Surveillance and Democracy in Europe

Courting Controversy?

Kirstie Ball, William Webster

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781317270775
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Many contemporary surveillance practices take place in information infrastructures which are from the public domain. Although they have far reaching consequences for both citizens and their rights, they are not always subject to regulatory demands and oversight. This being said, democratic fora where citizens and institutions may question such practices cannot be mobilised without widespread awareness of the dangers and consequences of surveillance practices and who is responsible for them.

Through an analysis of surveillance controversies across Europe, this book not only examines the troublesome relationship between surveillance and democracy; but also highlights the vested interests which maintain the status quo. Using a participatory theory lens, Surveillance and Democracy in Europe reveals the historical, social, political and legal antecedents of the current state of affairs.

Arguing that participation is a sensitising concept which enables a wide array of surveillance practices and processes to be interrogated, this insightful volume will appeal to students and researchers interested in fields such as public administration and policy, political studies, organisational behaviour and surveillance and privacy.

1 Surveillance and democracy

Sympathies and antagonisms

Kirstie Ball, Rocco Bellanova and William Webster

This book examines surveillance practices through a participatory theory lens. It considers cases of three different surveillance practices across Europe: Automatic Number Plate Recognition (ANPR), credit scoring and Neighbourhood Watch. Each practice implicates a wide array of individuals, groups and organisations, laws, technologies, and social, cultural and political processes. Our purpose is to consider what is produced by the application of a participatory lens to the analysis of these arrangements. We consider which phenomena are newly foregrounded in the analysis. We consider the levels of analysis that become significant when a participatory lens is applied and we consider the types of conceptual framing and methodological thinking necessary to produce such an analysis. In conducting the analysis we show that issues of institutional boundary porosity become important; that a consideration of rights from first principles and an awareness of the consequences and harms of surveillance practices are crucial for different parties to realise their vested interests in surveillance practices. In examining the multiple levels of analysis suggested by studies of participation, we shed new light on the problems posed by surveillance, the identity politics that surround it and the institutional conditions of possibility for alternatives.

In making this excursion there is one position that we are keen to avoid. It is tempting to start from a normative position where the term “participation” has positive connotations and is seen as a “good thing” which empowers citizens, and where the term “surveillance” is seen as something threatening that may limit fundamental human rights. This is, of course, far too simplistic: each has enabling and constraining potentials; each exhibits opportunities as well as challenges. Instead, we start by acknowledging that surveillant relations and participatory relations denote two spaces of power relations which shape the worlds in which people live. At times their norms and practices intersect, at others they are co-joined and evolve together and they can also be counter-posed and antagonistic.

The complex nature of participation becomes clear when one considers the number of senses in which the term is used. Participation can be a method, a process and an end in itself: a state or situation for which to strive. In everyday terms participation can have narrow or broad connotations. In an online, or “onlife” (Floridi, 2015) society, screen-based interfaces provide services that often demand two-way interaction. Such services not only provide information to the user, they also take information from the user to inform the development of the service. The user participates in service development by providing data. The word participation is used here in a very narrow sense. Such services have, however, facilitated wider forms of participation as well, from flash-mobs to protests.

When looking at participation from a political perspective, the term covers questions of representability, inclusion, exclusion and responsibilisation. Participation is by definition core to the very idea of democracy – that citizens participate in the decision-making process which determines the allocation of resources in society. This can take place via a range of mechanisms, from voting, to contributing to public debates, or being directly consulted about public policy and services. When it comes to bottom-up, citizen-initiated initiatives, participation relates to a sense of being included, of multiple voices and viewpoints being heard. More political-economical uses of the term would refer more to having a stake or interest in a particular process. In its idealised form, participation is the lifeblood of the demos and a vibrant democracy will have an informed and engaged citizenry.

From a cultural perspective, the term invokes different interpretations. In the Netherlands, for instance, participation has been used recently to denote a time of a retracting government, pushing responsibilities for public services back onto citizens with the rubric of promoting a participatory society.¹ The term participation in this case has been used in a newspeak-like manner, masking its true and opposite meanings. To participate in this sense means citizens have to rely less on government and to do more on their own. In social science, the term participation is used to describe a field of methods in different strands of social science research, under the header participatory methods (Whyte, 1991; Tolman and Brydon-Miller, 2001). One of the main foundational principles of these methods is inclusion of stakeholders in a particular scientific, technological or organisational practice, with the aim to democratise that practice. Undoubtedly, the term participation is closely linked to how societies are organised politically and democratically. It appears to refer to inclusivity, plurality of voice and ways in which multiple interest groups interact to co-shape their worlds. It is closely allied to configurations of political-economic power and also implies a longer-term or continuous process within a democratic society, rather than, for example, a discrete moment such as voting. Participation is something one does multiple times, or maybe even constantly: to be a citizen is to participate.

