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Surveillance & Privacy in U.S. Law & Literature

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Jeff Clapp

on 27 October 2014

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Transcript of Surveillance & Privacy in U.S. Law & Literature

Surveillance & Privacy
in U.S. Law & Literature
Jeffrey Clapp
Hong Kong
Institute of Education

Literature Against Law
Law and Literature
Surveillance and Metadata
A Poetry of Privacy
In general, law has a undesireable reputation in the literary humanities.
If law is even worthy of attention, humanists tend to assume that law needs literature's help.
Literature Instead of Law?
[Poets] measure the circumference and sound the depths of human nature with a comprehensive and all-penetrating spirit....Poets are the unacknowledged legislators of the world.


(Percy Shelley, "A Defense of Poetry" 1821)
Law as Violence
Humanities scholars tend to see law as violence.
Either law is violence because of the origin myths which grant it a monopoly on violence;

or, law is violence because it imposes categories, narratives, and decisions which do not do justice to dimensions of lived experience.
In either case, the outcome of law-literature interactions in the humanities is almost always that literature should correct, prevent, or otherwise meliorate law's violence.
Dimock Jacket Blurb
The idea of justice is based on the premise that the world can be resolved into commensurate terms: punishment equal to the crime, redress equal to the injury, benefit equal to the desert. Dimock focuses, however, on what remains unexhausted, unrecovered, and noncorresponding in the exercise of justice. To honour these 'residues', she turns to literature, which, in its linguistic density, transposes the clean abstractions of law and philosophy into persistent shadows, the abiding presence of the incommensurate.
Law as Totalitarianism
This pattern plays out pretty much every time George Orwell's work is mentioned.

From Orwell, commentators extract a theory which regards literature as an antidote to social ills, among them the depredations of law.
More specifically,interpretations of Orwell's work
closely associate law with surveillance.

Literature, on the other hand,
is associated with privacy.
In the case of
1984
in particular, these associations are justified, because they are allegorized within the text itself.

Winston Smith escapes the "telescreen" by beginning to keep a "journal."
The exceptions to the general pattern are humanities scholars in law-and-literature.
In particular, humanists have done very good work by looking at literature through the lens of concepts that have been made concrete and explicit, however fleetingly, by the exigencies of legal decision-making.
"Voluntary?"
Brooks shows that literature and law have long been embarked on a joint inquiry into the question of how an individual's will relates to his or her speech.
My thoughts on the matter are in:

"Richard Wright and the Police"

at www.post45.research.yale.edu
"Privacy?"
Nelson argues that the changes in the subject of legal privacy were produced along with self-disclosures in literary form.
Whose Privacy?
1890: The privacy of the wealthy
1965: The privacy of the married
1973: The privacy of the body
1986: The privacy of the straight
When scholars bemoan the state of privacy law
in the US,they often point to the fact that
the subject of privacy,
the person who is entitled to privacy,
keeps changing.
Nelson's point is not that privacy is dying; her point is that its endlessly continued death suggests that it must be possible to regenerate or reproduce it.

Literature, she argues, has been producing privacy just as fast as its demise can be announced.

In particular, female poets produced a female privacy.
One conclusion is that privacy has just as often been a well of loneliness, as it has been a reservoir of democratic freedoms.
Surveillance and Literature
My thoughts on related matters are published in
Textual Practice
.
Presently, I'm beginning to look at "surveillance." Nobody knows what it is.
Yet there is a very strong tendency in the United States,
and in the literary humanities,
to conflate surveillance with creeping totalitarianism.
I'm writing a book called:
Overhearing American Literature: Surveillance, Democracy, and the State.
A Recent Foray
Rosen and Santesso repudiate the idea that surveillance is social control.

They rewrite the five-hundred year history of liberalism as a joint project of surveillance and literature.

Both, they argue, are ways of knowing, and failing to know, those around us.

The key idea is that literature and surveillance have shared assumptions about how knowable other people are.
In the wake of Edward Snowden, surveillance and privacy law is focusing on the concept of "metadata."
Metadata appears to fall into the category of "envelope information" rather than "content information," and therefore fails the
Katz
"reasonable expectation of privacy" test.
It has been argued, therefore, that the National Security Agency's bulk data collection programs are not importantly different from any previous government actions.
Daniel Solove, however (G.W. Law) has been arguing that the "secrecy" concept of privacy that stands behind the Katz test should not apply to metadata (Solove 2004,2008).
The harms of metadata collection, Solove argues, result not from disclosure, but from aggregation--which produces not information that has not been made public, but which is produced without the knowledge of the subject him or herself.
And despite the ease of making the case, new literature about surveillance does not seem terribly invested in worrying about being the subject of metadata surveillance.
Ridker's anthology of new poetry trades on surveillance paranoia, and the theory that surveillance is social control.

But the contents rarely reflect the marketing.
Instead, many poems specifically contemplate Solove's "digital person"--and not from the point of view of a cowering Winston Smith, but from the viewpoint of the surveilling eye.
Kent Shaw
How The Database Is Powering The New World Economy
...
The other night I had a dream. The dream was a
mountain.
with all the dimensions available to a mountain,
including a full mineral inventory,
cubic allotment of resources, density measurements
and, of course, a cave for birds, at least the birds
that could support the life of a mountain.
The
problem
is a dream should not have its own inventory.
It could have a personality. Or a plan of action.
It could be a mountain.
And a mountain should be darkness. Animate dark and
inanimate darkness.

There is a "problem" here. But it's not totalitarianism.
Tim Siebles
You watch
a starling's
timid quest:
a simple

life afraid only
of the immediate--cars,
cats--having no
reason

to doubt
what it needs, no
lack of faith

in this clear day
and no notion

of who's behind the window
with so much

curiosity. For all
it knows, you are
simply the light

feathering its
small head, but

you wonder
what's inside

the bird, what
makes it fly: what
harmless

instruments
might tell you how
starlings think, why

they don't
see the
Future

nesting everywhere
with sharp, hungry eyes.

For All
Law will help disaggregate
"surveillance" into a
contingent,
and changing,
set of behaviors.
US officials have maintained that
metadata collection is not really surveillance.
The problem seems to be that the poet is thinking like a metadata analyst.
Again, the poem points at the obsessive quality of surveillance, but from the perspective of a metadata analyst trying to predict the "Future" through the use of
"harmless instruments."
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