I. Introduction

In book IV of Gulliver's Travels, Gulliver finds himself among the wise horses, the Houyhnhnms, and is taken by their rational approach to life, adopting their mode of life, as much as, shall we say, is humanly possible. Gulliver decides to submit to the rule of the Houyhnhnms, although the horses execrate Yahoos like himself and dream of exterminating them. In doing this, he separates himself willingly from human beings and becomes enslaved to the wise horses:

The passions (Love, Veneration) which Gulliver experiences determine his decision to remain among the horses, which is further justified by the promise of the contemplation of virtue and the absence of all vices. The structure of the episode suggests, on Gulliver's part, a willing submission to forces of control, an acquiescence to being ruled, a desire to be part of the Houyhnhnms’ world. While at first Gulliver admits not to have felt the awe which characterises the Yahoos’ relationship to the Houyhnhnms, it eventually grew upon him, ‘and was mingled with a respectful Love and Gratitude, that they would condescend to distinguish me from the rest of my Species’.

In his portrayal of Gulliver's predicament among the Houyhnhnms, Swift foreshadows modern forms of control. The structure whereby our passions lead us into restraint, perhaps even to a desire for subjection, is characteristic of certain forms of domination. As Philippe Sabot notes in the previous chapter, Bernard Harcourt has argued that our desires and passions can enslave us. Unlike what Orwell had described in Nineteen Eighty-Four, modern society has mastered individuals and populations by means of their passions and interests, and has ensnared them. We willingly deliver ourselves to surveillance technologies, in particular to the digital world, and we have come to accept forms of control exerted by powers over which we have no influence. Like Gulliver, we agree to certain types of surveillance which use our passions rather than attempt to suppress them. For the most part, Harcourt argues, and just like Gulliver, we surrender willingly.

I. Contemporary Surveillance

The con-temporary, Giorgio Agamben argues, is not simply another word for the present. ‘Those who are truly contemporary, who truly belong to their time, are those who neither perfectly coincide with it nor adjust themselves to its demands.’ To see ourselves truly in relation to our own time demands that we look past the repetitive aphasia of our condition. Images of darkness and light pulse through his text and account for its metaphorical richness.

It is a matter of struggling ‘to perceive not its light, but rather its darkness’. And again:

If this is Agamben's metaphor for contemporary critique, it is doubly apt for a collection of essays about the protean forms of contemporary surveillance. For what is surveillance itself but a play of light and shadows? In Michel Foucault's celebrated terms, we have witnessed a shift from a society organised around power as a spotlight designed to ‘render accessible to a multitude of men the inspection of a small number of objects’, to one in which power is a searchlight intended to make visible ‘for a small number, or even for a single individual, the instantaneous view of a great multitude’. The searchlight is exactly that which lights us up, exposes our position, individually and collectively, for the benefit of various interrogators, investigators, invigilators and night watchmen. It is not just that they are hidden in the shadows but that we are ‘blinded’, as Agamben says, ‘by the lights of the century’. The glaring light of our exposure is what makes it so hard to see what's going on around us. We suffer from miosis.

Surveillance is a notoriously elusive concept and many authors opt for safely short definitions such as ‘the systematic monitoring of people or groups in order to regulate or govern their behavior’; ‘the monitoring of human activities for the purposes of anticipating or influencing future events’; or ‘processes in which special note is taken of certain human behaviours that go well beyond idle curiosity’. This collection aspires to something a little more specific.

I. Post-Panopticism and the Visualisation of Race

Fanon's analysis speaks to the ineradicable synecdoche of seeing race. Upon entering the white field of vision, in Fanon's analysis, a Black man's opaque skin reflects every other Black man like himself – past, present and future.1 He can no more be denuded of this epidermal mirror than he can shed his own skin. Fanon is fixated by a white gaze that he can sense and see; the white watcher does not have to be directly before one's eyes to do its work of dissecting. The conquering gaze could also inhabit a camera, or it may survey Black emergences indirectly by data gathering, statistics and prediction. What all these microtomes have in common is their inbuilt perception of blackness as a distinguishing category of experience that holds unspeakable dangers and must therefore be controlled and contained through permanent surveillance.

