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Louisiana State Univ.

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Monday, October 14, 2013

The Suppression of Speech In the Electronic State

David Barnhizer, Cleveland-Marshall College of Law, has published Through a PRISM Darkly: Surveillance and Speech Suppression in the 'Post-Democracy Electronic State' as Cleveland-Marshall Legal Studies Paper No. 13-258. Here is the abstract.

 

There is no longer an American democracy.  America is changing by the moment into a new political form, the “Post-Democracy Electronic State”.  It has “morphed” into competing fragments operating within the physical territory defined as the United States while tenuously holding on to a few of the basic creeds that represent what we long considered an exceptional political experiment.  That post-Democracy political order paradoxically consists of a combination of fragmented special interests eager to punish anyone that challenges their desires and a central government that is consolidating its power to monitor, control and intimidate its citizens.  This set of anti-democratic actors also includes an insatiable coterie of Big Data information gathering businesses that are functioning as “enablers” by amassing an inconceivable amount of data on Americans and everyone else for that matter.  None of us can claim the quality of original insight achieved by Alexis de Tocqueville in his early 19th Century classic Democracy in America when he observed that the “soft” repression of democracy was unlike that in any other political form.  De Tocqueville explained: “[T]he supreme power [of government] … covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided. . . . Such a power does not destroy . . . but it enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.” The US, the United Kingdom and Western Europe are far along in experiencing a “gentle” drift of the kind Tocqueville describes and are rapidly losing their integrity to the point they are becoming “pretend” democracies.    The technological power of the Internet, and here I am using that term as shorthand for the host of information and communication capabilities that have developed over the past 15 to 20 years, has come on national and global society with such overwhelming speed that a “social tsunami” has swept through our society in ways that have devastated existing institutions and the traditional order.  Linked with the psychological effects of what is certain to be a multi-generational (if mislabeled) “War on Terror” the changes generated by this incredible “event” involve phenomena we are still struggling to understand.  The result is that we have changed overnight from a world in which government and communications media moved at relatively slow speeds with highly controlled access to political decision makers, data sharing and investigation to one in which everyone is endowed with the unprecedented ability to present their views and establish relationships.  Billions of voices resound in an uncontrolled cacophony where 95 percent represent ignorance and malice and perhaps five percent useful insight.  This “new normal” includes the strange effects of Twitter as “instant public opinion poll” for political hacks who will do anything to remain in office.  It can be used to stir up rage and indignation, make absurd accusations and create false impressions of a groundswell of support for the agenda of interest groups that have organized to use the Internet’s capabilities to push for what they want and to punish those who deny their overtures.  The impact on governments and other traditional institutions is profound. What is now occurring is a change in the basic nature of society to the “surveillance state” in which powerful governmental and private actors increasingly keep track of everything we do in the name of national security, social cohesion and consumer preference.  Nor is it solely the fading democracies of the West that are experiencing the angst of uncontrollable communication and all-penetrating surveillance.  China, Russia, Egypt and other Middle Eastern nations are all trying to cope with the fact that they are no longer in control of information and the levers of propaganda.  China has recently arrested its most prominent blogger and enacted harsh criminal laws that impose multi-year prison sentences for spreading rumors through the Internet.  This move has oddly enough been matched by the tiny island republic of Grenada.  The upshot in the West is that there has been a shift in the nature of government from a reasonably representative hybrid form of complex democracy to a strange mixture of George Orwell’s 1984 and Animal Farm along with William Golding’s Lord of the Flies.  Perhaps one of the most ironic features is that as the Internet-based communications systems have come into use over the past two decades they have greatly enhanced the ability for widespread communication among a nation’s citizens.  For the first time in our history we have overcome physical distance and separation to the degree that it is possible to achieve face-to-face interchanges of the kind we always assumed were central to true democracy.  Unfortunately, as is discussed here at some length, the ability to communicate has been overwhelmed by numerous competing factors.  This includes the discovery that we are a somewhat less than admirable species when provided a “voice”.  The Internet has revealed an embarrassingly level of ignorance, an increase in cynicism and distrust that has further weakened our views of others, and the loss of any sense of “civic virtue” or community.   We no longer seek or achieve compromise in the interests of the larger common community because there is none.  The anonymous nature of many of our Internet communications is both cause and effect of the disintegration of community.  Too many people hide behind masks while spewing venom and unfounded claims in a sort of “Urban Legend” syndrome circulated as fact. The cowardice of anonymity is made even worse by the malice underlying much of the commentary as well as the over-hyped sensationalism of our mainstream media and disturbing desire for “fifteen minutes of fame” that characterizes many of our individual messages.  Along with these go abuses of power, illicit and criminal uses of the Internet technology to harm and intimidate, and the inability of governments to know how to draw limits on their desire for information. At this point we do not have the slightest clue about how to deal with the interacting forces of the new and still evolving forms of government and accompanying social order.  One thing that seems clear, however, is that much of it is not a positive evolution.  The paradox is that the emerging system is in the process of becoming increasingly repressive at the same time it has expanded into a profoundly fragmented society.  Each piece, whether representing an economic interest or one of political activism, is committed to relentlessly pursuing its particular agenda.  This paradox disappears when we realize that fragmentation works well for the most powerful central political and economic organizations because it implements a “divide and conquer” strategy in which fragmented groups can always be set against each other while the core “power brokers” continue to consolidate power and reap the rewards of their “game”. The real threat from massive government surveillance of its citizens is psychological.  The apprehension about what they “could” be doing along with who is looking at our profiles intimidates and “dumbs us down”.  We “think” without knowing that the National Security Agency (NSA) is building up something like our High School Permanent Record or even our credit record.  Our “virtual” NSA Record contains potentially bad things about us that we are not allowed to see or rebut, including the opinions of people who may have reasons to criticize us fairly or unfairly.  In relation to that NSA Permanent Record we experience the fear of exposure of things we would prefer to remain hidden.  The fear exists even though we can never be certain of what “They” “know”.  It is as if J. Edgar Hoover and his secret files have suddenly been brought back to life.  Hoover was long thought to retain his enormous power over politicians in Washington due to possession of secret files detailing the “sins” of our leaders.  Now the ability to control all of us by our “sins” if we “get out of line” has been moved to the corridors of the National Security Agency, Homeland Security, Google, Yahoo and Facebook.

 

Download the paper from SSRN at the link.

http://lawprofessors.typepad.com/media_law_prof_blog/2013/10/the-suppression-of-speech-in-the-electronic-state.html

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