, the less they can be answered in this way, the more legitimate neutralization is. Legitimacy in one area need not generalize to others (e.g., a valid tactic may be poorly applied even where the goal is valid, or a valid tactic may be competently applied to an inappropriate goal). Valid means and goals can be found in settings where appropriate authorization procedures are absent or not followed.

TABLE 1: Questions for Judgement and Policy

  1. Goals—have the goals been clearly stated, justified and prioritized?

  2. Accountable, public and participatory policy development—has the decision to apply the technique been developed through an open process, and if appropriate, with participation of those to be surveilled? This involves a transparency principle.

  3. Law and ethics—are the means and ends not only legal, but also ethical?

  4. Opening doors—has adequate thought been given to precedent-creation and long term consequences?

  5. Golden rule—would the watcher be comfortable in being the subject rather than the agent of surveillance if the situation was reversed? 93 Is reciprocity/equivalence possible and appropriate?

  6. Informed consent—are participants fully appraised of the system’s presence 94 and the conditions under which it operates? Is consent genuine (i.e., beyond deception or unreasonable seduction) and can “participation” be refused without dire consequences for the person?

  7. Truth in use—where personal and private information is involved does a principle of “unitary usage” apply in which information collected for one purpose is not used for another? 95 Are the announced goals the real goals?

  8. Means-ends relationships—are the means clearly related to the end sought and proportional in costs and benefits to the goals? 96

  9. Can science save us?—can a strong empirical and logical case be made that a means will in fact have the broad positive consequences its' advocates claim? (the “does it really work question”)

  10. Competent application—even if in theory it works, does the system (or operative) using it apply it as intended? 97

  11. Human review—are automated results with significant implications for life chances subject to human review before action is taken?

  12. Minimization—if risks and harm are associated with the tactic is it applied to minimize these showing only the degree of intrusiveness and invasiveness that is absolutely necessary?

  13. Alternatives—are alternative solutions available that would meet the same ends with lesser costs and greater benefits (using a variety of measures not just finanical)? 98

  14. Inaction as action—has consideration been given to the “sometimes it is better to do nothing” principle?

  15. Periodic review—Are there regular efforts to test the system's vulnerability, effectiveness and fairness and to review policies?

  16. Discovery and rectification of mistakes, errors and abuses—are there clear means for identifying and fixing these (and in the case of abuse, applying sanctions)?

  17. Right of inspection—can individuals see and challenge their own records?

  18. Reversibility—if evidence suggests that the costs outweigh the benefits how easily can the surveillance be stopped (e.g., extent of capital expenditures and available alternatives)

  19. Unintended consequences—has adequate consideration been given to undesirable consequences, including possible harm to watchers, the watched and third parties? Can harm be easily discovered and compensated for?

  20. Data protection and security—can surveillants protect the information they collect? Do they follow standard data protection and information rights as expressed in the Code of Fair Information Protection Practices and the expanded European Data Protection Directive?
A central point of much social and legal analysis is to call attention to the contextual nature of behavior. Certainly these questions and the principles implied in them are not of equal weight, and their applicability will vary across time periods depending on perceptions of crisis and across contexts (e.g., public order, health and welfare, criminal and national security, commercial, private individuals, families, and the defenseless and dependent) and particular situations within these. Yet common sense and common decency argue for considering them.

Whatever action is taken, there are likely costs, gains, and trade-offs. At best we can hope to find a compass rather than a map and a moving equilibrium rather than a fixed point for decision making. As with any value-conflicted and varied-consequence behavior, particularly those that involve conflicting rights and needs, 99 it is essential to keep the tensions ever in mind and to avoid complacency. Occasionally, when wending through competing values the absolutist, no compromise, don’t cross this personal line standard of some privacy advocates is appropriate, even with a compelling case for effectiveness and efficiency, transparency and strong due process protections in place. But more often compromise (if rarely a simplisitic perfect balance) is required. When privacy and civil liberties are negatively effected it is vital to acknowledge, rather than to deny this, as is so often the case. Such honesty can make for more informed decisions and also serves an educational function.

Taken together, these books nicely illustrate the need for unpacking and disentangling the snarl of surveillance dimensions and related concepts in the face of new technologies and social practices, as well as showing the need for synthesis into a broader framework. Of course any contemporary empirical inquiry, no matter how rigorous and thoughtful, will not help in reaching conclusions about the broader ontological and historical questions regarding the nature of power, order, and control in contemporary society and related questions of dignity, democracy, and justice. Such studies cannot tell us where to draw the line between changes in quantity and quality. Nor will they indicate whether what we observe is simply more of the instrumental rationality seen since the Renaissance and Enlightenment --and perhaps as the techno-optimists suggest, even broadly empowering, or whether they instead represent a fundamental shift in the nature of power and social relations supporting the pessimism of so many intellectuals seen since the latter 19th century. Answering that is “somebody else’s nut tree” (a Maurice Sendak phrase in a wonderful children’s tale). However, empirical inquiries of the kind favored here can moderate the debate and offer evidence that may cumulatively (if never totally) tilt in a given direction.

Concluding Thoughts: Yes and No

To return to the opening epigram all looking is of course in parts and of varying degrees of illumination. Whether looking through the glass, or looking at those who look through the glass, we may see haze but hardly darkness. To return to the surveillance essay themes with which we began, if we view “seeing” in its broadest sense beyond the literal ocular, many of the panoptic claims are factually supported and becoming even stronger. In addition to the legislative and cultural changes that followed 9/11, 100 means of data collection, storage, analysis, and communication continue to increase in sophistication, power, scale, speed, integration (of both distinct forms of data and data sets), remote access, 101 and ease of application. They also continue to decline in cost and size.

To take only several examples, through 2003, processing speeds had doubled every 18 months, 102 and disk memory capacity had doubled every year (National Academy of Sciences, forthcoming). It is now less expensive to store information than to discard it, and proportionally ever more is kept rather than culled. Both the future and the past are believed to be more accessible, and statistical reasoning and new data mining techniques play a greater role in informing judgments. New techniques are constantly being developed or moving from military to broader use (drones, face recognition, ion scanners, data mining, GPS). In October of 2004 the FDA approved under-the-skin ID microchips for humans, which previously had been restricted to pets and livestock. 103 Just as national borders have become more fortified, so too have internal borders, whether seen in the vast expansion in gated communities and secure access facilities or in the omnipresent video camera.