Crucially, participation is a concept which may enliven debates about surveillance as it challenges both the opacity of surveillance processes and the way in which surveillance processes concentrate power. The multiple intersections between surveillance and participation deserve empirical attention. Until the emergence of social media, participation was an issue rarely addressed in studies of surveillance and in practice was limited to the user-centred design of new technology. Concepts such as “lateral surveillance” (Andrejevic, 2004) or “synopticism” (Mathiesen, 1997) widened the research focus beyond the top-down forms of surveillance. However, before the use of online platforms became an everyday activity, citizens’ participation in surveillance was considered marginal. Surveillance itself is now organised as participatory, either directly or indirectly, as millions of people around the world choose to share personal information on interactive web platforms (Bruno, 2012). This information is exploited for marketing insight and in some countries is mandated by law to be made available to law enforcement and national security services. Beyond social media, however, participation and surveillance are already entangled, as the three practices presented in this book will demonstrate.

Participation and surveillance: a contemporary analysis

Contemporary digital transformations are affecting the way in which both surveillance and participation are constructed, with profound implications for both. A number of authors have already examined this relationship (for example, Haggerty and Samatas, 2010; Huysmans, 2014). We acknowledge the contribution of and build upon these analyses. In particular we draw on Huysmans’s (2014) argument that democracy becomes “at stake” as security policies threaten to hollow out human rights, compromise privacy and outflank rights to question, challenge and scrutinise. The problematic intersection between surveillance and democracy arises when surveillance becomes the means to get things done and – in Huysmans’s terms – enacts the limits of democratic processes and institutions.

Surveillance and democracy enact each other’s limits in a number of ways. The first is the way in which surveillance practices can compromise democratic rights (Wright and Raab, 2014). While surveillance practices can act as gatekeepers to manage risk, the sifting and sorting of populations inherent in surveillance practices can endanger rights, opportunities and life chances because of its distributive justice consequences. Surveillance techniques can distribute access to resources throughout the population, but the decision criteria driving these distributions – particularly if they are automated – are quite opaque and difficult to challenge (Haggerty and Samatas, 2010). Surveillance techniques and technologies tend to develop in the commercial realm, in response to commercially sensitive issues that are not subject to public scrutiny or political debate, so are not always as publicly accountable as they might be. Consequently, regulatory issues are not always fully considered during the development of surveillance technology even though excessive surveillance can compromise privacy by exposing individuals and their lives in great detail. Surveillance works as organisations of different types gather, store process and analyse digital data. Organisations which surveil, both public and private, find themselves the reluctant guarantors of data protection and privacy rights, among other things, by virtue of the fact that they collect and analyse information about people and phenomena of interest.

The second is the way in which surveillance practices can simultaneously underpin and undermine democratic processes. Surveillance capacity runs through the information infrastructures which, for example, help to target welfare at the most needy, facilitate democratic participation through voting and distribute public resources efficiently. Surveillant security measures are established in order to protect democratic institutions so the stability and security which are required for a modern democracy to function – and in which citizens may participate – can be generated. Yet surveillance can erode the institutional trust required for democratic governance. Fear of having one’s opinions, movements or activities monitored can quash debate within targeted groups in both authoritarian, post-authoritarian and in democratic societies.

Third, surveillance also affects the nature of participation in different spheres of life, liberating some and constraining others. Within the domain of traffic enforcement ANPR delimits the mobility of those associated with a suspicious vehicle or who are recorded as being of interest to a police investigation. Within the domain of consumption, the financial surveillance of creditworthiness and the surveillance of consumer loyalty delimits who may participate in the consumption of various goods and services. In the peer-to-peer world of Neighbourhood Watch, identity politics spring into life to determine who is welcome and accepted in different neighbourhoods and who attracts suspicion. As citizens and consumers become more aware of how their actions and communications are monitored, surveillance can alter the forms and nature of public participation in all sorts of arenas.

It is not, therefore, a novel idea to suggest that modern society is a surveillance society, where surveillance, facilitated by information and communication technologies (ICT), is increasingly embedded in social structures and practices and is consequently shaping everyday life (Lyon, 2001). But it is novel to examine how intersections between surveillance and participation force the question as to who is participating in the status quo, on what basis and with what effect. A number of recent developments exemplify these points.

The electoral process. New ICT is changing the way that elections are fought and the ways in which citizens engage and participate in the democratic system. Controversy has arisen in elections where mass datasets govern who may participate (Bennett, 2015). Voter relationship management has emerged as a means by which political parties may target messages at different sections of the electorate. Russia has allegedly used social media to shape public debates around the US presidential election and the UK’s referendum vote to leave the European Union (“Brexit”).²

The increasing frequency of data breaches and the paltry sanctions regime. A recent National Audit Office report in the UK (2016) reported that the 17 largest government departments were responsible for 17,000 data breaches in a calendar year, of which only 14 were considered significant enough to report to the UK Information Commissioner’s Office (ICO). Allied to this, the ICO reports fines totalling £3.2 million in 2016 for data protection law violations.³ These reports highlight an ongoing struggle between those creating and using (and losing) data and those responsible for governing its use.

