The Tully Center for Free Speech

Free Speech Zone

Occupy Surveillance

By Kenneth Merrill, February 20, 2012

In the early morning hours of May 31, 2011, as Memorial Day revelers stumbled out of clubs and bars on Miami’s South Beach, Miami Beach police were surrounding an idling car on busy Collins Avenue, guns drawn. As shots rang out Narces Benoit, a bystander who happened to be in the vicinity, did what many tech-savvy citizens drawn to spectacle might, he pulled out his camera phone and started recording. With the suspect down officers turned to Benoit and neutralized the last remaining threat: his camera phone.

According to Benoit, that’s when a police officer grabbed his phone, threw it to the ground and smashed it under his heel — the only objective account of the incident ostensibly gone forever. Yet within a week video of the incident landed on Youtube. Sensing what the officer was after Benoit had just enough time to remove his camera’s memory card before officers snatched the device away.

With the ability to record quality audio and video a standard feature on most new mobile devices, encounters like these are taking place at an increasing rate, forcing citizens, law enforcement, and the courts to reexamine the power embedded in the digital gaze.

These confrontations have played an especially important role in new social movements such as Occupy Wall Street, where protestors have harnessed this power to recalibrate the political discourse, a form of techno-resistance I experienced firsthand when I visited Zuccotti Park last October.

As I talked to protestors and those who “just wanted to see what this Occupy Wall Street thing is all about,” I quickly found myself swept along on a march wending through the streets of lower Manhattan and onto the Brooklyn Bridge, where a legion of police officers were waiting and would eventually arrest nearly 700 protestors.

A strong security presence kept protestors confined to sidewalks along most of the route with uniformed officers stationed every ten feet. At a certain point I noticed an officer filming me as I talked to a group of protestors. My response was to begin photographing the officer using my cell phone and for a moment I found myself in a standoff, our cameras serving as extensions of our respective claims to power.

Though lasting less than a minute, this brief digital stare-down struck me as unique to contemporary social movements and representative of a fundamental shift in the balance of surveillance power.

As it turns out a group of Canadian researchers have been studying this shift and the social and psychological effects of what they call “sousveillance”. Coined by University of Toronto professor Steve Mann the word originates from the French verb “veiller” (to watch) and the prefix “sous” (from below) and is generally used to describe the use of mobile devices to “watch the watchers.”

The term’s socio-political origins can be traced back to French philosopher Michelle Foucault whose famous explication of surveillance (“to watch from above”) in his seminal work Discipline and Punish appropriated Jeremy Bentham’s renderings of the panopticon (see below) – a structure that creates the sensation of being watched – to describe how central authorities maintained control and exerted power in what he saw as a “carceral” surveillance society.

Applying Foucault’s theory to the present day, David Banks of the blog Cyberology argues that sousveillance, or what he calls “the panopticon of the crowds” (as opposed to “the panopticon of the clouds”), has emerged as an opportunity for individuals to mediate and contest the power inherent in surveillance, though he points out that the “panopticon of the clouds” maintains several strategic advantages over the “panopticon of the crowds,” including regulatory control, perceived credibility, and access to capital.

This later advantage became abundantly apparent when days before the Occupy march Wall Street giant JP Morgan Chase gifted the NYPD $4.6 million, including money for 1000 new patrol car laptops and new security monitoring software.

Yet despite these entrenched financial interests protestors, activists, and individuals around the world continue to challenge surveillance by tapping into the culture of peer production.

One product of this culture – what Lawrence Lessig calls “remix culture” — involves layering multiple user-submitted clips to create a single hybrid production shown from several angles. Whether capturing footage of alleged police brutality during a protest or a gaffe by a political candidate, this form of panoramic sousveillance lends credibility to the “panopticon of the crowds” by providing multiple accounts of the same event – a form of political bricolage that is exponentially more influential than a lone clip posted to Youtube.

Take for example a confrontation between police and Occupy protestors that took place on September 24, 2011. When NYPD officers pepper sprayed a group of protestors, the incident was captured by an eyewitness and uploaded to Youtube. After the video went viral NYPD officials released a statement saying that the footage had been “highly edited” and was not an accurate depiction of events.

[youtube]http://www.youtube.com/watch?v=moD2JnGTToA&feature=player_embedded[/youtube]

In response another Youtube user uploaded a video of the same event shot from a different angle, which seemed to corroborate the protestor’s version of events.

[youtube]http://www.youtube.com/watch?v=nMoKsZp5iao&feature=player_embedded[/youtube]

Then on September 25 a separate video was uploaded, this time syncing the two previous accounts, an act of panoramic sousveillance that supported the previous clips.

[youtube]http://www.youtube.com/watch?v=Pf6m_w7K8XM#t=1m19s[/youtube]

Responses to sousveillance from law enforcement have varied. Some local police departments have invested in new technologies for themselves, like small-scale drone aircraft and armored vehicles, a move that James Fallows of The Atlantic refers to as the militarization of local police forces. But others have taken a more direct approach, confiscating individuals’ devices and in some cases arresting those who record police activity. As a result the courts and legal scholars have begun to wrestle with the legal implications of sousveillance, raising important questions about the complex and intertwined nature of privacy and free speech in the digital age.

In the relatively few cases that have been tried before U.S. courts, most have hinged on interpretations of state wiretap statutes and consent provisions. A majority of states, including New York, require only “one-party-consent” for recorded communications (it is worth noting that the majority of these wiretap statutes were written with audio recording in mind).

However, a total of 12 states require “all-party-consent” for recorded conversations, meaning that if you record a police officer (in Illinois for example) without his or her consent the individual recording the official can be arrested and prosecuted.

Further complicating this area of the law are exceptions for media organizations – a slippery slope in light of current debates regarding who is and is not a journalist in today’s media environment – as well as an exception for events that take place in public spaces where “no reasonable expectation of privacy” exists.

This later exception was of paramount concern in Glik v. Cunniffee, a recent decision coming out of the U.S. Court of Appeals for the First Circuit, in which defendants (several Massachusetts police officers) tested Massachusetts’ public space exception clause under the state’s wiretap statute, claiming qualified immunity.

Writing for the court Judge Lipez’s strongly-worded decision concluded that Simon Glik was exercising his First Amendment right to film officers in the Boston Common (a public space she went out of her way to call “the apotheosis of a public forum”) when he was unlawfully arrested by the officers (you can read the whole decision here).

While the decision in Glik was an apparent win for citizen journalists and the “panopticon of the crowds” it is important to remember how power operates outside the courtroom. Where Simon Glik fought back through the legal system most would have succumb to the mere threat of arrest by turning off their cameras and walking away. As such it is increasingly important that anyone calling themselves a citizen journalist become acquainted with their local laws governing newsgathering, speech, and privacy, because as Judge Lipez wrote in Glik, “the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”