Surveillance continues to increase in intensiveness and extensiveness: watching is both ever more generalized or categorical and ever more individuated and detailed. 104 This development can only increase as automated computing becomes ubiquitous, relying on sensors that passively read and send remote signals to the Internet and elsewhere. Chips that can send signals or be read will increasingly be found in objects (e.g., computing and communications devices, switches, groceries, cars, tools, appliances, weapons, clothes, persons, and environments (roads, walls, doors, toilets). 105 Through a “value-added” process, the aggregation and analysis of data collected in varying formats and for varying purposes in turn create new data and models for analysis. 106

Yet, at the same time, counter trends have also become much clearer and stronger, as have the many well-publicized failures of surveillance systems and the failures known to insiders that never become public. It will not be news to students of society that inherent dialectical processes are at work, that tools have multiple uses, 107 and that in a goal-rich, constantly changing environment of human frailty always responding to the past, there are frequent slips ‘twixt desired goals and outcomes. In the dynamic rivers of conflict, it may sometimes seem to surveillants that, as Paul Simon sings, “The nearer your destination, the more you slip slidin’ away,” or at least the nearer to running on a treadmill. The inherent ironies and Achilles’ heals of surveillance as control do not diminish (and in some ways may even increase) the greater the effort. As noted, there is also increased public awareness and concern, some increase in transparency, new legal and policy protections 10 (including means of opting-out of solicitations), new technologies for protecting personal information, and broader availability of many of the means.

While Foucault’s emphasis was on punishment and surveillance moving away from being grand spectacles in public view, the mass communications and public informational expectations and rights that appeared simultaneously in the 19th century (and have in many ways been growing since) bring some aspects of the spectacle and of the workings of the state ever more graphically into public view. This is nicely symbolized by the surveillance camera (whether hidden or not) which delivers crime and social control events to the six o’clock news as well as various forms of notice.

Thus the same video mechanism serves as a means of both surveillance and communication (most frequently, sequentially but sometimes simultaneously as with “live” helicopter video images of car chases or Webtelecasts or videoconferences). 109 Surveillance data feed the mass media’s appetite. This in turn can re-inforce cultural beliefs about crime and control and strengthen public support for surveillance as a result of the need demonstrated by the “news” (Mathiesen 1997; Altheide 2002; Doyle 2003). Mass media communication about surveillance may serve to “normalize” behavior through morality tales of what happens to those caught by panoptic mechanisms. 110

Yet this merging might also moderate surveillance excesses because of fear of being on the news –that is, rather than Bentham’s elite few secretly watching the many, the tables are turned as the many can watch those in authority --with the same logic of visibility bringing deterrence and accountability. The Internet, whose users can be subject to intense new forms of surveillance, also makes everyone a potential publisher independent of the traditional centralized sources and censors (assuming of course that relevant information can be obtained, and from Watergate to Iran Contra to Rodney King, it often can).

This analysis suggests that it is premature to get down with either the pessimists or the optimists and that there is great need for more factual and comparative knowledge, for concepts that can better order the empirical variation, and for using these to disentangle statements of fact, faith, value, and prediction (however difficult). We need, if not marriages, at least more cohabitation involving the empirical analyses of the social sciences with the normative analyses of the law and ethics. Yet in spreading humility and arguing for appreciation of the complexities, we must not become academic eunuchs, nor legitimators of the status quo by default. 111

It was once said of Ireland that there were too many Protestants and Catholics and not enough Christians. It might be said of surveillance commentators that there are too many theorists and ideologues and not enough social researchers and jugglers.

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  1. This is the “Is there anything really new?” question. The answer is of course both yes and no depending on the aspect considered, the level of abstraction, and the context. When we go beyond a simplistic yes/no approach and specify multiple dimensions of possible change, a richer and empirically more accurate view is possible. For example, in considering just the question of means, I identify 27 such dimensions. On balance the emergence of such technologies suggests a profound, if uneven, change, although more in the area of means than goals (Marx 2002b).

  2. Some methodological humility may be appropriate here given the possible exclusion of journals that ceased publication or of earlier articles since there is sometimes a cutoff date for when the scanning of articles begins. However, once that date is reached, the entire contents are scanned.

  3. Some of the work by lawyers particularly relevant to the topic at hand Smith (1999), Froomkin (2000), Slobogin (2002) Solove (2002).

  4. For Foucault (1977) this involved the move from the public spectacle of inflicting punishment on the condemned as with hangings, to the low-visibility creation of discipline behind the walls of an institution. In the Panopticon the visibility was low both because it was to rely on a technology that permitted guards in a tower to see but not be seen, and more broadly, because control became embedded and routine. As we will note, one aspect of the expansion of rights involves a counter-trend toward increased visibility and transparency. Bureaucracy with its emphasis on formal record keeping also can tilt in the opposite direction. The issues, of course, are how accurate the records are and who can know and challenge them.

  5. Elements of such views are held across the political spectrum. Note the initial logo of the abandoned (at least as formally defined) Total Information Awareness program of the Department of Defense-an all-seeing eye sitting on top of a pyramid with the Latin motto “Sciencia Est Potentia” –Knowledge Is Power. In a move symptomatic of our age of spun images, in response to criticism, the program’s name was changed to Terrorism Information Awareness, and the logo dropped. The program called for the creation of a “virtual, centralized grand database” involving a technically improbable massive harvesting of transactional data in private and public data bases. towards an equally improbable goals of predicting and then preventing individual terrorist acts.

    Hillyard and Knight (2004) analyze the congressional termination of the Total Information Awareness program. They emphasize privacy as an activity involving the rhetoric and politics of opposing claims makers, rather than as a fixed condition to found in legal and ethical principles.

  6. But see also the books by Smith (1994); Nelkin and Tancredi (1994); Norris, Moran and Armstrong (1998); Norris and Armstrong (1999); Curry 1997; Monmonier 2002.. Among studies with a policy emphasis offering some empirical data on the techniques see Regan 1995, Bennett and Rabb 2003.

  7. The data collection and detailed record keeping of modern bureaucracies might also bring greater accountability, fairness, and inclusion via universalistic standards (whatever their other failings), not to mention that there are sometimes advantages to having more, rather than less, information –even if it is of a more formalized kind.

    Those noting the clarion limitations of bureaucracy too often fail to take the next step in noting the limitations on non-bureaucratic means and comparing means. Certainly welfare should be humane and policies neither self-defeating, nor informed by a punitive rather than a caring ethos. But should compliance with reasonable eligibility rules be left only to good will and trust or the discretionary assessments of a local caseworker?

  8. Gilliom’s argument would be stronger here with more detailed analysis and examples. It would also be helpful to contrast this to other systems of laws that are seen as supportive, clear, and benevolent and to see state power treated in a more differentiated fashion given the variety of state actors and interests.

  9. If recipients viewed the amount of welfare paid as sufficient to support a family, would they oppose the inquiring arm of the state and seek to subvert it to the same degree? Opposition would likely be lessened, since the recipients critique is framed in terms of survival and protection of the family rather than privacy rights. We can spell out a number of hypotheses here involving the inter-relations of 1) the relative generosity of the system, 2) the extent of surveillance, and 3) responses of recipients. For simplicity, if we dichotomize each of these the most minimum welfare and maximum surveillance would see the most resistance and the reverse pattern the least.

