Recording each other for justice

Each Saturday, a recurring conflict takes place outside of an abortion clinic, a conflict that sheds light on how media technologies raise questions about the ethics of surveillance and privacy. It's a good example of how these issues are not just about how governments and corporations monitor citizens and consumers, but how these questions arise from interactions among citizens. My understanding of precisely what occurs around the abortion clinic is based on anecdotal evidence, so take everything in this entry with a grain of salt. This is one of those phenomena that I'd love to devote more time to understanding, if only I had the time. There is a compelling ethnography waiting to be written about it, one that would be particularly relevant to communication law scholars.

The space outside the clinic is occupied by two groups: protesters seeking to persuade individuals entering the clinic not to get abortions, and a group of people (hereafter referred to as "defenders") seeking to protect or buffer individuals entering the clinic from harassment from the protesters. This particular arrangement of individuals could have occurred long before the advent of digital networked technologies. What I'm interested in is what happens when you add those tools to the mix.

Protesters are often seen using their phones to take pictures of defenders and the license plates of defenders' cars. Protesters are, by law (at least as far as I know), permitted to do this. Both the protesters and defenders occupy a public space, or at least a space that is not "private" in the sense that one's home is private. Protesters are not, as I understand it, allowed to take pictures of individuals entering the clinic, as this would violate their rights to privacy as patients of the clinic. Even though they are not yet inside the clinic, if they are on the clinic's property and they are patients, their rights to privacy extend to the area around the clinic. If defenders believe that protesters are engaging in unlawful picture-taking, the defenders will use their phones to video record the protesters taking pictures.

Predictably, tempers occasionally flare, voices are raised, people get in each others' faces, and when behavior that approaches the legal definition of harassment or assault occurs, everyone starts recording everything with their phones. The image of extremely worked-up people wielding cameras as one would wield a weapon, recording each other recording each other in a kind of infinite regress of surveillance, strikes me as ludicrous, partly because the act of recording someone with your phone makes you appear passive, somewhat nerdy, and almost...dainty.

What is the point of all this recording? In most cases, the intention seems to be to catch others in an act of law-breaking, to create a record of evidence to turn over to the police that could be admissible in a court of law. But in other cases (e.g., the protester's pictures of defenders' license plates), the intent seems to have little to do with the actual law. The police would have little interest in the license plate numbers of law-abiding citizens. So, why are they doing this, and what happens to these pictures?

Enter social networking sites (SNS). The pictures, as I understand it, are subsequently uploaded to a SNS group page which contains a collection of pictures of defenders and their license plates. It is possible for SNS users to make such groups "secret" and/or invitation-only, so that the groups could not be found by those in the pictures. My understanding is that this leads to those who are in the pictures disguising their identities online so as to infiltrate the secret groups, acting as moles.

But what is the point of developing these online inventories of people who are defenders or protesters or, for that matter, publicly state any particular belief? Is all of this just an intimidation technique? And if so, is it effective? Is there a kind of panoptic logic at work here, in which the fear comes from not knowing precisely who will see those pictures and in what context they will be seen (e.g., by a would-be employer 20 years from now)? Are they using the pictures as part of a concrete plan to take action against the individuals in the pictures, or is it not that well thought-out? Do people taking pictures and amassing inventories like this do so because they imagine that someday, the law will change, or collective sentiment will change, at which point it will becoming damning evidence that one was affiliated with a group that is then seen as abhorrent? Is it akin to a German taking a picture of a Nazi sympathizer in 1939, banking on the fact that while being a Nazi at that time was socially acceptable, it would not be so for long, and that when it became unacceptable, the picture could be used to discredit or blackmail the person?

I don't think this phenomenon is relegated to protesters or defenders of abortion. I often think of it in a much more benign context: traffic violations. Let's say I were to record individuals making illegal U turns (or not using their fricking blinkers). The police may not be interested in my small-stakes vigilantism, but what if I were to start to amass an online inventory that included recordings of lousy drivers caught in the act, and the database included their license plates and pictures of their faces. The judgment here isn't taking place in a court of law. It's a kind of public shaming via peer-to-peer surveillance.

Aside from questions of motivation, the phenomenon raises questions of legality and ethics. It's my understanding that it is okay to take pictures of other individuals in public places, and/or their cars and license plates, and post those pictures online as long as the individuals and cars were in public. Perhaps at some point, were someone to take thousands of pictures of someone leaving their office everyday, it becomes an illegal activity (stalking), but I imagine the line to be blurry (are two pictures okay? Is it only not okay when you've been told to stop?). But what if you only take a single picture of an individual in public, and that individual isn't breaking the law, but you put that picture together with pictures of many other people engaged in a similar activity in an effort to publicly shame them or intimidate them? That seems illegal, but how do you prove what the effort or intention really was? Would it qualify as defamation?

Maybe it hinges on whether or not someone is a public figure. If a protester was quoted in a newspaper or their picture was on the front page of the New York Times, then this seems like fair game. The individual in the paper might suffer negative consequences as a result of being widely known for his quote and his behavior, but what are we supposed to do, not allow the press to depict protesters? What if a blog quoted a protester and featured a picture of him? Functionally, the blog isn't much different than the newspaper, and the lines between the two are blurry. The case of the protester quoted in the New York Times is realistic but rare, whereas there will likely be a great many quotes and pictures on SNS of people stating all sorts of beliefs and doing all sorts of things that may be worthy of judgment to some people at some time.

Even if we decide it fits into a certain legal or ethical category, this may not matter if the behavior remains secret, if technology enables it but doesn't bring it to the surface (i.e., the problem of policing secret inventories).

One possibility is that the law has simply been outstripped by technology. In place of the law, people respond to unethical uses of technology with, you guessed it, more technology. In this case, technology developers make it harder to take surreptitious pictures of people by making it difficult to turn the camera shutter sound off on camera phones. Other tech developers have engineered clothing that reflects light back at cameras in such a way that renders their images invisible. It could be argued that we have been living in a world in which every step of the justice system now functions through technology outside of traditional channels of justice administration, and that the best thing we can do is acknowledge that reality and consider how best to create an ethical world given the imperfect state of things, at least for the foreseeable future.