My difficulty began to ease only when I discovered the work of Gaston Bachelard, an extraordinary man who had been a postal worker, physicist, philosopher, and ultimately a professor of philosophy at the Sorbonne:
The old house, for those who know how to listen, is a sort of geometry of echoes. The voices of the past do not sound the same in the big room as in the little bed chamber.… Among the most difficult memories, well beyond any geometry that can be drawn, we must recapture the quality of the light; then come the sweet smells that linger in the empty rooms.… 1
One of Bachelard’s works in particular, The Poetics of Space, is instructive as we reckon with the prospects of life in the no-exit shadow of Big Other and its power brokers behind the curtain. In this book Bachelard elaborates his notion of “topoanalysis,” the study of how our deepest relationships to inner self and outer world are formed in our experience of space, specifically the space we call “home”:
The house shelters daydreaming, the house protects the dreamer, the house allows one to dream in peace.… The house is one of the greatest powers of integration for the thoughts, memories, and dreams of mankind.… It is body and soul. It is the human being’s first world. Before he is “cast into the world,”… man is laid in the cradle of the house.… Life begins well, it begins enclosed, protected, all warm in the bosom of the house.… 2
Home is our school of intimacy, where we first learn to be human. Its corners and nooks conceal the sweetness of solitude; its rooms frame our experience of relationship. Its shelter, stability, and security work to concentrate our unique inner sense of self, an identity that imbues our day dreams and night dreams forever. Its hiding places—closets, chests, drawers, locks, and keys—satisfy our need for mystery and independence. Doors—locked, closed, half shut, wide open—trigger our sense of wonder, safety, possibility, and adventure. Bachelard plumbs not only the imagery of the human house but also of nests and shells, the “primal images” of home that convey the absolute “primitiveness” of the need for a safe refuge: “Well-being takes us back to the primitiveness of the refuge. Physically, the creature endowed with a sense of refuge huddles up to itself, takes to cover, hides away, lies snug, concealed… a human being likes to ‘withdraw into his corner’… it gives him physical pleasure to do so.”3
The shelter of home is our original way of living in space, Bachelard discovers, shaping not only the existential counterpoint of “home” and “away” but also many of our most fundamental ways of making sense of experience: house and universe, refuge and world, inside and outside, concrete and abstract, being and nonbeing, this and that, here and elsewhere, narrow and vast, depth and immensity, private and public, intimate and distant, self and other.
Our family instinctively pursued these themes in imagining a new home. When we were finally able to undertake that project, we foraged for durable natural materials: old stone and scarred wooden beams that had weathered the storms of time. We were drawn to old furniture that had already lived many lives composing others’ homes. This is how the walls of the new house came to be massive, nearly a foot deep and packed with insulation. The result is just as we had hoped: a lush and peaceful stillness. We know that nothing guarantees safety and certainty in this world, but we are comforted by the serenity of this home and its layered silences.
The days unfurl now within the embrace of these generous walls, where once again our spirits spread and root. This is how a house becomes a home and a home becomes a sanctuary. I feel this most acutely when I crawl into bed at night. I wait to hear my husband’s breathing in syncopation with the muffled sighs of our beloved dog on the floor beside us as she sprints through her ecstatic dreams. I sense beyond to the dense envelope of our bedroom walls and listen to their lullaby of seclusion.
According to Big Other’s architects, these walls must come down. There can be no refuge. The primal yen for nests and shells is kicked aside like so much detritus from a fusty human time. With Big Other, the universe takes up residence in our walls, no longer the sentinels of sanctuary. Now they are simply the coordinates for “smart” thermostats, security cameras, speakers, and light switches that extract and render our experience in order to actuate our behavior.
That our walls are dense and deep is of no importance now because the boundaries that define the very experience of home are to be erased. There can be no corners in which to curl up and taste the pleasures of solitary inwardness. There can be no secret hiding places because there can be no secrets. Big Other swallows refuge whole, along with the categories of understanding that originate in its elemental oppositions: house and universe, depth and immensity. Those ageless polarities in which we discover and elaborate our sense of self are casually eviscerated as immensity installs itself in my refrigerator, the world chatters in my toothbrush, elsewhere stands watch over my bloodstream, and the garden breeze stirs the chimes draped from the willow tree only to be broadcast across the planet. The locks? They have vanished. The doors? They are open.