In his dread of being watched by a white observer – what we may call his racial scopophobia – Fanon articulates a deeply rooted pathology of American anti-Black racism. As I suggest in what follows, throughout the history of surveillance in the United States, suspicious blackness has provided an expedient template for determining who should look – or, as the case may be, point the camera – at whom. Consequently, any subversion of this template – the amateur video showing four LAPD officers brutally beating Rodney King, or sousveillance projects today – is automatically remarkable. So much so that it is easy to forget that no a priori surveillance system has ever demonstrated non-white subjects to be unrulier than the general population and thus in need of greater surveillance efforts; race was the reason why certain subjects were surveilled at all, in the firm expectation that they were inherently suspicious and thus susceptible to disorderly behaviour.

I. Introduction

Surveillance, as has been forcefully demonstrated in earlier chapters, does not apply indiscriminately. As Banita and Joy have argued in their discussions of race, the visual persists at its core, and the question of who is visible to whom is crucial. Similarly, surveillance is never gender blind, and visuality underlies the gendered experience of surveillance as much as it does its racialised exercise. Gendered dimensions of surveillance have nevertheless remained unexamined in the academic field, so much so that the title of a special issue of the Surveillance & Society journal published in 2009 claimed that ‘[s]urveillance studies needs gender and sexuality.’ This oversight is often traced back to Foucault's description of the ‘modern subject’ as a generic ‘he’ in Discipline and Punish. By contrast, the research which has been produced on gender and surveillance tends to focus on the ‘subjectivity and the experience of surveillance’ and to study ‘the local, the discursive, the performative and the embodied’. In a similar vein, van der Meulen and Heynen write that ‘[g]endering the field involves thinking about surveillance practices as socially located, as embodied and as having differential impacts’. This chapter adopts this proposed shift in perspectives to study gendered surveillance not in sociology but in fiction.

Why fiction? Literary fiction, through its instantiation power, offers a privileged means to study surveillance from the perspective suggested above. By focusing on the experience of surveilled subjects, fiction makes salient the surveillance effects which often remain elusive in social life. For instance, while providing a literary representation of databases is arguably quite a challenge, fiction can stage the struggles of individual characters when databases are the primary source of their social identity. Literature gives a perspective ‘from below’, offering readers a vicarious experience of environments which are exponentially saturated by surveillance – and in particular to observe the interpretative skills one develops in such a context – and drawing their attention to trends which are already present in their own societies. Rather than encouraging a wait-and-see attitude, fiction both stages resistance and develops its own literary modes of subversion, among which satire features prominently. As the chapter will make clear, Atwood is to some extent the heiress of early modern authors such as Swift, and of their textual strategies, highlighted by Tadié in Chapter 3 of this volume.

Why turn to Margaret Atwood's fiction to study the intersection of gender and surveillance?

I. Introduction

It is no surprise that surveillance, today recognised as an unmistakable field of study, is also a topic widely addressed in post-9/11 literature. As Brunon-Ernst explains in Chapter 6 of this volume, the first wave of scholarship on surveillance and literature dates from shortly after the publication of Foucault's Discipline and Punish in 1975. Some of the best-known works are that of John Bender, Imagining the Penitentiary, published in 1987, and that of D. A. Miller, The Novel and the Police, published in 1988. Miller declares that his work ‘centres not on the police, in the modern institutional shape they acquire in Western liberal culture during the nineteenth century, but on the ramification within the same culture of less visible, less visibly violent modes of “social control”’. As Mark Vareschi underlines, ‘[t]aking the establishment of the modern police force in the nineteenth century as the historical backdrop, Miller argues for the novel's engagement in regimes of disciplinary power’. As for Bender, he states that ‘art, culture, and society are not separate or separable’ and that ‘[n]ovels as [he] describe[s] them are primary historical and ideological documents; the vehicles, not the reflections, of social change.’ In his work, he takes a closer look at how prison and the penitentiary come to share concerns with the novel.

More recently, in The Watchman in Pieces: Surveillance, Literature, and Liberal Selfhood, Rosen and Santesso explore the idea that ‘surveillance and literature, as kindred practices, have light to shed on each other – on each other's theory, mode of operation, and ways of grappling, as it were, with the reality principle’. In Spaces of Surveillance: States and Selves, Susan Flynn and Antonia Mackay take a closer look at how surveillance affects the space one inhabits and has an impact on one's identity. The authors state that ‘[t]he potential contained in surveillant technologies is […] twofold: providing bodies with identities they may not want, but at the same time providing them with an identity that can be determined as real – I am watched, therefore I am.’ Taking an interest in photography, art and literature, the authors of this collection offer ‘a unique insight into the ways in which bodies have both voluntarily and involuntarily been shaped and defined by changing technology’.

