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.

Egg-manning: Arguing with the fringes

I've been thinking more about writer Dan Brooks's post about the death of the Straw Man and the rise of the Egg Man. I'm not in love with Brooks's name for this "egg-manning" phenomenon (for one thing, googling it currently yields pictures of Peyton Manning being egged, which I'm not necessarily opposed to, but is indicative of the requirement of lexical singularity in the age of Google). So far, I've only been able to find one other use of it online (by blogger Tim Hall). But as I read more opinion pieces on both mainstream news websites like the New York Times and encounter news via social media (on Facebook and Twitter, where the person sharing the opinion piece is, in effect, endorsing the argument), I keep returning to this concept.

While straw-manning involves making up an imaginary person who holds a view opposed to your own just so that you can refute it, egg-manning involves finding a real person advancing a real view on social media just so that you can refute it. Finding an actual person essentially justifies the necessity of making your argument. There really are people who must be argued against!

Straw-manning involved assuming that someone out there disagrees with your argument. Egg-manning does not assume this, but instead makes another, typically unstated, assumption. The assumption that egg-manners make is that the person making the argument opposed to their own is part of a large, influential group of people, and that the expression of the argument is part of a larger trend. Rarely is any particular opinion held by only one person; you can search for a hashtag or a term or through various interconnected bits of the blogosphere or social news networks and usually find hundreds or maybe thousands of examples of the argument which you wish to argue against.

The next step in the assumption is the implicit or explicit linking of these hundreds or thousands of people actually stating the argument online with a larger mainstream group that, while not actually stating the argument, has stated or acted in such ways that makes it clear that they believe in some of the same things as the group that actually states the argument online. Most often in the U.S., these large mainstream groups are liberals/Democrats or conservatives/Republicans. Sometimes, they're smaller and/or more amorphous groups, like racists, sexists, Tea-Partiers, Social Justice Warriors, fraternity brothers, hipsters, or many other groups that are partially defined by their stated beliefs and actions. The largest, most amorphous group to be argued against in the U.S. right now is The Establishment. Dissimilarities between ideas held by the small group actually stating the argument online and the large group not stating the argument are ignored in favor of whatever they have in common, which, to the egg-manner, represents a coherent ideological framework.

Even if that group of people isn't large right now, it could become large in the future if its ideas are not argued against. Often times, an example from history is provided to show how quickly ideas can spread if they are not forcefully countered with another argument, a time when silence sealed the fate of a people. In the past, small, vocal groups of people got large less-vocal groups to go along with them. This is intended to make it clear that arguing against a dangerous idea is not so much an act of participating in civil discourse (and thus not subject to the informal rules of civil discourse), but a kind of duty, and that to fail to argue against it would constitute negligence of one's duty.

Sometimes, the egg-manners are correct, as many people who assume things tend to be every now and then: a dangerous view that once was fringe becomes mainstream. It can happen quickly with viral spread of ideas through social media. But other times, the egg-manners are incorrect. The view never becomes one held by more than an un-influential, fringe group online. Of course, if you are able to indefinitely postpone the point at which you believe the fringe idea will become mainstream, you can never be proven wrong, but if we were to require that the aforementioned assumptions be tested (which requires setting a finite time frame in which the fringe idea would become mainstream), I think that many assumptions like this would turn out not to be true.

Then there is the possibility of a backfiring effect: that by arguing against the fringe idea, egg-manners give legitimacy to it, thus bringing about its popularity. Not only are egg-manners raising the profile of ideas with which they argue; they are also providing more examples of opposite arguments for the egg-manners on the other side of argument to use in their egg-manning. There's likely an emotional component to the way in which egg-manning fuels that which it seeks to fight: anger from one side fuels anger from the other.

It's unclear whether egg-manners consider their arguments to be "arguments" in the traditional sense - attempts to convince another person of the truth and/or to provide support for a like-minded person who feels alone - or whether they consider them to be acts of self-expression. If it is the former, the egg-manner should care about the impact of the argument. But if it is the latter, being wrong and ineffective may not matter. It's a rhetorical maneuver that continues to interest me. If only it had a better name.