  10. Explanation is nurtured by the identification of variation, and Gilliom’s brush stroke here is broad. He emphasizes manipulators who do not directly challenge the system (though greater attention to types of resistance from the moderate withholding of information to outright fraud would be helpful). A larger sample might offer more data on those who comply, both with and without complaint, and those who do seek adjudication and engage in rights talk. What are the consequences of the fact that most recipients are female? Are male recipients (whether of this or other forms of welfare) surveilled and do they respond in the same way? Comparisons are needed to other surveillance systems showing a different distribution of responses, as with the greater legal contentiousness in the case of some forms of work monitoring.

  11. Greater documentation regarding the specific legal rights presumed to be violated would be helpful here. To ask welfare mothers about male partners or income earned may violate a cultural expectation of privacy, but that is not the same as violating a legal right. However deficient by some ideal beneficent standard or in comparison to some welfare states the new rules are, to argue that they are illegal (whether with respect to the procedure by which they were created, given statutes, or constitutional standards) requires elaboration.

  12. While no data are presented from interviews with police, Gilliom suggests the raid may be related to his activism in documenting and challenging a controversial local narcotics task force accused of numerous abuses. The county council subsequently voted to refuse federal grant money in order to eliminate the task force.

  13. A methodologist however might note that the database is small and restricted to one place, time, and type of recipient, and the interviews deal with claims about behavior with no external validation.

  14. Of course, this does not obviate the listening to the powerful as well. It would be helpful to see the perspective of the clients matched against equivalent interviews with welfare employees and other controllers at different levels and over time. In studying the agents as well as the subjects of surveillance and their interaction via neutralization and counter-neutralization moves (a topic considered later in the review), a fuller picture emerges.

    With respect to the implied question of “Whose side our we on?” it is well to recall Becker’s (1966-67) observation of being on “our own side” (i.e., the scholar’s side). Note not only the contrast here with Gilliom, but also with C. W. Mills who in a different context argued for studies of elites, not of the powerless (1943). The tune one wishes to play and the subsidizer of the piper can mediate the divergent suggestions re who to study, or at least, to empathize with. The contrast with the 1960s call to study political elites, police and prison officers, teachers, welfare and mental health workers, and medical doctors versus today’s emphasis on studies of the law and ordinary people is striking.

  15. The closed implies limited viewing rather than indiscriminate broadcasting. Yet one of the ironies of many such wireless systems (if unprotected as most are) is that anyone within transmission range with the appropriate receiver can be a viewer.

  16. The researchers stressed their independence and that interview results would not be shared with police. However data-quality questions might be raised about this group, since they were prescreened by police (e.g., those incapacitated because of drugs or alcohol or thought to be possibly dangerous were excluded), the setting was a prison, and the interviews were caught on the cell’s videotape. However, the overall results hang together well, and there is face validity.

  17. A finding consistent with the strong police support for the recording of custodial interrogations found in a U.S. study (Sullivan 2004).

  18. What is meant by balance is not equivalence but “the need to weigh” or “not to forget about totally.”

  19. Of course as with many ritualized statements, these involve undefined general concepts and are not necessarily opposed in the operation of the good society, which requires some degree (debatable to be sure) of order as a condition of liberty.

  20. In some video settings such as casinos, cameras are even directed at those doing the video monitoring, so one wonders whether in turn cameras monitor those monitoring these cameras. In his song “Who’s Watching the Man,” Sy Kahn nicely captures the democratically, sound, if infinitely regressive, paranoid dynamic here, “I wonder who’s watching the man who’s watching the man who’s watching me.”

  21. Such questions include What can the camera do --pan, tilt, zoom? Does it record in a real or time-lapsed fashion or both? Does it require tape or is it digital (greatly expanding capability and efficiency)? Can it see in the dark (with more expensive infrared capability this is possible, but it was not used at Kilburn, so there was no night video when lights were out. Is it combined with triggering means such as heat, motion, and light detection? Is audio recording also used (it was in the central booking area but not in the cells)? Can it be turned off or the image changed or partially blocked (e.g., showing only the upper body of a person in the bathroom)? Some of the above may be built into the technology or be determined by policies (e.g., not using a camera above the first commercial floor of a building to look at the apartments above can be a function of an immobile camera or a policy that says don’t look there).

  22. Having cameras in all cells is much more expensive, especially if they are to be continuously monitored, but they may contribute to deterrence and the early identification of problems and help avoid charges of discrimination.

  23. An officer reports, “A guy was on the loo and I couldn’t turn him off. I turned away because he took so long.” And another states, “It seems intrusive, to be honest. I would rather not see them on the toilet. Last week I watched someone drink water out of the toile.” (p.76). This is an example of the technology casting too wide a net and offering more information than is necessary. On the other hand categorically restricting the technology may have other consequences. Thus as seen through the distanced lens, a female suspect might be inappropriately seen changing a tampon, or the action could involve removing cached drugs (p. 79). In their indiscriminate vacuum-quality, audio and video recordings differ from physical searches of persons, places, and computer records, which can in principle be highly specific. The latter may avoid information spillover to things not appropriate for the agent to know. However, the technology can be configured to block out faces or certain views.

  24. Real time viewing is found with “open” systems, while “closed” systems only permit retrospective viewing.

  25. Whose face is it anyway? This issue of who should have access to and be able to use such personal data is deeply unresolved. Consider the controversy over the sheriff of Maricopa County (Arizona) offering images of the prison over the Internet.

  26. Given the context there were some limitations. We only hear from those willing to be questioned; we are not told the number of refusals, and little attention is given to validity questions. Some were interviewed before and some after the cameras were installed, and the equivalent results are generally merged. Additional before and after data on complaints about police and inmate behavior and public attitudes, and consideration of the financial and other costs (including comparison to what the resources might alternatively have gone to) ,would offer a fuller picture.

    A later before/after article using multivariate analysis by Newburn, Shiner, and Hayman (2004) finds that with other factors equal, those of Afro-Caribbean origin were more likely to be subjected to strip searches both before and after the installation of the cameras in Kilburn. However, the installation of the cameras reduced such searches overall by one-third, suggesting an accountability or hesitancy-to-act factor as a result of the camera’s presence.

  27. Of course here we must resist the fallacy that seeing is necessarily believing. The prima facie evidence seemingly offered by the visual partly accounts for the spread of video technologies. Doyle (2003) in four case studies of crime and policing as televised makes the interesting point that given the scripting and commentary found in these presentations, the verbal plays a central and unappreciated role in giving meaning to what is seen.

