In the post-9/11 atmosphere of ever-increasing government secrecy and surveillance, the real surprise to me about the Department of Justice’s secret snooping on Associated Press phone records was that it would be such a surprise, given the visibly vast security and intelligence apparatus erected by the U.S. government over the past decade (admirably totted up by Dana Priest and William M. Arkin in the 2010 Washington Post project Top Secret America and criticized by Glenn Greenwald and others).
But the same technological advances that have empowered the rise of Big Brother have created another wrinkle in the story. We might call it the emergence of Little Brother: the ordinary citizen who by chance finds himself in a position to record events of great public import, and to share the results with the rest of us. This has become immeasurably easier and more likely with the near-ubiquitous proliferation of high-quality recording devices. (As I learned after publishing this, the term had been coined earlier, and Cory Doctorow used it in 2007 for his book of the same name.)
The era of Little Brother was perhaps inaugurated in November, 1963, with the Kodachrome II 8-mm. film of John F. Kennedy’s assassination inadvertently captured by the Dallas clothing manufacturer Abraham Zapruder. George Holliday’s videotape of the March, 1991, beating of Rodney King in Los Angeles, and Scott Prouty’s forty-seven-per-cent video, which arguably cost Mitt Romney the Presidency last year, fall into the same class.
There is a surprisingly rich and dynamic academic literature developing around the concept of “sousveillance,” a term coined by the University of Toronto professor and inventor Steve Mann to describe privately made recordings that can serve as a counterweight to institutional and government surveillance. Mann is famous for approaching these questions from the perspective of wearable computing, a field in which he is one of the earliest pioneers; his apparent eccentricity is belied by the gravity and lucidity of his writing, which is heavily influenced by Foucault’s views on panopticism:> One way to challenge and problematize both surveillance and acquiescence to it is to resituate these technologies of control on individuals, offering panoptic technologies to help them observe those in authority. We call this inverse panopticon “sousveillance” from the French words for “sous” (below) and “veiller” to watch.
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A new and notable practitioner of sousveillance emerged last month: the University of Pennsylvania junior Aakash Abbi. On April 22nd, Abbi attended a talk given by the noted Republican pollster and strategist Frank Luntz. The talk was hosted by a campus club, the College Republicans; it was publicized on Facebook, and was open to the public. There were around a hundred people in the audience. After the presentation, there was a Q. & A.: Luntz was asked about our current political polarization, and, according to Mother Jones’s version of events, he “replied that he had something important to say on this matter but was apprehensive about speaking openly; doing so, he explained, could land him in trouble.”
Abbi told me what happened next: “[T]here were some shouts from the crowd, and people wanting [Luntz] to be taken off the record. So he asked any reporters to raise their hands, and there was only one reporter present, a staff reporter from the Daily Pennsylvanian, our school paper; he identified himself, and was asked if he would mind going off the record. He said absolutely not, and he turned off his recording device, and that’s about when I turned mine on.”
Luntz proceeded to speak out against Rush Limbaugh and the right-wing noise machine. “[T]hey get great ratings, and they drive the message, and it’s really problematic. And this is not on the Democratic side. It’s only on the Republican side…[inaudible]. [Democrats have] got every other source of news on their side. And so that is a lot of what’s driving it. If you take—Marco Rubio’s getting his ass kicked. Who’s my Rubio fan here? We talked about it. He’s getting destroyed! By Mark Levin, by Rush Limbaugh, and a few others.”
Abbi made his recording of Luntz available to Mother Jones, and David Corn published it with his comments on April 25th. Luntz’s reaction to the publication of his own words was remarkable. The master of messaging told the Daily Pennsylvanian that he “would never return to speak” at his alma mater after the incident, that he would discourage others from speaking there, and that he would not renew a scholarship established in his father’s name for students to travel to Washington, D.C. (I asked Penn administrators for details about the scholarship—the amount, the number of recipients, etc.—and was told that they “had no information to offer” about it.)
There followed a considerable fracas in the Daily Pennsylvanian, both pro- and anti-Abbi, a bit of which spread to national political blogs. Arielle Klepach, President of the College Republicans, opened the proceedings: “Mr. Abbi’s deplorable actions are an embarrassment to not only our organization, but also our University. While identifying as Republican is no easy feat at Penn, our organization strives to foster an intellectually and politically safe environment for those who do not belong to the overwhelming political majority on this campus.”
Abbi remains convinced he did the right thing by making the tape public. “I have been accused of harming the future of discourse at Penn,” he told me. “If anything, I’d think I would have helped it. Because if [there are] politicians or public figures who don’t want to speak openly, who fear they are at risk if their words are being recorded by people who want to hear them, then good riddance. We don’t need those people at our campus. We need people who are going to advance the discussion.”
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The matter of “off the record” is a tricky one, particularly in the context of politics, as evidenced by the Supreme Court’s 5–4 split decision in the case of Cohen v. Cowles Media Co. (1991). Dan Cohen, a Minnesota Republican associated with the 1982 gubernatorial campaign of Wheelock Whitney, was in possession of mildly damaging information regarding Marlene Johnson, the running mate of Whitney’s opponent, Rudy Perpich. Cohen offered this information to reporters at three newspapers on condition of anonymity. Editors at two of the papers decided to burn their source, and Cohen was fired from his job the next day.
The Court’s decision relied on the doctrine of promissory estoppel, or, in plain English, promise-breaking: the Court’s conservatives held that the promise of “off the record” is a contractual matter of information in exchange for anonymity. On the other side of the question, Justice Harry Blackmun wrote in his dissent that it is a violation of the First Amendment “to penalize the reporting of truthful information regarding a political campaign.”
This 1991 decision essentially means that a promise of “off the record” is legally binding, but it must be entered into by both parties in advance. Presumably, Luntz would have had to secure a separate agreement from each of the attendees at his Penn talk in advance in order to be able to claim he’d been wronged based on a promise of anonymity.
But was it legal for Aakash Abbi to record Frank Luntz without his explicit permission? I asked Max Kennerly, a Philadelphia trial lawyer, about this. He replied:
It’s clear that the “expectation of privacy” would vary a great deal based on circumstances, but the matter of “changing and varied social norms” bears further scrutiny. Is the proliferation of recording devices altering our concept of privacy itself? I asked Abbi, who is a P.P.E. major (Philosophy, Politics, and Economics), whether he thought the “expectation of privacy” had changed in his lifetime. His response was striking:
Kennerly had a different response to the same question:
Let me quote Kozinski at length:
As Big Brother’s threat to our privacy grows ever larger, so does Little Brother’s reach expand, with a defining awareness that public spaces are fair game for all, and a corresponding awareness of what really constitutes, or should constitute, our private spaces and private communications. When we are in the street, we all belong, in some sense, to everyone.
Illustration by Tom Bachtell.