The emergence of post-Snowden legislation. Following the revelations by Edward Snowden that a number of governments have introduced new legislation to enhance their surveillance powers, new statutory measures have been implemented in a number of countries, including China, Russia, the UK, the USA, Turkey, Ethiopia and Poland. These measures have extended state access to private data through back doors and the mandatory sharing of encryption keys. They have also given authority for excessive data retention and relaxed state spying and data protection laws. In 2014 the European Union Court of Justice declared the “data retention directive” invalid, which compelled all communication service providers to store location and traffic data concerning their customers, so to permit, upon request, access by law enforcement authorities. Yet, national governments and the European Commission have done little to bring their legislation in line with the judgment or to provide clear rules about the storage of communications metadata.⁴ In 2017 the Italian government allowed companies to store metadata for six years, which is three times the maximum allowed by the data retention directive. By contrast the UK’s Investigatory Powers Act demands storage for one year only.⁵

Ubiquitous computing, artificial intelligence (AI) and the internet of things. Contemporary surveillance is ingrained in a number of everyday technologies, including smartphones, internet routers, social media, cars, as well as in practices associated with eGovernment, smart cities and big data. Citizens leave extensive data trails as they go about their everyday business. Much of this is personal data used by private companies for commercial purposes, and it is difficult for users to uncover who or what is exploiting their data and within which regulatory regime they are entitled to claim protection. Furthermore, the resilience and security of “ubicomp” (ubiquitous computing) devices have, on occasion, been called into question. The life-threatening consequences of hacking of cars, fridges and insulin pumps has caused particular alarm, and has prompted calls for security and privacy to be considered much earlier in the device design process.⁶

Opaque automation processes. The rise in technological capacity and sophistication has led to opaque computerised processes which determine surveillance practices, product offerings and service outcomes (Degli Esposti, 2014). Practices associated with “big data” or data analytics rely on complex computer programming and algorithms which are impossible for most people to comprehend (Andrejevic and Gates, 2014). Indeed, the outputs of some machine learning algorithms cannot be predicted by their designers, merely interpreted post hoc (Kitchin, 2014). If computer scientists cannot explain the likely results of algorithmic surveillance, then how can other social actors and institutions ensure that these algorithms do not have inbuilt biases? How may they be held to account where they determine life chances (Pasquale, 2015)?

The participatory lens

The approach taken in this book is to utilise a participatory lens to analyse the consequences of the harm and controversies caused by surveillance practices. The book features five interlocking notions which will shape its arguments and form the basis for its conclusions. The first is that surveillance practices are nuanced, even banal, as they take place at multiple levels and configure relations of power between watching and watched actors (Bellanova et al., 2010). The second is that surveillance is an organising principle embedded within the processes which enable everyday activities to take place. It has become part of the way things get done and accordingly imparts benefits and opportunities as well as harmful consequences. The third is that surveillance practices and participatory practices have co-evolved and in many ways are inseparable, sometimes existing in tension and at other times in harmony. The fourth is that a focus on surveillance controversies enables the analyst to reveal traces of this co-relation and to understand how it plays out. The fifth, and final theme, is that a multi-level analytical focus on surveillance controversies and their consequences also enables closer judgement to be made about the relative desirability of surveillance practices and the relative robustness of participatory processes that intersect with it. These themes are explored in three empirical cases described later in this chapter.

The participatory lens that we deploy in this book rests on the diverse and complementary ways in which participation as a concept is mobilised in the political science and public administration literatures. Although it has always been a core concept and practice underpinning modern democracies, it takes a variety of forms. In the representative democratic system participation could be understood as being limited to voting in elections and referenda. Citizens vote for representatives who are responsible for executing decisions and allocating scarce resources on the public’s behalf and with its formal legitimate authority. There has also been scope to contribute to public discourse about public policy and services in a wider sense. From the 1970s onwards there was considerable interest in complementary forms of participation and engagement, including mechanisms for consultation and ways of garnering public opinion. Debate has arisen over which form of participation promoted true citizen empowerment and which has borne only lip service to such an idea. Some participatory theorists concluded that direct democracy only occurred where citizens were directly involved in decision making. In recent years there has been a resurgence of interest in participatory mechanisms that can be realised through new ICTs, be it voting via mobile phones, discussion forums or mining social media to gauge public opinion. Questions here revolve around the type of participation that ICT engenders. It is evident that participatory theorists see participation as a “good thing” and healthy for democracy because it provides for an active citizenry and legitimises decisions and democratic institutions. A number of pertinent concerns, however, have arisen.

One such concern is how to maximise engagement and how to engage all citizens effectively. This is because the effectiveness of participation depends on who is engaging, with whom, for what purposes and under what rationale. Another is that in practice participatory processes are not neutral, they are spaces where vested interests are at play and where power is exercised. When surveillance practices are viewed through participatory lens, we can see whose interests are bound up in the surveillance process and which stakeholders are at play. Many participating actors have a stak...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Acknowledgments
• List of contributors
• Abbreviations
• 1. Surveillance and democracy: Sympathies and antagonisms
• 2. Surveillance theory meets participatory theory
• 3. The cases: ANPR, credit scoring and Neighbourhood Watch
• 4. Search and indignify: Automatic Number Plate Recognition in Europe
• 5. Blacklists and black holes: Credit scoring in Europe
• 6. Peers and prejudice: Neighbourhood Watch in Europe
• 7. Surveillance and democracy: Towards a new analytical language
• Data sources
• References
• Index