Sports, Controversy, and the Court of Public Opinion in the Digital Age

As a fan of the New England Patriots, I feel compelled to think about (if not to speak about) the current kerfuffle regarding improperly inflated footballs. From what I gather, it is the general consensus that the footballs that the Patriots were playing with were not properly inflated, and that this gives the team an unfair advantage (hence, the existence of official rules regarding the proper inflation of footballs). It is not known (or not agreed upon, anyway) who, if anyone, is responsible for the fact that the footballs were not properly inflated. If the coach or the quarterback were aware of this or caused it, then that would be a big problem for the team. If it was an equipment manager who was responsible for the misdeed, that would be a much smaller problem.

I am well aware of the way in which my fandom biases everything I might think or say on the matter. So it seems uninteresting to offer any opinion regarding the guilt of the parties involved. But the whole incident did cause me to reflect on the nature of controversies and how we, the public, judge whether or not someone is guilty based on information we received through the media. I'll offer three factors which play a role in this process. Note that none of these three factors has anything to do with determining what actually happened. That is, they should not matter, but they do.

1. Having something that is easy to make silly jokes about changes the tenor of the conversation about the controversy. In this case, we have the word "balls" and sentences describing how "balls are perfect". Even if this incident did involve a breach of rules which compromises the integrity of the game (which I would take to be a relatively serious thing), the fact that people keep saying "balls" keeps it from being very serious. Comedians have a field day with it, as does meme culture on the Internet, which tends to silly-fy everything. This got me thinking about news events in general and how the presence of any potentially silly element can change public perception of an issue. Let's say someone tried to assassinate a head of state and the assassin shot him/her in the leg. Now imagine that the assassin shot him/her in the ass. In the first case, the public's discussion would contain little if any humor. In the second case, it would probably contain a lot of humor, leading people to take the whole thing a bit less seriously. I have to wonder how the discussion around something as deadly serious as Eric Garner's homicide would have been different if his name was Ha Ha Clinton-Dix.

2. Breaking the rules matters more when it may have affected the outcome of something. Most people (Pats fan or not) seem to agree that the improper inflation of the footballs did not cause the Patriots to win the game in question (which the Pats won 45-7). I seem to recall reading somewhere that the improperly inflated footballs were swapped out for properly inflated ones at halftime. After halftime, the Pats continued to dominate the other team. The circumstances under which cheating takes place shouldn't matter when judging guilt, but in the court of public opinion, they clearly do. And it certainly matters when you discuss proper punishments. To punish the Patriots by banning them from the Super Bowl would seem a bit much, given the fact that no one argues that they would have achieved that goal regardless of the inflation status of the football. But imagine if the same controversy had occurred in the other conference final playoff game, which went into overtime and hinged on a handful of key plays. Any minor change to the catchability of a football could have easily swayed the outcome of that game. The tenor of the discussion, again, would be more serious if the circumstances were different.

3. We live in an era of amateur forensic detectives. This, to me, is the most interesting thing to reflect on, and to consider how it may apply not only to this incident, but to all kinds of controversies in the era of digital media. My hunch is the increase in the ease with which we can record things and spread them around the world instantly has given people the expectation that if something occurred, they should be able to see visual evidence of it. They should not have to rely on the word of others, or trust in larger organizations, to determine the truth. Consider other recent sports controversies: L.A. Clippers' racist owner Donald Sterling was caught on tape saying racist things; Ray Rice was caught on tape punching his fiance. The presence or absence of this kind of evidence does not determine whether or not someone did something wrong, nor does it necessarily determine whether the person will be punished either by their employer or by the law. It does, however, play a huge role in determining whether the public feels that you are guilty and, again, affects the tenor of the discussion. When visual evidence is absent, as is the case with the Patriots' purposely deflating footballs (at least as of 1/25/15), then people are less willing to assume guilt. This expectation of visual evidence has troubling consequences for victims of domestic violence and sexual assault. By their very nature, these acts occur in private and are not recorded easily (while virtually everything that takes place in public is recorded, whether we like it or not). Our waning trust in authorities coincides with our need (and our ability) to "see for ourselves". We need to at least see the evidence, even if we can't agree on how to interpret it.

We do love a good controversy, and there is clearly an agenda setting effect present in this case, whereby ESPN analysts spend lots of time discussing this aspect of the sport and the Internet follows (though I wonder about the backlash against ESPN's tendency to beat a dead horse, as seemed to happen when Tim Tebow became popular). So it is unlikely that we will stop talking about improperly inflated footballs until after the Super Bowl. But I'm interested to see how the tenor of the discussion plays out.