The Interest-Divergence Dilemma Between the Tech Companies and the NSA*

The intensity of the semester has precluded me from writing much on the blog over the last few months. But as the term ends and the winter session begins, I hope to post more frequently here. This post marks the beginning of that aspiration.


As philosopher Robin James has insightfully pointed out last week, “privacy is a red herring,” that is, it is not a relevant consideration in the debate over surveillance and government power. Rather, the real issue is the balance between “security and freedom,” as Obama and DNI Director James Clapper repeat ad nauseum the trite pro-surveillance mantra. Balance, according to James, can be considered either as “the average of two extremes” or it “could mean a dynamically-adjusting continuum (the kind of balancing done, for example, by an audio equalizer or an electrical resistor).” She argues that the discussion over balance is about the latter—how to continually fine-tune the precise resting place between security and freedom.

James’ point is well taken. One of yesterday’s major stories seems to confirm the success of neoliberalism in precisely this vein: Eight top tech companies published an open letter to the POTUS, in which they urge him to limit the state’s surveillance activities because the “balance has tipped.” It’s not clear what the balance is, though here is how they describe it in their letter:

The balance in many countries has tipped too far in favor of the state and away from the rights of the individual – rights that are enshrined in our Constitution. This undermines the freedoms we all cherish. It’s time for a change.

Prima facie, the tech companies are concerned about the encroachment upon individual freedoms, such as privacy.  Coincidentally, such “tipping” dovetails with profit losses for these companies, since as customers continue to hear about how these corporations have turned over supposedly private information to the government (sometimes making even more profit in the mix), they may challenge them by shutting down their Facebook, LinkedIn, and Yahoo accounts (which in turn induces further lost revenue from advertisers). They may engage in some other form of resistance (as encouraged through a neoliberal environment—of relocating their money (and potential corporate profits elsewhere), such as by shifting to non-profit tech organizations or open-source browsers, software, etc. whose primary mission is to protect user privacy. As such, the tech companies’ own “balance” of interests–located between complying with government requests and profiting by (falsely) claiming to protect their customers’ privacy for profit–also tips: in favor of the state.

Elsewhere in their (advertising) campaign to reform government surveillance, they suggest five “principles.” This is the first one:

Governments should codify sensible limitations on their ability to compel service providers to disclose user data that balance their need for the data in limited circumstances, users’ reasonable privacy interests, and the impact on trust in the Internet. In addition, governments should limit surveillance to specific, known users for lawful purposes, and should not undertake bulk data collection of Internet communications.

So, the “balance” that the tech companies suggest is a balance between the government’s “need for data,” “users’ reasonably privacy interests” and “impact on trust in the Internet.”

Funny how the “principle” is rather an exercise in pragmatism: The tech companies don’t disagree that the state “needs” private information. They just insist that the state restrict its demands to that information that falls outside of “users’ reasonably privacy interest.” Presumably, “we” would all be okay if the NSA just collected the data of only those who might be terrorists and threatening American security interests.

Still, on this “principle,” I wonder how the US would distinguish between terrorists and reasonable privacy unless they collected everyone’s data. Doesn’t that bring us full circle back to the premise of all-encompassing surveillance?

I would add that, as the tech letter shows, while the language they resort to is the time-honored liberal discourse between security and freedom, in fact the balance they care about is the balance between corporate profits, government power, and customer complacence. It is not necessarily a problem to tip over from freedom to security, as long as government surveillance doesn’t begin to cause unrest among their customers such that they lose their profit machine.

Presumably “being sensible means not undermining “trust in the Internet,” which makes total sense, when your business profits depend on your customers’ trust in the Internet. So the appeal from the tech companies to the USG, in essence, is to continue their collaboration with the corporations to mine and acquire as much data as possible, but to be less obtrusive, less extreme, less confrontational about it. One way to do so, is to re-institute strict controls on which persons are the focus of data collection.

This is the quintessential neoliberal environment: corporations and the government converge to strip the focus away from rights so as to have better control over individuals. But at the moment that corporate profit is threatened, corporations no longer act in complete concert with the state, but rather each “institution” (the government and corporations) battle each other for control over consumers/citizens.

I think there’s a different (or another) red herring, to borrow from James: It is the red herring of “interests.” In other words, the discourse of interests distracts the “public” conversation from naming several realities (i.e. this is what is NOT printed as part of the official record, as in Reuters or the NYT; it doesn’t mean that many of us don’t see it).

1) It distracts us from being able to identify the struggle over the limits of surveillance as being about the limits of corporate power versus the state’s power and not, as its typically articulated, to protect persons/subjects/consumers/citizens.