  28. For example, an inappropriate position “usually warranted the deployment of a patrol guard who would ask the person to position their body in a way conducive to the commercial image of the mall.” Or in the case of teenagers hanging out, “move the suspects on” (p. 129).

  29. Language betrays us here into assumptions of a single geographical dimension. In fact “removed” and “on scene” bootleg in multiple other factors such as time and cultural closeness.

  30. Those who monitor video screens are in a sense licensed and given a license to peer watching as work. This is not to deny the pain and ugliness (and when done by someone trusted, sense of betrayal) that discovered, or suspected, inappropriate secret watching may cause. At the extremes there may be tort and felony remedies. An interesting variable, not unlike whether a tree that falls in the forest makes a sound if nothing is there to hear it, is the kind of harm that may be done if the watched never learns of the activity. The issue is treated in Marx 2002a.

  31. Truth in book reviewing requires disclosing that I read this book in draft form for the publisher and offered a supportive statement. I have had no previous contact with the author.

  32. Drug testing is actually a misnomer. The test reveals metabolites expelled in the urine, not drugs. In order for the former to be present, the drugs must have been taken approximately a day before the test. In principle it would be possible for someone to show up stoned, having smoked marijuana the day of the test and to pass the test, since the metabolites had not yet had time to form. If employers used a thattest directly measured the presence of drugs (e.g., there is a blood test for THC) or impairment rather than less expensive proxies, that outcome would be much less likely.

  33. Following a technology used in Japan, E.K. Tech, I has a drug testing system that automatically draws its sample from the toilet bowl and dehydrates it for instant analysis. I imagined such a technology in a satire (Marx 1987). In the surveillance world if you can imagine it, it probably can, or has been created, as life imitates art. Note the appearance of Dick Tracy’s wristwatch TV or Spiderman’s electronic location device.

  34. Consider for example the 7th graders in Tecumseh, Oklahoma, who are free to decline their Supreme Court sanctioned drug test (2002 Board of Pottawatoomie et al v. Lindsay Earls et al.), but only if they wish to forgo singing in the school choir and forgo other extra-curricular activities. Drug tests of course contrast markedly with tests of singing ability as criteria for participating in the choir.

    In a similar vein the Supreme Court in Wyman v. James (400 U.S. 309 (1971), approved mandatory and warrantless home inspections of New York welfare clients partly on the grounds of voluntarism (recipients don’t have to submit to such searches if they chose not to accept welfare).

  35. In 1972 the Syva Company developed the inexpensive, easily applied EMIT technique that permits on sitetesting. Concern over drug use among military personnel in Viet Nam led the Army to require evidence of a negative drug test as a condition of returning to the United States (although this was struck down in a 1974 Military Court of Appeals ruling (United States v. Robert J. Ruiz). Following a well-publicized accident on the U.S.S. Nimitz in 1981, the Navy began on-site testing in 1982. By 1985 workplace drug testing was in 25% of Fortune 500 companies.

    As part of the continuing war on drugs and following the recommendation of a Presidential Commission on Organized Crime, President Reagan in 1986 issued Executive Order 12564: Drug Free Federal Workplace. In 1988 Congress passed the Drug-Free Workplace Act which requires employers with large federal contrast to create a comprehensive drug-free workplace program.

  36. Moore and Haggerty (2002) have identified nearly 50 such websites.

  37. The disingenuousness here is staggering. Tunnell reports that the High Times drug testing hotline claims that it has helped over 150,000 pass drug tests since 1989. Of course according to its website: “HIGH TIMES does not advocate or condone cheating on drug tests or trying to dishonestly defeat urine, blood, hair or perspiration tests. The HIGH TIMES Hotline describes methods for obtaining passing results as TECHNICAL INFORMATION AND FOR EDUCATIONAL PURPOSES ONLY.” Unfortunately no examples are given of “honest” vs. the presumably reprehensible “dishonest” means.

  38. How does testing to exit a role (as with soldiers in Vietnam) differ from the more common form of testing to enter or remain in a role?

    Consider workers in gold and diamond (or informationally sensitive equivalent) settings who are searched before they can leave work or nuclear power workers monitored for radiation. The computer’s ability to export information has greatly complicated the task of exit searches.

  39. For example at the 25-mg/ml settings “contact highs” resulting from a nonsmoker in the presence of a marijuana smoker, would likely count as positive but would be excluded at the 50- mg/ml setting used by the Dept. of Transportation.

  40. This can involve retests or more extensive tests to deal with the problem of false positives. In the case of preemployment, it can mean disqualification for the job and from reapplying (whether for a fixed period or forever). For those already hired it can mean warnings, suspension, termination, “rehabilitation” or nothing.

  41. There is of course a symbolic component to personnel practices. In drug testing a company says something about the kind of place it is, and choosing not to drug test may also make a statement. Relatively few computer companies for example drug test. An executive of a large high tech- company I interviewed said, “if we tested we’d drive away the kind of creative people we need to hire to stay competitive.” Apart from lifestyle issues or stimulants as a possible aide to work, the kind of employee sought is often of a more libertarian persuasion and would not want to work for a company that drug tests. The interviewee was bemused at my suggestion that perhaps his company should drug test but turn the system upside down and favor, rather than exclude, those who tested positive for the appropriate substances.

  42. This is another area where logic may have taken a holiday. If athletes can use ever more developed machines, training techniques, psychological knowledge, and diet to push their performances, why can’t they use steroids? Is it for public relations reasons and an implicit sportsmanship morality regarding “natural” (but socially defined) means of performance enhancement? Is it to protect young athletes from damaging themselves under the powerful pull of the achievement ethos? How clearly can a chemical line be drawn here between diet, over-the- counter substances, and those that are banned? The controversy over stimulants said to help the performance of pilots who fly long distances raises some similar issues.

    There are interesting comparisons here between types of sports. The big professional sports until recently seemed concerned with narcotics and the moral luggage they bring for largely symbolic public relations reasons, not the issues of fairness or long-term risks brought by steroids that seem to drive Olympic testing.

  43. In Chandler v. Miller, 117 U.S. 1303 (1997), the Court over turned a Georgia ruling permitting drug testing of those currently holding or seeking public office. This falls within the Fourth Amendment as a search that can only be justified if there is reasonable suspicion or “special needs”, as with transportation and public safety workers. The ruling does not prohibit office seekers from being tested and reporting their results, while challenging opponents to do the same. If the latter choose not to volunteer this information, they can be ensnarled in a kind of “tyranny of voluntary revelation” that distorts the meaning of free choice and implies they have something to hide.