I. Introduction

Over the past quarter century, a great deal of crime has migrated from physical space to cyberspace. What was formerly achieved with a can of spray paint can now be engineered with SQL injections and file transfer protocols. Extortion demands, once made face to face, by letter or through a telephone call, can now be made online. Extortion payments, previously delivered in a paper bag or briefcase, can now be accomplished by electronic funds transfer. Sexually explicit images of children, once circulated by hand or purchased in disreputable bookstores, are now reproduced and disseminated instantaneously, in real time. Adults no longer need to lurk near schoolyards to arrange illicit assignations, preferring less obtrusive encounters in chatrooms frequented by young people.

Predictably, a great proportion of criminal investigation has also migrated to cyberspace. Cyber forensics, once an esoteric specialty, is becoming increasingly central to crime control. Law enforcement agencies are scrambling to keep abreast of their criminal adversaries. Accompanying the activities of state agencies are those of private citizens. Just as police in recent years have invited a degree of citizen ‘co-production’ in conventional crime control through initiatives such as Neighbourhood Watch and Crimestoppers, contemporary law enforcement agencies have established online reporting protocols and hotlines. The FBI's Internet Crime Complaints Center (IC3) and the Australian ReportCyber are two examples.

Throughout history, state police have used covert or undercover methods to complement more visible, transparent investigative techniques. The reasons are pragmatic: certain types of activity, such as serious organised crime and complex criminal conspiracies, are less amenable to interdiction by means of overt, conventional police practices.

Undercover policing has been described as a ‘necessary evil’ because of its potential for misuse. By their very nature, covert methods are open to abuse and to the avoidance of accountability. One need look no further than totalitarian states of the twentieth century for grim illustrations. But even in democratic states that present themselves as paragons of governmental accountability and champions of human rights, abuses can and do occur.

Covert policing is by no means the monopoly of state policing and security services. Nor, as the editors of this volume note, is it a uniquely modern phenomenon. Private individuals, members of non-governmental organisations and commercial entities have all engaged in investigation for a variety of motives, including a sense of civic responsibility, moral indignation or commercial gain.

I. Introduction

This contribution aims to question some of the contemporary forms of surveillance by focusing on the major changes we are witnessing today and the ambiguities they contain. The most obvious ambiguity today concerns the articulation between the surveillance society and the expository society. This articulation reflects a recent evolution, linked in particular to the explosion of the Internet and social networks and to the evolution of surveillance itself, which finds a decisive relay and a new sophistication in the desire for selfexposure and virtual transparency of individuals. At another level, this desire may itself be linked to a paradoxical need for protection: the exposure of oneself, of one's private life as well as of one's personal data, may appear to be the expression of unlimited freedom; but it also increases our desire for security. These debates have found in the COVID-19 health crisis a particular topicality that concentrates and intensifies their stakes and ambiguities. In the following considerations, we will take up the thread of these contemporary debates and show how contemporary surveillance apparatuses are born out of these contradictory desires and the ambiguous divisions they establish between private and public, freedom and security, intimate and exposed life.

II. From Disciplinary Panopticon to Biopolitical Governmentality

The very idea of surveillance is full of contradictory meanings. This ambivalence resides, on the one hand, in our reticence in the face of the implementation of control procedures which have the effect of limiting our freedom in fact and sometimes in law, and, on the other hand, in a deep desire for security, which itself calls for the control of some acts, some behaviours, and even some populations said to be ‘at risk’ (whether ordinary offenders, radicalised people or even, in recent times, people infected with COVID-19).

This ambivalence may be seen as the correlate of an evolution which concerns both the modes of exercising surveillance and its supposed purposes. Recall that from the mid-1970s, Foucault drew the contours of a disciplinary society and of a biopolitical governmentality based on ‘apparatuses of security’ (dispositifs de securite). But in the twenty-first century, surveillance operations are changing and do not play the same role in either case.

The very notion of surveillance, as Foucault developed it in Discipline and Punish, is rooted in an ‘anatomo-politics of the human body’.