2) This struggle is better understood as that between corporate interests for profit and (managing its customers’ behaviors for that purpose) v. government interests to acquire all information as a mode of securing control over subjects and companies.

In other words, the struggle between the tech companies and the government is over managing individual actions en masse, and by extension, its dialectical counterpart: consumers’/subjects’ resistance to being managed.

And this battle reflects the red herring of interests: The discourse of “interests” saturates the public conversation, such that privacy is no longer a relevant question. In fact, the prime concern that governs state actions is “its” own interests. This makes more sense if we revert to the assumption that the state’s interest is in its own survival, not that of its subjects/citizens. The corporations have their own interests in mind is obvious, but their interests are profits as extracted through the control/management of consumers’ actions (such as through Google’s and Facebook’s datacollection methods, which in turn are enhanced by targeting personalized ads at each user, which in turn extracts more information about user behavior.

The issue at stake is not about principles, or ethics, or privacy per se. Rather, the real concern—from the perspective of the tech companies is their profits being lost. That is the tipping point that shifts the balance away from profit in the service of overwhelming government desire to know everything that’s going on.  That interest was okay, so long as the public (customers) didn’t know (or didn’t focus so much on) the fact that their information was being handed over in volume by the tech companies. But when that knowledge threatens to drive away their customer base, then the “balance” qua fine-tuning has been lost.

I think James is right when she questions the relevance of privacy: she and I don’t disagree per se. But my emphasis on “interests” emerges by shifting the analytic:  The language of “interest” distracts us from the question of privacy. In part, this is because the language of privacy reflects an old liberal discourse of principles in relation to the limits of state power. But the discourse of neoliberalism concentrates on interests rather than rights or principles per se.

As such, the political framework changes from individual security to question of “what’s in my interest?” That’s why the common articulation of “disinterest” takes on so much resonance: But if I’m not doing anything wrong, then why should I care?”

The discourse of “interests” has begun to hegemonize the shape of public concerns. Because the language of interests is so commonplace, very few raised an eyebrow when the state appropriates the same language to explain its actions. For example, the US military announced this past weekend that it will no longer communicate information about Guantanamo detainees who are on hunger strike.

Officials have determined that it is no longer in their interest to publicly disclose the information, said Navy Cmdr. John Filostrat, a spokesman for the military’s Joint Task Force Guantanamo.

Filostrat has reported that is more important to worry about the welfare of GiTMO guards (sympathy for whom had to have been enhanced by 60 Minutes’ report inside Camp Delta, which consisted of prisoners yelling, and reports of feces being flung at the guards, among other atrocities), and that of the detainees rather than reporting these strikes.

As the Washington Post reports, of course, the reports on the detainees’ hunger strikes was itself the barometer of the prison. Thus, the absence of information shuts down journalists and human rights advocates, not to mention the public’s, access to this information. But the reason cites was that it was NO LONGER in the interest of the government.

Since when does the interest of the government become an express–and justifiable–factor in which information is publicly reported? It is hard to imagine the state making this the basis of its defense in an earlier era. Arguably, this has been the overwhelming concern for the decade since September 12, 2001, but government policies have always been articulated as having the “interests” of the public in mind: i.e., national security.

The convergence of the language (e.g., of interests) that marks corporate motives and state motives illuminates how the force of biopolitics (or ontopolitics, as I write elsewhere—namely the creation of moral monsters in contrast to good citizens) shifts from one group to another. This is not a question that Michel Foucault answers: how does the focus of biopolitics change from epoch to epoch? Why are some groups persecuted in one moment, but not the next, and how does the focus change? In this moment, as the case of surveillance suggests, it is because the state has taken up the language of interests, as the corporations did already, to manage/discipline their subjects. But, the next chess move is that the corporations have taken up the debate of “freedom/security” in order to battle consumers/subjects’ resistance to being managed or controlled, in order to ensure the corporations’ continued existence and profit-making capacity.

*With a nod to the title of the late Prof. Derrick Bell’s article, “Brown v. Board and the Interest-Convergence Dilemma.”

Homophobic Harassment, Self-Deportation, and Surveillance

The New Yorker ran a thoughtful piece by Ian Parker on the suicide of Tyler Clementi, a gay Rutgers University freshman who committed suicide in the fall of 2010, sometime after he discovered that his roommate, Dharun Ravi, had used a webcam to spy, and invite a public-spy-in, on Clementi’s encounter with a male-lover in their shared dorm-room.  The article, relying on electronic records from emails to tweets, suggests that there may be an ambiguous link between Ravi’s spying and Tyler’s suicide.  It is not clear that the spy-in happened, nor how disturbed Tyler was over the news that he was being spied on, but it was clear that he was aware that his roommate spied on him, however briefly.