In the march of institutional interests intent on implementing Big Other, the very first citadel to fall is the most ancient: the principle of sanctuary. The sanctuary privilege has stood as an antidote to power since the beginning of the human story. Even in ancient societies where tyranny prevailed, the right of sanctuary stood as a fail-safe. There was an exit from totalizing power, and that exit was the entrance to a sanctuary in the form of a city, a community, or a temple.4 By the time of the Greeks, sanctuaries were sacred sites built across the ancient Greek world and consecrated to the purposes of asylum and religious sacrifice. The Greek word asylon means “unplunderable” and founds the notion of a sanctuary as an inviolable space.5 The right of asylum survived into the eighteenth century in many parts of Europe, attached to holy sites, churches, and monasteries. The demise of the sanctuary privilege was not a repudiation but rather a reflection of social evolution and the firm establishment of the rule of law. One historian summarized this transformation: “justice as sanctuary.”6
In the modern era the sacredness, inviolability, and reverence that once attached to the law of asylum reemerged in constitutional protections and declarations of inalienable rights. English common law retained the idea of the castle as an inviolable fortress and translated that to the broader notion of “home,” a sanctuary free from arbitrary intrusion: unplunderable. The long thread of the sanctuary privilege reappeared in US jurisprudence. Writing in 1995, legal scholar Linda McClain argued that the equation of home with sanctuary has depended less on the sanctity of property rights than on a commitment to the “privacies of life.” As she observed, “There is a strong theme of a proper realm of inaccessibility or secrecy with respect to the world at large as well as a recognition of the important social dimension of such protected inner space.…”7
The same themes appear from the perspective of psychology. Those who would eviscerate sanctuary are keen to take the offensive, putting us off guard with the guilt-inducing question “What have you got to hide?” But as we have seen, the crucial developmental challenges of the self-other balance cannot be negotiated adequately without the sanctity of “disconnected” time and space for the ripening of inward awareness and the possibility of reflexivity: reflection on and by oneself. The real psychological truth is this: If you’ve got nothing to hide, you are nothing.
One empirical study makes the point. In “Psychological Functions of Privacy,” Darhl Pedersen defines privacy as a “boundary control process” that invokes the decision rights associated with “restricting and seeking interaction.”8 Pedersen’s research identifies six categories of privacy behaviors: solitude, isolation, anonymity, reserve, intimacy with friends, and intimacy with family. His study shows that these varied behaviors accomplish a rich array of complex psychological “privacy functions” considered salient for psychological health and developmental success: contemplation, autonomy, rejuvenation, confiding, freedom, creativity, recovery, catharsis, and concealment. These are experiences without which
we can neither flourish nor usefully contribute to our families, communities, and society.
As the digital era intensifies and surveillance capitalism spreads, the centuries-old solution of “justice as sanctuary” no longer holds. Big Other outruns society and law in a self-authorized destruction of the right to sanctuary as it overwhelms considerations of justice with its tactical mastery of shock and awe. The facts of surveillance capitalism’s dominance of the division of learning, the unrepentant momentum of its dispossession cycle, the institutionalization of its means of behavior modification, the convergence of these with the requirements of social participation, and the manufacture of prediction products for trade in behavioral futures markets are de facto evidence of a new condition that has not been tamed by law. The remainder of this chapter explores the implications of this failure. What will taming require? What kind of life is left to us if taming fails?
II. Justice at the New Frontier of Power
If sanctuary is to be preserved, synthetic declarations are required: alternative pathways that lead to a human future. It’s the wall, not the tunnels, that requires our attention. So far US privacy laws have failed to keep pace with the march of instrumentarianism. Analyses of the “invasion of privacy,” according to legal scholar Anita Allen, fall into “a handful of easily illustrated categories.” Allen contrasts “physical privacy” (sometimes called “spatial privacy”) with “informational privacy.” She observes that physical privacy is violated “when a person’s efforts to seclude or conceal himself or herself are frustrated.” Information privacy is disturbed “when data, facts, or conversations that a person wishes to secret or anonymize are nonetheless acquired or disclosed.”9
In the era of Big Other, though, these categories bend and break. Physical places, including our homes, are increasingly saturated with informational violations as our lives are rendered as behavior and expropriated as surplus. In some cases we inflict this on ourselves, typically because we do not grasp the backstage operations and their full implications. Other violations are simply imposed upon us, as in the case of the talking doll, the listening TV, the hundreds of apps programmed for secret rendition, and so on. We have surveyed many of the objects and processes already earmarked to be smart, sensate, actuating, connected, and internet-enabled by surveillance capital. By the time you read these pages, there will be more, and more after that. It’s the sorcerer’s apprentice cursed with the perpetual filling and refilling driven by an unbounded claim that asserts its right to everything.
When US scholars and jurists assess the ways in which digital capabilities challenge existing law, the focus is on Fourth Amendment doctrine as it circumscribes the relationship between individuals and the state. It is of course vital that Fourth Amendment protections catch up to the twenty-first century by protecting us from search and seizure of our information in ways that reflect contemporary realities of data production.10 The problem is that even expanded protections from the state do not shield us from the assault on sanctuary wrought by instrumentarian power and animated by surveillance capitalism’s economic imperatives.11 The Fourth Amendment as currently construed does not help us here. There is no sorcerer in sight ready to command the surveillance capitalists, in Goethe’s words, “Corner broom! Hear your doom.”