I. Introduction: Timely Reassessment?

One of the aims of the present volume is to examine how the COVID-19 health crisis has concentrated and intensified the stakes and ambiguities of surveillance. In this investigation, both Sabot and Gligorijević feel the need to use the panoptic metaphor to further their arguments. This scholarly resurgence is reflected in more general use in newspapers and media. The most telling of these is the newspaper article entitled ‘Panopticon in Your Pocket’ on the COVID tracing app. With the exception of March 2004 and January 2017, the Internet search request ‘Panopticon’ has never trended so high. In the stock of shared metaphors to characterise surveillance, the adjective ‘Orwellian’ is a strong contestant. However, Panopticon is a clear winner. But to what extent does this use reflect an appreciation or a misunderstanding of Foucault's work on the transformation of governmental power over the last two hundred years?

Many academics have tried to make sense of the unprecedented changes brought on by the COVID-19 pandemic. Judith Butler is one of them, writing:

The Panopticon as metaphor puts a dystopian spin on any investigation of the pandemic. This stand needs to be contrasted with Bentham's own reference to his panoptic project as utopian.5 Using the term ‘panoptic’ as a characterisation of surveillance tips the perspective on the side of the dystopian and aims to bring to view all the unsatisfactory elements that members of society might not have seen or understood in their practices. The aim of this chapter is to show how the Panopticon alternates between dystopian (state and corporate surveillance) and utopian (transparency, publicity, accountability) models of surveillance. Indeed, as Tadié also explains in this volume, surveillance has both a utopian and dystopian legacy.

I. Introduction

In California, an estimated 108,000 people sleep outdoors, while 40,000 sleep in shelters every night, which is more than in any other state in the United States. Furthermore, in 2019, the U.S. Department of Housing and Urban Development noted in its Annual Homeless Assessment Report that in one year, the rate of increase in the state (an additional 21,306 people, or 16.4 per cent) was ‘more than the total national increase of every other state combined’. California represents 12 per cent of the country's population but accounts for about 24 per cent of the total homeless population in the United States. It is home to a very high number of court cases challenging what is referred to as the criminalisation of homelessness, which both justifies and fosters surveillance practices. The homeless crisis, which is the state's most visible and persistent problem, also crystallises all the challenges of contemporary surveillance: categorisation, visibility and invisibility, crime and criminalisation, surveillance under the guise of charity or ‘care’ work, privacy issues, policing, and the use of surveillance devices and technologies by local authorities. As surveillance regulates boundaries and relations, it involves all strata of society and a wide range of social actors from neighbourhoods and local charities and police forces all the way up to the President of the United States.

David Lyon includes behaviours practised by the homeless, petty criminals and passers-by alike in his definition of surveillance. He notes that ‘police officers watching someone loitering in a parking lot would be an example’ of watching ‘over those whose activities are in some way dubious or suspect’. Public policies aimed at dealing with the presence of the homeless in city centres definitely require specific action which aims to both manage and protect. Surveillance lies at the heart of governmental and police action, as evidenced by several chapters in this collection. This chapter examines examples of surveillance used in action by the government and the police, as ‘dubious’ and ‘suspect’ behaviours are qualified as crimes, while suggesting what the elements of the surveillance practices that apply to the homeless might be.

I. Introduction

The very nature of settler colonialism is to refuse to see our settler selves clearly and to fail to acknowledge how as settlers we act in the world. We stand before a mirror and see ourselves distorted and disfigured to fit a white nationbuilding agenda that proclaims we are part of a nation where fairness prevails. In Australia the fair of face do rise, not so much through natural talent but because, as beneficiaries of colonisation, we are standing on the necks of others and especially of Indigenous others. It is with these facts very clearly etched in my mind that I commit words to print as a person of settler descent writing on surveillance and the colony. I do so in an attempt to interrogate the culture I was born into, a coloniser culture that perpetrates violence and brutality against those perceived as deficient due to their race and that privileges my white skin. In this sense I write from a place of autoethnography informed by critical race theory and Indigenous scholarship, with the intent to problematise surveillance as a tool of the occupation of the place now known as Australia. I also write from the unceded lands of the Wathawurrung people on the south coast of the continent and pay my respects to their Elders past and present.