Ravi stands on trial for, among other things, invasion of privacy (sex crime) and bias intimidation (hate crime). Regardless of whether Ravi’s actions can be closely traced to Clementi’s suicide, Ravi is—even if his own accounts are to be believed—still culpable for harassment and extreme violation of his roommate’s privacy.

Clementi, who had come out as gay to his parents only three days before he began at Rutgers, doesn’t reveal–in his electronic records–a level of emotional devastation  that might be consistent with his decision to commit suicide. But I can’t help but wonder about the psychic devastation that Clementi felt upon discovering that his intimate relationship was subject to surveillance, public spectators, and public mocking.

A few days ago, I was listening to a story on This American Life (#456, Reap What You Sow) about the concerted campaign to induce undocumented migrants across the country, but especially in Alabama, to self-deport. Reporter Jack Hitt discussed the strategies of Secretary of State of Kansas, Kris Koback, to induce “self-deportation.” Koback is considered the “mastermind” of “attrition through enforcement” throughout the country. Kobach is also the proud creator of the National Security Entry-Exit System (NSEERS), which is based on legal precedents that were used to detain and hold citizens and migrants of Japanese descent during the second World War, among other populations. According to a 2004 report on Special Registration by the Asian-American Legal Defense, through NSEERS, the Bush Administration rounded up over 82,000 Muslim men in the aftermath of the September 11 attacks; over 13,000 were put in deportation proceedings.  After that wildly successful anti-immigration maneuver, Koback turned his crafty mind and overpriced education to other issues:  he has helped author the anti-immigrant legislation in Pennsylvania, Missouri, Texas, Arizona, and Alabama’s HB 56. He so modestly describes himself as helping states “restore the rule of law.”

Two things to keep in mind: first, the restoration of the “rule of law” doesn’t involve punishing Goldman Sachs or Lehman Bros. investment bankers for squandering away the pensions of career pipefitters, teachers, and nurses, nor lobbying President Obama to cut off their “bailout” bonuses. Rather, it involves the creation of laws that pivot on the intersection of citizenship and surveillance. Koback’s contribution here is to centralize surveillance through the checkpoints of immigration and citizenship: For example, through Alabama’s HB 56, proof of legal status is required for all children entering public schools; birth certificates are required in every business transaction with the state; any citizen may challenge private business owners’ hiring practices as illegal according to this law. This law has also induced Alabamians–illegally–to take HB 56 into their own hands, refusing to conduct private business transactions without proof of papers in grocery stores. Employees at several Wal-Mart stores across the state refused to allow one migrant to receive a Moneygram from her mother without proof of legal status, even though such proof was neither part of the law nor store policy. Other migrants were told they wouldn’t be paid for work they had already done, or that they would no longer be allowed to rent their apartment, because these acts would be considered engaging in “illegal contracts.”

One migrant’s daughter was enrolled in a Birmingham, AL public school, where there has already been a conversation about what would happen if their parents are picked up by Immigration and citizenship enforcement (ICE): Their teachers have told them that they would be fine because they were American citizens; needless to say, that conversation terrified those kids even more than they already were.  Moreover, we know, according to ColorLinesShattered Families Report that they will NOT be fine. In fact, the undocumented parents of US born children may very well be rounded up during a routine traffic stop, or a routine grocery store purchase, or during an ICE raid conducted in their place of employment, in which case they will be shuttled off to a detention facility and, chances are, deported before they ever have a chance to make arrangements for their children to be cared for by friends or family or to bring them with them, regardless of whether the parents are deported or released. And of course, children without guardians would be considered “abandoned,” and become wards of the state, ready to be shuttled off to a nice white family in need of a child to adopt.

These laws have created a climate where all brown people, regardless of citizenship and national origin, are acutely aware of being monitored: Women have quit their jobs and children have been taken out of school and kept at home, deprived of the chance of a routine life of education, playing with friends and socializing with family and neighbors.  The climate of “self-deportation,” is in fact a climate of self-monitoring, of the acute awareness that one is always being surveyed, that one’s comportment, behavior, existence is always under acute scrutiny. Your own fellowchurchgoers will refuse to shake your hands during the passing of the peace (16:50)  This is what it means to be an outsider. The law prescribes the attitude that “good law-abiding citizens” should take.

As Hannah Arendt points out in 1958,

The administration considers the law to be powerless because it is by definition separated from its application. The decree, on the other hand, does not exist at all except if and when it is applied; it needs no justification except applicability…People ruled by decree never know what rules them because of the impossibility of understanding decrees in themselves and the carefully organized ignorance of specific circumstances and their practical significance in which all administrators keep their subjects. (Origins of Totalitarianism, 244)

[Arendt has another passage that I can’t find on totalitarianism leaves us constantly vulnerable to criminality because offices and the law we are supposed to obey change constantly; a cookie for anyone who can find it].