Legal scholarship is just beginning to reckon with these facts. As a 2016 article on the “internet of things” by Fourth Amendment scholar Andrew Guthrie Ferguson concludes, “If billions of sensors filled with personal data fall outside of Fourth Amendment protections, a large-scale surveillance network will exist without constitutional limits.”12 As we have seen, it already does. Dutch scholars make a similar case for the inadequacy of Dutch law as it falls behind Big Other, no longer able to effectively assert the sanctity of the home from the invasive action of either industry or the state: “The walls no longer shield the individual effectively from the outside in the pursuing of… personal life without intrusion.…”13
Many hopes today are pinned on the new body of EU regulation known as the General Data Protection Regulation (GDPR), which became enforceable in May 2018. The EU approach fundamentally differs from that of the US in that companies must justify their data activities within the GDPR’s regulatory framework. The regulations introduce several key new substantive and procedural features, including a requirement to notify people when personal data is breached, a high threshold for the definition of “consent” that puts limits on a company’s reliance on this tactic to approve personal data use, a prohibition on making personal information public by default, a requirement to use privacy by design when building systems, a right to erasure of data, and expanded protections against decision making authored by automated systems that imposes “consequential” effects on a person’s life.14 The new regulatory framework also imposes substantial fines for violations, which will rise to a possible 4 percent of a company’s global revenue, and it allows for class-action lawsuits in which users can combine to assert their rights to privacy and data protection.15
These are vital and necessary accomplishments, and the question that is most important to our story is whether this new regulatory regime can be a springboard to challenging the legitimacy of surveillance capitalism and ultimately vanquishing its instrumentarian power. In time, the world will learn if the GDPR can move out in front of Big Other, reasserting a division of learning aligned with the values and aspirations of a democratic society. Such a victory would depend upon society’s rejection of markets based on the dispossession of human experience as a means to the prediction and control of human behavior for others’ profit.
Scholars and specialists debate the implications of the sweeping new regulations, some arguing the inevitability of decisive change and others arguing the likelihood of continuity over dramatic reversals of practice.16 There are some things that we do know, however. Individuals each wrestling with the myriad complexities of their own data protection will be no match for surveillance capitalism’s staggering asymmetries of knowledge and power. If the past two decades have taught us anything, it is that the individual alone cannot bear the burden of this fight at the new frontier of power.
This theme is illustrated in the odyssey of Belgian mathematician and data protection activist Paul-Olivier Dehaye, who in December 2016 initiated a request for his personal data collected through Facebook’s Custom Audiences and tracking Pixel tools, which would reveal the web pages where Facebook had tracked him. Dehaye probably knew more about the rogue data operations of Cambridge Analytica than anyone in the world, outside of its own staff and masterminds. His aim was a bottom-up investigative approach to uncover the secrets of its illegitimate means of political behavior modification.
A first step was to determine what Facebook knew about him, especially the kind of data that would become relevant in an electoral context and thus make him, and others, vulnerable to the kinds of hidden maneuvers that Cambridge Analytica had employed. Dehaye wanted to understand how a citizen might come to ascertain the data that enabled, judging from the worldwide outrage over the revelations of secret online political manipulation, what many people consider a highly “consequential” threat. He carefully documented the twists and turns of his journey, hoping that his experience would be useful for journalists, citizens, and communities determined to understand the scope and political vulnerabilities of Facebook’s practices. Dehaye writes:
It is of course extremely difficult to talk to a company like Facebook as an individual, so by April 2017 I had to escalate the matter to the Irish Data Protection Commissioner. By October 2017, after a lot of prodding, the Irish Data Protection Commissioner finally agreed to take the first step with my complaint, and ask Facebook for a comment. By December 2017, they had apparently received a response, but as of March 2018 they are still “assessing” it, despite frequent reminders. It is very hard not to see a problem here with respect to enforcement.17
In March 2018, fifteen months after his initial request, Dehaye finally received
an e-mail from Facebook’s Privacy Operations Team. He was told that the information he sought “is not available through our self-service tools” but is stored in “Hive,” Facebook’s “log storage area,” where it is retained for “data analytics” and maintained as separate from “the data bases that power the Facebook site.” The company insisted that accessing the data required it to surmount “huge technical challenges.” “This data,” the company writes, “is also not used to directly serve the live Facebook website which users experience.”18
In our language, the information that Dehaye sought required access to the “shadow text,” specifically asking for, among other things, details on the targeting analyses that determined the ads he was shown on Facebook. The corporation’s response indicates that Hive’s data are part of this exclusive “second text,” in which behavioral surplus is queued up for manufacture into predictions products.19 This process is completely separate from the “first text,” “which users experience.”
The Age of Surveillance Capitalism Page 59