  44. However, we are not told how many persons were interviewed, nor offered his formal or informal interview schedule.

  45. Tunnell sometimes relies on references to secondary sources without indicating what the data are, and some of his assertions are contradictory --minor issues that more careful editing would fix. To take one example of the latter we are told that, “the random gaze of the Panopticon prison and drug-testing devices and procedures lead to docility and, in the main, ultimately self-censorship and –control, or obedience” (p.112) and that drug testing is “widely accepted by unions, their members, professional and nonprofessional employees, job applicants, and a host of others” (p.113). This, he continues, offers a case of “cultural hegemony as drug testing becomes an unquestioned process” and “this, latest form of disciplinary power proceeds largely unabated.” (p.114) However, the evidence Tunnell offers and much of his discussion elsewhere (“…defiant workers and prospective employees are seeking ways to neutralize increasing disciplinary power on their lives.”) (p. 114 ) casts doubt on these statements, or at least calls for some reconciliation. It would be better to say that the public goal of such means and the consequence asserted by many analysts and advocates is obedience. Whether and when it is achieved is an empirical question.

    Other goals may lurk beneath the publicly stated goals. A striking finding from an American Management Study is that 40% of Fortune 500 companies do drug testing because they “are required to rather than because they believe drug use in the workplace is a significant problem” (p. 6). Note also the requirement of retailers such as Wal-Mart that the goods they purchase must come with RFID tags. Of course this just pushes the explanatory question back a level to, “Why does the government, an insurance company, or merchant require it?” The routinization and even ritualization of much testing and other data collection may also imply a lack of attentiveness and concern among testers.

  46. Is a “surveillance society,” defined as one that relies heavily on formal and technical means of control, a society at all? Contrast this meaning with the communal emphasis of the term’s original Latin meaning –companion. The new surveillance does accompany the person, but it would be a stretch in most cases to see this as companionship, even with voice simulation.

  47. While a critical language to speak about it may be lacking, this does not preclude various forms of resistance. A central theme of his book is the creativity, adaptability, and resilience of those subject to new forms of surveillance.

  48. This in turn is located within a larger framework involving kinds of information and settings far transcending the personal –e.g., government and organizational data and copyrights, patents, and trademarks to mention only a few. Yet the broader social and moral issues of transparency and opaqueness and the conditions for revealing and concealing information remain.

  49. These two meanings are usually ignored in considerations of privacy. In this article my emphasis is on taking information from the person. Yet the forms can of course be joined, as when monitoring calls to 800 numbers or web browsing leads to spam or targeted solicitations via telephone marketing, or when law enforcement uses mass communications such as advertisements and mailed solicitations to identify potential offenders who then become subjects of stings and other forms of surveillance.

    Imposing on the person can be viewed as a type of communication. Communication and surveillance may be mass (broadly) directed, as with TV ads and video cameras on roads. Or they may be focused with varying degrees of specificity on subjects of interest, as with targeted marketing and court-ordered wiretaps.

    Several decades ago Jim Rule (1984) observed that with computing, mass surveillance became possible alongside of mass communication. In recent decades there has been a move from mass to more individualized (targeted or segmented) communication determined by characteristics of the recipient (often as determined by some form of surveillance). But in the case of surveillance, the mass and highly focused forms are both stronger than ever.

    Contrasting the undifferentiated with the differentiated forms of communication and surveillance and exploring the varied connections between communication and surveillance are research topics in waiting. For example developments in the surveillance of consumption have been a major boost to targeted forms of communication. The distinction between surveillance and communication may practically disappear when we consider the multiplicity of goals and users for something like the 72 miles of cameras along California coastline sent to lifeguard stations and then to the Web. Surveillance serves as a protection for swimmers, a beach and traffic control and management device, a work monitor, a symbolic reminder of unseen watchers, and a strategic resource for helping viewers decide which beach to go to. This merging of communication and surveillance differs significantly from that involving web viewing and the subsequent receipt of spam or other marketing communications that are imposed on the person.

  50. Violate and invade seem too loaded and empirically inapplicable in some situations; “crosses a personal border” is better but does not work as literally when the person volunteers information. I prefer the more neutral altering of the empirical status of what was known as the information goes from being “private” to “public,” or better still, “known” to the data collectors under varying conditions of revelation and concealment. This is further complicated by varying rules and expectations regarding the agent and subject of the information collection.

  51. Here I draw from Marx 2001; see also Nissenbaum 1998.

  52. This is equivalent to Goffman’s (1959) front and backstage regions. But my use of public goes beyond the literal physical back region to also include hidden biographical and organizational data that become known.

  53. In the same behavioral sense prisons certainly violate the liberty of the prisoner, but however overextended current penal policy is, we do not generally speak of the illegal violation of liberty rights of the imprisoned.

  54. This issue can be approached as one of cognitive sociology involving the intersections of social factors and ways of thinking. (Zerubavel 1996), Nippert-Eng (1995) explores aspects of public-private classifications in looking at the boundary work involved in negotiating definitions of home and work under conditions of increased permeability and boundary overlap (and, we might add, confusion).

  55. According to its Web page the program seeks to give “the average person terrorist indicators to watch for not race or religion” (

  56. With increased internationalization and globalization of crime, terror, and social control (McDonald 1997; Deflem 2002; Sheptycki 2003), the meaning of national borders and foreign and domestic actions is less clear. The links now made between dealing in contraband (drugs, weapons) and terror weaken the traditional distinction between crime and political activities. New legislation and new forms of cooperation also weaken the previous separation of the military from domestic police, and intelligence from operational units. The emphasis on prevention blurs the line between intelligence and crime fighting activities and weakens the tradition of a predicate before invasive surveillance is undertaken.

  57. A more extensive discussion and other forms are considered in Marx, (forthcoming).

  58. Useful correctives to some of Foucault’s claims can be found in Garland 1997, De Lint 2000, Boyne 2000, Lyon 2001, Zureik 2003, Gabriel 2004, and related revisions, extensions, and rejections in a volume of Surveillance and Society edited by Wood 2003. Leman-Langlois (2002) notes some ways that the panoptic is actually myoptic. Consistent with findings on the mixed implications of forms such as CCTV for crime control (Welsh and Farrignton 2004), Leman-Langlois argues for attention to how the discourse of surveillance is changed by technology beyond literal impacts.

    Beyond ideology, part of the problem is in the multiplicity of things Foucault said over a long career touching many topics and in some imprecision in specifying time periods. To take several examples, he can be selectively read to stress either, or both, the centering and decentering of power and domination with and without clearly differentiated agents (whether state or not), and with and without resistance or certainty and uncertainty with respect to being watched. Related but somewhat different control themes are also expressed in his discussion of the Panopticon and literal vision with the rise of the human sciences and vision as knowledge. My point is not to complain about doctrinal purity, consistency, or whether those who are inspired by Foucault do him a disservice in overemphasizing the domination and coercive aspects. It is to argue for attention to the multiplicity of factors beyond power involved with surveillance and, where power is present, for differentiating legally and morally legitimate forms from illegitimate forms. Yet even doing this, we must note that the availability of surveillance resources for the less powerful rarely makes for a level playing field.

