Re: <nettime> Pascal Zachary: Rules for the Digital Panopticon (IEEE)

[Prem Chandavarkar <prem.cnt@gmail.com>]

This discussion thread indicates that (a) there is a high level of discomfort with the current situation of the digital panopticon, and (b) bringing the oversight of engineers (or other humans) into the loop is not really going to change things much because there are wider systemic issues at stake here.   

So what do we do about it?  Or given that it is likely to be a long and arduous struggle: where do we start?  My sense is that a fundamental issue on which a great deal of work is needed is the question of how presence is authenticated within space.

This springs from Lawrence Lessig's argument that there are four primary factors that condition our behaviour: (1) Laws; (2) Markets; (3) Social and cultural norms; and (4) Architecture.  And it is at the level of architecture where things have changed the most.  When all architecture is physical, the spaces we move through are directly and explicitly tangible to a high degree.  We sense and perceive the spaces we are in, their limits and links, their division into private and public realms, which space is proximate, which one is distant, and who inhabits these spaces along with us.  And we plan and adjust our behaviour accordingly.  But all architecture is not physical any more, and many of the spaces we inhabit on a day to day basis are virtual.  This affects not only the tangibility of the space, but also the dynamics of presence within it.

An example that brings the issue into focus is a pornography store.  In its physical version, if you see an eight year old child walking into the store you can quickly form a judgment on whether this is acceptable or not.  More significantly, on the basis of such judgments society can legislate on whether children should be allowed in such stores.  But in the virtual version of the pornography store you never have a clear sense of who has entered the space.  You cannot even clearly define the limits of the space to the level you could in a physical store, which further obscures the possibility of your perception of who inhabits the space along with you.  The challenge of defining acceptability in a wider moral sense now becomes problematic to a high degree.

The reason why one is uncomfortable with allowing a young child into a pornography store is that there is an inherent power imbalance contained in this juxtaposition.  Pornography deals with a realm of behaviour that demands a minimum threshold of physical and psychological maturity, and when a child who has not yet crossed this threshold enters such a space the child does not possess the means to cope with the demands that the space makes on him/her.  And if you are thrown into a situation whose demands you cannot resist because you are not empowered with the means of resistance, then the power imbalance is likely to lead to a compromise of rights that are believed to be fundamental.  The child's right to liberty is compromised in a pornography store by the high possibility of psychological disturbance and sexual exploitation that could result from this juxtaposition.

So when you spend a substantial portion of your life in virtual spaces, and an inherent characteristic of such virtual space is that presence is never properly authenticated, then you will never know who is in that space with you, and therefore are not in a position to perceive the power imbalances you are subjected to.  It is like a child walking into a pornography store that has worked out a way of masking its identity, so that the child is not even aware of entering such a store.  In such a situation how can you protect and preserve fundamental rights?

The destabilisation of presence causes further complications to our social contract.  In our current notion of the social contract we surrender a certain level of freedom to authority in order to benefit from the order that ensues.  So we agree to be subjected to the authority of government, judiciary, or police.  But we do not grant this authority to everyone, we confine it to specific institutions.  And we place constraints on these institutions to limit the possible abuse of authority: we confine their operation to specific spaces such as courthouses, and when we cannot enforce such spatial constraints we insist on uniforms or badges of identity and insist that the presence of these identity markers is rendered explicitly visible when their authority is invoked.  And on top of this we seek systems of checks and balances, where each of these institutions is subjected to oversight from the other, and finally subjected to public oversight through the right to information, a free pres
 s, and democratic vote.  All this springs from the age old question of who will watch the watchmen.  How do we tackle this question in virtual space where the lack of authentication of presence prevents us from even recognising the watchmen?

And then there is the issue of the traces we leave of our presence in a space.  After we have left a physical and public space, if anyone wishes to ascertain what we did in that space from the traces we left in it, the inherent complexity and messiness of physical reality demands a forensic effort that is so difficult and complex that it is worth attempting only when there is clear evidence of a serious crime having been committed.   This fact allows us to retreat into the shelter of private space, where if we share it at all it is only with a very small group of people with whom we share emotional bonds and purpose.  The option of retreat into this sheltered realm is crucial to our sustaining our ability to construct a sense of self and identity.  And the evolution of the identity we construct is predicated upon a distinct separation between public and private realms, for the continued movement between the two allows us to use one to critically evaluate the other.   The right to pri
 vacy is thus fundamental in the construction and evolution of personal and social identity.  But when we inhabit virtual space we leave traces that are not only explicit but are easy to gather and aggregate.  And when presence is unauthenticated we do not know what traces we have left, who is gathering them, and the extent to which the aggregation of traces allows others to infer what we think and do in the private realm.  How can we protect the right to privacy in such a situation?

Bentham's panopticon was one of the first devices to explicitly use the masking of presence.  The prisoners modify their behaviour not because the guard is watching them, but because the presence of the guard is masked and so they do not know whether the guard is watching them or not.  In such a situation it is safer for the prisoners to assume that the guard is always watching them, and they therefore police themselves.  Bentham argued that this makes the panopticon an efficient design as one saves labour because the occasional presence of the guard in the tower is sufficient.  Bentham's utilitarian philosophy (and I do not wish to enter into a defence or critique of utilitarianism here) sought the maximising of the overall level of happiness in society.  A criminal has already compromised the overall level of happiness by committing a crime, and further compromises that level of happiness by the fact that society has to extend effort in running prisons.  Therefore an efficient pris
 on design helps to increase overall levels of happiness.  This argument holds only if the panopticon is confined to prisons, and I am sure Bentham would have been very troubled by the pervasiveness of the digital panopticon.

Ultimately it comes down to the question of what kind of law we should have.  A quest for a moral society implies a law that not only defines fundamental rights that are intrinsic and inalienable to the human condition but also provides for the inclusive protection of such rights in day to day life.  And our current law only takes physical space into account, which leads to fundamental rights being unenforceable in virtual space.  So as virtual space penetrates further and further into our lives, the feasibility of the quest for a moral society becomes thrown into doubt.  We need a law that allows for the protection of fundamental rights in virtual space.  

This strikes to the core question of governing the internet.  Many have argued that the internet should be self-regulating and should not be governed.  This is a valid argument when it pertains to the infrastructural dimensions of the internet, but is questionable when it pertains to the spatial dimensions of the internet.  A system for spatial construction that is efficient is not necessarily moral.  Moral questions are complex: we will probably never find perfect answers, and the goal should be to continually evolve towards higher levels of morality.  For this we need spaces that are inclusive, where power imbalances are minimised, with strong demands for transparency and accountability, where the diversity of voices in the debate is high, and where resistance is seen as healthy.  Self regulating systems where rapid change is easy have a tendency to bypass resistance, or (when power imbalances are high) to even exterminate it.

We face the immense challenge of constructing a new political and legal theory.  While this is an arduous task where change will be slow and long term, we must remember that whatever we have achieved in constructing constitutional democracy is because a group of thinkers attempted such a challenge a few centuries ago and this thinking empowered a shift from an acceptance of feudalism and colonialism to a quest for an ethical modernity.  We probably have the means to affect change at a faster rate that what was possible in this earlier transition, but until we take on this challenge we will see little relief from the forces that currently trouble us.

Prem


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