This chapter is concerned with state surveillance of Aboriginal peoples as a tool of governance to maintain the occupation of Australia. It asks what surveillance contributes to the occupation, how it operates and how it shores up occupier sovereignty. It does not propose to write in detail about Aboriginal experiences of surveillance; Aboriginal people themselves are better placed to write on such matters. Rather, my object of analysis is not ‘them’ (Aboriginal peoples) but settler colonialism and surveillance as a form of power belonging to it. This discussion begins from the premise that Australia is occupied territory and that settler sovereignty is exercised through what Aileen Moreton-Robinson describes as a race war to control the lives of Indigenous people. For the most part, this race war no longer looks like armed conflict but rather is today ingrained in the structures and actions of governmental institutions. Racism becomes normalised in a culture built on racism, to the point where it becomes so institutionalised and so socially acceptable that it is invisible to those unaffected by it.

I. Introduction

In the introduction to his 2012 work entitled Crisis(es) and Law, Jacques Larrieu defines crisis as a ‘disorder’ causing ‘the disintegration of the norms that usually regulate society’. This disorder can in turn give rise to a ‘law of circumstance’ which is to be considered dangerous but which can also be a source of progress as it invites specialists to conceive of a ‘new legal system that draws lessons from the crisis’.

Digital technology is an important part of the response to crises, and its use in the service of the struggle against them plays a major role in the disruption of the functioning of our legal system, in an undoubtedly more insidious than conscious manner. Of course, the upheaval that digital technology causes in the legal system is not specific to times of crisis. What is unmistakably specific to such times, however, is how this tool is used during periods of unrest, and how its legitimisation makes the law forget its own foundations. If digital technology is sometimes the object of specific legislation, it is above all because it constitutes the very condition of the effectiveness of the regulatory measures taken by our governments, an effectiveness that runs the risk of negating certain freedoms.

Should the use of such effective tools therefore be abandoned? The answer is ‘no’, but it is undoubtedly necessary to limit their implementation with a legal framework adapted to these exceptional times. The goal of this reflection, therefore, is to guide the development of such a framework, in the same way as Gligorijević attempts to do in Chapter 5 of this collection.

The present reflection covers two areas of application. The first concerns the lessons learned during the struggle against the pandemic. The measures implemented today against COVID-19, or those envisaged for use against future pandemics, all have a restrictive impact on freedoms that goes beyond their simple limitation and sometimes represents a challenge to their very essence.

I. Introduction

Privacy is implicated whenever surveillance policies and practices are implemented. In liberal democracies, the onus rests upon those using surveillance, especially governments, to justify incursions on individual privacy. A prominent argument for justifying governmental surveillance is collective security. Security concerns about criminality have seen police use surveillance, including phone-tapping. National security concerns have seen larger-scale surveillance, including metadata collection. Medical security is a growing concern raised to support surveillance, including cellular monitoring of individuals’ movements.

Security, however, is not a moral panacea for justifying the privacyintrusive nature and consequences of surveillance. This is because security, alongside liberty, is embedded in the concept of privacy, and is a reason why privacy is valued. Positioning a broad conception of security against privacy is, therefore, an inaccurate opposition, and arguing privacy must give way whenever large-scale security concerns are raised presents a false conflict.

Other chapters in this collection assume the central value of individual privacy to the humanities tradition1 – and rightly so. These contributors use the tools of sociology, literature and history. They provide us with a literary and social context for this value. This chapter looks more closely at the concept of privacy itself, and, specifically, the form it takes in law. It explores the complex normative underpinnings of privacy, which complexity may give rise to a greater readiness to circumvent privacy when broad utilitarian concerns are raised in apparent opposition to it. The multifaceted nature of privacy, however, does not make it a fluid or weak moral concern: the two fundamental principles of liberty and security both permeate the various normative justifications for protecting privacy. This problematises arguments that surveillance is a justified incursion on privacy, based upon a general appeal to collective security. Particularised, evidence-based arguments are required to address the principles of individual security and liberty, protected within privacy itself, and to discharge the onus of justifying each instance of surveillance.

II. Dealing with Privacy: Surveillance as Security

Although there is no universal, settled definition of privacy, concretely delineating its scope, broadly understood, privacy acknowledges an individual's interest not to be subjected to unwanted observation or access by others in certain, normatively defined, circumstances; or the concern that an individual's family, home, intimate and ‘non-public’ life not be interfered with by others, including the state, the press or other individuals. There are different ways of delineating the privacy interest, and protecting that interest in law.