  59. Consider the extensive use of video in casinos, which not only serve to identify suspected cheaters for exclusion or arrest but also high rollers who receive preferential treatment. The lens is also a work-monitoring, administrative, judicial, and public relations tool. In the latter case it is intended to deter and to reassure.

    In Marx (forthcoming) I identify 12 major goals of surveillance, including compliance, documentation, management and coordination, discovery, publicity, symbolism, and curiosity. As with the tale of the blind and the elephant, some of the disagreements about surveillance involve not viewing the animal in its totality. A recent assessment of video systems in Berlin shopping malls documents a multiplicity of goals and current limitations on social control and exclusion. Work monitoring and coordination were more significant as goals than surveillance of a particular individual. (Helten and Fischer 2003). The joint Urban Eye European research project is offering a wealth of important data on video (

  60. Note Freud’s (1949, 354) assertion of the one-way principle: “I adhere firmly to the plan of requiring the patient to recline upon a sofa, while one sits behind him out of sight. I cannot bear to be gazed at for eight hours a day (or more),” --not to mention getting to ask (rather than having to answer) all those personal questions! (as cited in Coser 1961, 38).

  61. Apart from more formal roles, subordinate status involving characteristics such as gender or ethnicity also often involve this form.

  62. The challenges go beyond dealing with the comprehensive 108-celled typology such a scheme systematically offers.

  63. Degrees and forms of surveillance can be usefully contrasted with costs and benefits, offering another perspective on the topic’s complexity (e.g., contrast the Secret Service’s intense watching of leaders with the intense watching of prisoners by guards). Given surveillance as protection, those most closely watched need not necessarily be those most disadvantaged. But on balance Huxley’s (2000) hypothesis that modern technology has hurt “the little man” and helped “the big man” is a good hypothesis to begin with.

  64. Historically, outcaste migratory groups with no fixed address and only a shared single public name such as the Gypsies were equally insulated from location and identification.

  65. In the traditional view, with higher status comes both nonreciprocated, greater protection for the role occupant’s information and greater access to the information of those lower in status. Determining who gets to ask the questions and know the answers, who has a “private” office, and who can move freely throughout organizational and geographical space can offer a map of informational stratification.

    Of course in reality, things are often more complex than a simple “higher up means more and better information rights (and information).” The right to observe needs to be contrasted with the ability to do this, note the scale/logistical problem of higher-status persons directly observing what goes on below them in pyramidal stratification systems and their necessary dependence on subordinates to learn what is going on; counter norms that those of high status will announce that they are going to visit; and the necessary reliance on private secretaries, valets, and servants whose job requires a close (and nonreciprocated) observation of their employers. Absent special resources to restrict it, those of higher status are less likely to be anonymous and may thus enjoy less privacy (they may also actively seek media attention –whether as a condition of their work or psychology). As public figures, some of their personal information also has less legal protection (e.g., laws regarding disclosure and mandatory reporting, and lessened protection from torts involving being put in a false light, slander, and libel).

  66. Of course a dogmatic social determinism is equally suspect. Material properties have social consequences. Note the implications of lowered cost, increased speed, miniaturization, documentation, and memory, remote activation and transmission, and extension of the unaided senses for the spread of surveillance and the temptations of secrecy. For understandable (if uninspiring and indefensible) reasons of narrow professional socialization and interest, the social and cultural consequences of technical attributes such as the above are understudied topics. Such factors can be as (or more) significant for social behavior as the usual social suspects.

  67. Note Chan et al’s (2001) finding that almost half of police respondents felt that information technology had led to information overload.

  68. The others are piggybacking, blocking, masking, and breaking.

  69. The motto of his group is “Test your Government not your Urine” ( Note also the popular song by Mojo Wilson, “I Ain’t Gonna Piss in No Jar,” and slogans on Web pages, such as “Live Positive. Test Negative” and “Pee for pleasure not for employment”.

    Tunnell (p.115) cites a bumper sticker with the words “The Only Urine You Will Get From Me Is for a Taste Test.”

  70. As Bogard (1996) has argued, simulation has become an increasingly important part of social control. Perhaps reciprocally it has also become more important to neutralization. Urine substitution, for example, can be seen as a form of simulation, although I am not sure if an adulterated sample is the same. Given the variety of “real” elements that can be faked, analytic distinctions and gradations in considering simulation are needed.

  71. Or within the same category, consider the Canadian doctor accused of rape who twice tried to fool authorities when they sought his DNA for a match. In the first case he turned his back to an observer and substituted another’s blood sample. Doubts led to a second test in which the observer directly watched him draw a sample from his arm. However, this time it was from a plastic vial with another’s blood that he had inserted under his skin. A final sample taken from his mouth established his guilt.

  72. Note, for example, responses to the proposed Lotus MarketPlace (a massive database with names and addresses) and the Intel Pentium III (a chip that when part of a computer connected to a network could identify itself to a site visited). Of course, identifying a given computer need not offer proof of who used it.

  73. For example the 1988 Video Privacy Protection Act passed after a reporter sought Judge Bork’s video rental records, and the 1994 Driver’s Privacy Protection Act passed after the killing of an actress whose address was provided from state driver’s license records.

  74. Their Web sites –,,,,, and (technology and privacy pages), are good sources of information.

  75. This is particularly the case in United States work settings relative to Europe (Finkin 2002). Indeed information needs to take its place as both an independent and interdependent stratification resource swirling around more conventional factors of class, status, and power.

  76. Using an inversion called soussurveillance, they use wearable computers to surface implicit norms regarding watching. Beyond its artistic and performance merits, this work has the virtue of actually offering and beginning to test hypotheses about likely responses to surveillance alterations.

    One of the earliest examples of such work was a 1969 video called Supermarket by Paul Ryan and Michael Shamberg (1971), later of (The Big Chill). Their effort to record a supermarket’s surveillance system (with its sign, “Smile, You Are On Photo-Scan T.V.”) recording them was not met with favor. With no sense of humor or irony, the store manager told them their recording was illegal. A 1971 video, Red Squad, uses video to record some of the activities of a New York City police intelligence unit doing its own recording.

  77. A distinction that I would apply to Newburn and Hayman’s criticism of what they see as “an inclination toward dystopianism within contemporary criminological literatures on surveillance” (p. 167) (e.g., Marx 1988; Norris and Armstrong 1999; Cohen 1985).

  78. Note Lewis’s (1993) use of the term could in the title of his novel and Roth’s (2004) imagining of how it might have happened.