Before you respond by insisting that “if they don’t want to live like this, they should just go “home,” do remember: those of us who are members of this blighted polity are also subject to the same scrutiny: As Bill Newman and the Mass ACLU have uncovered, the United States is now populated with Fusion Centers. These are local sites which collect, through the marvel of the 2006 Foreign Intelligence Surveillance Act (which your President Obama returned to DC from the campaign trail in August specifically to vote for), yours and my data: collecting your Weight Watchers food diaries online, crossing tollbooths with your EZ pass, pictures of your license plates in cities where you’re not supposed to be at that hour, your encounters on Craigslist and online porn sites, your telephone calls to your best friend and your shrink, your phone sex sessions with your traveling spouse, scrolling through various religious websites for inspirational lectures, online purchases for medications to relieve the symptoms of embarrassing diseases, email interactions with our lefty or radical or….god forbid, Muslim, students.

These Fusion Centers are regional: they collect data locally and then share it with national FBI data centers—this is, indeed, “the rule of law.” It is done legally. And after all, the difference between what is legal and illegal is inscribed through the stroke of a President’s pen on the signature line of a bill. The difference between what is moral and immoral, between privacy and violation of your most sacred thoughts—those too are established through the votes of your Senators and Congresspersons, as well as through the President’s pen. And don’t you worry—it’s a bipartisan effort: Senators Leahy (VT), Boxer (CA), Di-Fi (CA), Pelosi (CA), Gillenbrand (NY), Cantwell (WA), Kerry (MA), Reed (NV), Udall (UT), and the list goes on and one–all voted for the NDAA. The simpler question is, who didn’t vote for it?

The homophobic harassment of Tyler Clementi by Dharun Ravi was a violation of the sacrosanct right to privacy as deployed by an arrogant, young male migrant upon another young, gay, man. Immaturity, narcissism, bias, and youth all appear to be contributing factors in Ravi’s stupid, selfish act. His actions should at least be scrutinized carefully in a court of law, and condemned regardless of the outcome of the trial.  Still, how interesting that the extreme, systematic, violation of a group of vulnerable migrants through the concerted surveillance and coercion of state legislation is not to subjected to the same condemnation. “Self-deportation,” as Mitt Romney describes it, is considered less “messy” and less “expensive” than having officials track down, arrest, detain, deport, and break up families. There are records, evidence, and perhaps culpability in the latter. Self-deportation expresses a similar dislocation and pain, a similar fear, the same kind of harassment, coerciveness, and systematic psychic violence that a sole individual with a webcam does to another single person. Need I extend the argument to Fusion Centers? The difference, of course, is that the psychic violence is much more detrimental when leveled against groups who are already vulnerable, groups who are Muslim, South Asian, Middle-Eastern, brown, angry, dissenting, racially conspicuous.

As worse is the climate in which we have accommodated ourselves to having our everyday habits, routines, foibles, peculiarities, private habits, dislikes, sexuality subject to scrutiny by a state—by 50 states—by The State—that records, organizes, classifies their findings against us, ready to bring out at a potentially threatening moment (threatening to the state) to use against us.

Arendt again (in 1951):

Rule by decree…is superior simply because it ignores all intermediary stages between issuance and application, and because it prevents political reasoning by the people through the withholding of information.

She refers to the totalitarian state as one in which there is no distinction between public and private: both meld into one, and freedom, public as well as private, is an illusion. There is no home to seek refuge in from the public light of day. Even worse, spontaneity—to laugh, love, inquire, explore—becomes even more rare. One’s every move becomes a defensive calculation against potential violence: should I explore this website? Should I speak out? Should I argue with this administrator? He could turn me in—even falsely—and make my life a living hell. Should I go out to buy groceries this morning? Should I let my child out to play? Can I drive to work today? Psychic violence, violations of intimacies, shredding privacy are equally harmful whether done by one or done by a systematic set of laws, officials, networks, warehouses and databases.

I’ll leave with you a last thought by Arendt:

We are not concerned here with the ultimate consequence of rule by terror—namely, that nobody, not even the executors, can ever be free from fear; in our context we are dealing merely with the arbitrariness by which victims are chosen, for this it is decisive that they are objectively innocent, that they are chosen regardless of why they may or may not have done…
In order to establish a totalitarian regime, terror must be present as an instrument for carrying out a specific ideology; and that ideology must have won the adherence of many, and even a majority, before terror can be stabilized…And an ideology which has to persuade and mobilize people cannot choose its victim arbitrarily. (Arendt, OT, 6-7)