  79. In his society, for example, writing instruments such as the pen, are prohibited as is learning a foreign language, there is no law, mass communication is restricted to the state. There are no civil society organizations apart from those controlled by the state, there is little diversity, the political and economic systems are merged, the standard of living declines, and proper attitudes and feelings are as important as proper behavior.

  80. In the shopping settings, for example, much of the surveillance agent’s one-way video monitoring behavior fits with the vision of the Panoptic essay. Low-paid surveillants serve the interests of their employers in helping avoid theft and liability and in creating an atmosphere supportive of shopping while excluding those seen as undesirable. Drug testing at work peers into the body’s secrets to surface the invisible and coercively enforce a particular morality in collapsing the line between on- and off- duty behavior. The computer matching of records is a mechanical means of regulating welfare recipients and can serve as a symbolic status- degradation reminder of their powerlessness and disvalued position, for example, consider the related phenomena of the humiliation found in a study of the fingerprinting of welfare recipients (Murray 2000). The omnipresent video helps the prison manage inmates and is also a reminder of the prisoner’s status.

  81. Of course when pursuing other goals, elites may be tripped up on the technology, as with President Nixon’s essentially bugging himself and those he spoke to. That hoisted on your own petard example seemingly involve forgetfulness, hubris re the importance of everything said or a sense of invincibility This example, however, contrasts with North’s bungled efforts to erase incriminating Iran-Contra computer files, which involved ignorance of the technology’s potential. The many embarrassing (and worse) indiscretions revealed in overheard cell phone conversations (e.g., Prince Phillip talking to his mistress) might involve ignorance, forgetfulness, laziness, indifference ,or compulsion to reveal.

  82. Of course, given the social leakyness even of prisons, some prisoners will have them. According to one source the presence of such cell phones “is a growing and serious problem” (New York Times, June 21, 2004).

  83. Nor of course do they have equal surveillance resources. However widespread, the presence of cell phone cameras and personal computers are hardly equivalent to the satellites, sensors, and massive computing power of the largest players and the trend toward privatization of information.

  84. Note increasing restrictions in work organizations and even public law on the use of cell phone cameras and the ability of institutions to use their own video means to capture violators.

  85. Consider, for example, controversial legislation such as the Communications Assistance for Law Enforcement Act which requires that communications equipment be manufactured in a fashion that can be easily tapped, and requirements of the Federal Communications Commission and Congress (the Wireless Communications and Public Safety Act 1999) that all cell phones be provided with location monitoring devices as part of enhanced 9-1-1 service.

  86. In return this exemplifies counter-counter-neutralization moves. Drug-resistors test resistors may keep clean urine warm via battery devices or hand warmers and are encouraged to take large doses (50-100 milligrams) of vitamin B-2 to avoid the production of “clear watery urine.” With respect to the escalated conflict between speeders and police, a technology was developed that permits police to discover if a radar detector is in use. In a subsequent move illustrating the infinite regress (or progress depending on your point of view), drivers may now purchase a radar- detection device that is said to make them invisible to “detector detectors”.

  87. The narrower terms function or mission creep are related but less useful because they do not explicitly point to other agents, subjects and enhanced technologies.

  88. Restrictions such as the 1988 congressional legislation limiting the polygraph suggests the need for related terms (and research) on surveillance contraction as well as on the pace of expansion and contraction. Given an avaricious surveillance appetite, there is sometimes a dialectical social process of self-destruction, or at least over extension and system overload, as the surveillance eyes greatly exceed actual capacity and political acceptability in expanding too rapidly and too far. Note the fate of the withdrawn and reworked Computer Assisted Passenger Pre-Screening System (Capps 2) for screening airline passengers. Goal diffusion may mean goal dilution. This system was initially to use commercial databases and data mining technology to scan the records of all travelers, apart from passenger profiling. Its goals, however, expanded to permit trolling for a wide variety of offenses unrelated to air travel. With respect to the bloated Capps 2 a Homeland Security official said, “it looked great in the hanger but it was too heavy to take off” (New York Times, Sept. 19, 2004, p. 25). The weight appears to be both technical and political.

  89. A question posed in a talk show interview that helped me realize my time might generally be better spent in other pursuits.

  90. In Gilliom’s case the positive aspects may involve the self-respect and economic well-being (and its multiple correlates) of welfare families. In Tunnell’s case this applies to civil liberties and to sustaining traditional borders between the person and the organization, absent extenuating circumstances such as employment in transportation or law enforcement or where there are some grounds for suspicion. Efforts to neutralize drug (or any form of) surveillance may also serve communal functions when the pattern of control is inconsistent (not testing for the far greater problem of alcoholism or susceptibility to other workplace hazards (for example, an American Management Association Survey [1999] found 70% of applicants were tested for illegal substances but only 17% for “susceptibility to workplace hazards,” such as being exposed to toxins); is indirectly related to the goal (drug tests measure metabolic residue in the urine presumed to reflect past drug use rather than the current presence of drugs or impairment); is inequitable (testing lower-status employees, not those at the top); is invasive absent cause in crossing the borders of the person; involves inadequate documentation (whether of workplace damage by the problem to be solved, the validity of the tactic, or its effectiveness in meeting the goal); or involves misplaced jurisdiction in merging the borders between on- and off-duty behavior and work and home.

  91. In judging surveillance clarity about the frame of reference applied is also needed. Are comparisons based on an ideal standard or to contrasts with what can be empirically observed –whether historically, internationally or in other contexts? A related issue involves whether evaluation is based on a measure of absolute or relative quantity. A useful concept here may be surveillance slack. This is determined by considering the amount of surveillance present relative to what could be collected given the power of the technology.

    There are settings in which technology is relatively weak and in which there are few restraints on its application as in Europe in the Middle Ages. Conversely there are situations in which technology is very powerful, yet there are significant restraints, as with wiretapping in the United States. This contrasts with many contemporary authoritarian societies in which the technology is strong and the restraints on it application are few. The ratio between what could be known given the means for discovering personal information and what is actually known was probably much smaller in the 19th century than today and smaller still in the middle ages and throughout most of recorded human history.

  92. Many of these principles were first expressed in the Code of Fair Information Practices developed in 1973 for the U.S. Department of Health, Education, & Welfare. They are also now found in various European (e.g., the OECD Guidelines) and Asian directives. This “data protection” model was appropriate for the database forms of surveillance up to the 1980s. Yet it is not adequate for contemporary means (e.g., cross-border data flows, the Internet, embedded sensors, and automated data collection), nor does it give adequate consideration to goals. At the time the principles were drafted, the collection of the data entered into computers was generally not seen as a major issue (at least in the United States relative to Europe). Since then other forms of contentious data collection have become more prevalent, such as urine drug testing, biometric identification, electronic location devices and hidden video and infrared cameras. The Fair Information Principles thus need to be broadened.

  93. When I asked this question regarding DNA matches of a forensic expert she said, “well that depends --not with the Dot Blot method in which chances of error are 1 in 250, but certainly with the STR test method in which chances of error are in the trillions.” This again indicates the need to differentiate and not just to argue for or against means that are rarely as homogeneous as popular language and discussions assume.

    There may be disagreements on which standard should be applied (e.g., for fingerprints should 2 or 10 fingers be scanned?) and even on the worth of a given means. Note controversy over the polygraph, facial recognition, and handwriting analysis, and recently even fingerprinting (Cole 2001).

  94. This can involve knowledge that the system is used with or without out knowledge of exactly when and where (e.g., a sign saying an area is under video surveillance but with no cameras in view).

  95. The U.S. contrast with Europe and parts of Asia is striking here. Space limits consideration of the many cross cultural issues raised here (on policy issues for example Flaherty 1989, Bennett and Raab 2003). Are we moving toward a standard globalized form of engineered social control as a result of common functional needs, economic and cultural imperialism or fads or do continuing historical, cultural and social structural differences continue to assert themselves even with a common material forms? Again what you see depends on where you look and looking closely reveals continuing variation. Elsewhere (Marx 1995) I consider cultural and structural factors that can help account for some of the differences. But the more fine-grained the variation the less I think broad theory will be useful. How for example (or can we reasonably even) explain Britain’s leadership in the use of video cameras, the greater prevalence of drug testing and undercover operations in the United States, the early sophisticated German use of computer dossiers and artificial intelligence and the greater French reliance on political dossiers, not to mention different degrees and forms of resistance? It is also possible that over time what needs to be explained is diffusion rather than acceptance. Note the increasing spread of video cameras in the U.S. and elsewhere relative to Britain withits early start or the increasing internationalization of U.S. biometric techniques.

  96. For example don’t test for drug metabolics if your goal is to identify impaired performance; don’t crack a nut with a sledge hammer. Consider also some insurance companies charging higher rates to persons who have bad credit records even with good driving records or credit card companies raising rates when an individual is late in paying a utility bill. In these cases the issue is also one of fairness and reflects the broad risk-assessment-in-the-interest-of-prevention approach to control vs. local justice for the case at hand.

  97. A frequent source of persons talking past each other is to confuse the general validity of a tactic with its application in any given case.

  98. For example, performance tests directly related to the job task are likely a better measure of impairment than drug tests. Some research suggests that increasing the length of the yellow light by a second is more effective than photo-surveillance in reducing collisions. [FIND REFERENCE]

  99. For example, we value both the individual and the community. We want both liberty and order. We seek privacy and often anonymity. Yet secrecy and lack of identification can hide dastardly deeds, and visibility can bring accountability and responsibility (Etzioni 1999; Allen 2003). But too much visibility may inhibit experimentation, creativity, and risk taking.

    In our media-saturated society we want to be seen and to see, yet to be left alone. We value freedom of expression and a free press but do not wish to see individuals defamed or harassed. We desire honesty in communication and also civility and diplomacy. We value the right to know but also the right to control personal information. The broad universalistic treatment citizens expect may conflict with the efficiency- driven specific treatment made possible by fine-honed personal surveillance. Yet the desire to be valued as a distinct individual rather than a member of an abstract category speaks to this very need for rich data and fine-grained analysis.

  100. Some of which are of doubtful legality and clearly violate the spirit of an open society.

  101. Contrast, for example, the prior need to physically enter a premise to install a bugging device on a computer with the current situation: classified government programs such as Magic Lantern and Carnivore said to be capable of doing this remotely (but only under judicial supervision of course).

  102. This is “Moore’s Law”, which says that the number of transistors per chip doubles at this rate, a factor loosely correlated with processing speeds. See ( ).

  103. These are currently passive devices lacking an independent power source that are read at short range with scanners. The results are to be used for medical treatment and for security and access control. Those attuned to surveillance creep issues may ask where it will lead. More powerful readers or the ability to independently transmit would permit tracking at distances beyond a few feet (this however has technical costs that undercut the efficiency offered by RFID in its current form). Even at short range, however, there is a dearth of policy and awareness, particularly with respect to low visibility readers. As tagged individuals and their objects move along paths and roads and through hall-, entry- and doorways, their location and mobility can be invisibly tracked, and their social networks can also be inferred, as this information is linked to equivalent data from others.

  104. The former is possible because of the low cost and ease and also relates to the spillover characteristics of some technologies (e.g., video captures all within its purview, and DNA analysis gives information about an individual’s family). Among important factors for the more individualized and intense surveillance is the greater power and precision of the technology to cull and select from vast amounts of data ordered by predictive models and the ability to track in a context of perceived need.

  105. The RFID chips offer a wonderful example of the move from mass to individual surveillance. With a related technology --the earlier universal bar codes on consumer goods, all quarts of milk looked the same. With RFID technology, each quart has a distinct identity.

  106. Consider things such as the spill-over effect that the recording of conversations to a call center “for quality assurance purposes” has when recordings are made even of what the caller (and others nearby) say while they have been placed on hold and assume no one is listening. The head of a monitoring company reports, “You could have a show on Broadway just playing the calls.” New York Times, Jan. 11, 2005, p. A1.

  107. Thus the computer technology that brings new forms of surveillance can also brings encryption to protect information.

  108. Beyond affirmative privacy protection legislation, note some congressional and judicial reinging in of existing programs such as the Patriot Act, and the shutting down of others, such as the Total Information Awareness (TIA) and the Terrorist Information and Prevention System (TIPS). The latter sought to involve field workers such as delivery people, letter carriers, meter readers and cable and utility workers readers to report on unusual behavior. However given what we know about wills and ways elements of these are likely to resurface.

  109. However, these are not the same as Orwell’s “telescreen,” which simultaneously brought the “news” and also watched. Yet over time the difference for some forms is one of degree (note cable TV systems that monitor viewer behavior and can collect other data from sensors in the home including visual images for security purposes). They also merge, or at least have shared functions, in the sense that the visible camera or sensor that surveils and may also be offered as news, additionally communicates as a reminder of what the rules are and symbolically makes a statement about how subjects are viewed and about the surveilling organization.

  110. As Foucault noted the inculcation of discipline via a watcher from above becomes less necessary to the extent that individuals take over the standards of normalization and watch themselves, whether to avoid sanctions or because they are believers. If the panoptic methods really worked as pedagogical and deterrence tools, they would ironically become unnecessary, at least for those socialized to them. An interesting uncertainty-certainty process changes as control technology becomes less expensive. Contrast the traffic police in unmarked cars who might be there with the photo speed cameras that are always there.

  111. Which contrasts with legitimations offered through active empirical, logical, and moral analysis.

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