ADVERTISEMENTS

In many ways, the idea of the all powerful regulatory state has been passing into history. In its place is arising the monitoring state--a political organization whose functioning depends on its ability to observe, and through observation, manage the behavior of the community of its members, all of whom can be expected to behave because they have internalized the idea that they are constantly watched. Thus, modern government is increasingly built on the twin pillars of observation and management. And the critical element of this system is the ability to produce in the inhabitants of the monitored state the idea that they are constantly watched. The goal, of course, is to produce a state of constant self policing, so that even when the observation ceases, the idea of observation is motivation enough. See Michel Foucault, Security, Territory, and Population, in: MICHEL FOUCAULT, ETHICS: SUBJECTIVITY AND TRUTH, (Paul Rabinow, ed., New York: The New Press, 1997:67-71).

This sort of state had been the goal of most totalitarian states especially since the rise of modern democratic theory--power to the people from the French revolution on depended on a power of observation, and by observation control. The goal of constant observation had been close to the heart of most totalitarian states since, tough technology and socio-cultural resistance made its successful implementation difficult, even in the great Nazi and Soviet States of the mid 20th centuries. Ironically enough, it is only in an age of globalization--when political states appear to ave ceded some authority to both transnational and private organizations, that the goal of a self managing state of constant observation might be achieved.

Elsewhere, I have suggested that surveillance represents a complex of assumptions and objectives beyond mere information gathering or observation. Surveillance serves both instrumental and substantive purposes that affect the power relationships among states, economic entities and individuals. It is both technique and the reification of norms shaping the specific character of the gaze. Surveillance is both ministerial?the gathering of information?and administrative?the elaboration of judgments of the importance of the actions of or individuals observed. Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes, 15 Indiana Journal of Global Legal Studies -- (forthcoming 2007).

Surveillance is one of the critical mechanisms of this expansion of private power into what had been an exclusively public sphere. Increasingly, public bodies are requiring, or permitting, private entities to monitor and report on the conduct and activities of a host of actors. It has also come to serve public bodies as a substitute for lawmaking. Surveillance is a flexible engine. It can be used to decide what sorts of facts constitute information, to determine what sorts of information ought to be privileged and which do not matter, to gather that information, to empower people or entities to gather information, to act on the information gathered. In its domestic form it can be used to assign authority over certain types of information to private enterprises and then hold those enterprises to account on the basis of the information gathered. In its transnational form it can be used to construct a set of privileged information that can be gathered and distributed voluntarily by private entities on the basis of systems created and maintained by international public or private organizations as an alternative to formal regulation and to provide a means of harmonizing behavior without law. Together, surveillance in its various forms provides a unifying technique with which governance can be effected across the boundaries of power fractures without challenging formal regulatory power or its limits. Still, its necessary privatization also complicates distinctions between private and public institutions and between assertions of private (market or personal welfare maximizing) and public (regulatory or stakeholder welfare maximization). Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes, 15 Indiana Journal of Global Legal Studies -- (forthcoming 2007).

Consequently, the move toward a state of constant observation may be even more ironic in that it appears that the great democracies of Western Europe may be the first to actually implement the sort of idealized self managing and constantly monitored state as a matter of public law. In a story recently reported in the Daily Mail, Steve Doughty, Big Brother Britain: How much do you earn? Are you gay? Town Hall chiefs have been ordered to find out, Daily Mail, Dec. 20, 2007, it appears that the English will be leading the way to the sort of total information society that people have been anticipating in the West since the start of the current campaigns against Islamic global terror. " Every town hall has been ordered to send out surveys demanding local residents' personal information and opinions. The forms will ask householders to give details of their children, mortgage, ethnic background, religion and sexual orientation. " Big Brother Britain, supra.

The rationale for the program is essentially regulatory. "According to a consultation paper distributed by Communities Secretary Hazel Blears, the justification for the survey is that it will let the Government know if councils are hitting scores of new targets imposed on them in the last six months." Big Brother Britain, supra. It represents a necessary technique for the social engineering represented by the multiple regulations to be managed through this program of observation. But it, more importantly, appears to be a way for the central authorities to monitor the Councils themselves. A hierarchy of surveillance is thus proposed, with the ultimate power--to determine what facts must be gathered, from whom and to what ends--to be preserved to the highest authorities. And it is to be done on the sly. "Ministers have even given instructions that local councils must try to disguise their involvement in the survey to avoid attracting criticism." Big Brother Britain, supra.

The regulatory nature of the questions themselves are evident from the forms they take:

Instead, it solicits information on whether people think local parents are controlling their children's behaviour properly and whether different ethnic communities in the area are getting on with each other. Questions on ethnicity and sexuality are intended to be used in Government initiatives to promote greater numbers of local councillors from minority groups.

Big Brother Britain, supra. The questions themselves suggest the standards of behavior expected. And people might well use the surveys as a measure of the both the "appropriate" universe of responses and consequentially the approved behavior to be followed. The certainty of observation supplies both standard and enforcement. Both aspects of this form of regulatory surveillance can also be gleaned from the context in which information is acquired: "Unlike the ten-yearly national census, it will not be legally compulsory to fill in and return the form. However, those who do not comply are likely to be sent multiple reminders." Id. Observation is constantly reinforced. Even those who fail to respond will be reminded constantly of the techniques of observation. They will understand that though they have not complied, their neighbors likely have, and that cumulatively, community standards and expectations might change to conform to the values expressed in the information gathering devices.

The information gathered will not be monopolized by the state (though the state will certainly use the information--or the power to gather it--for its own regulatory ends). Instead, all information submitted "will not be kept confidential." Big Brother Britain, supra.

Information provided for the new council survey will not be protected by basic confidentiality rules. The Department for Communities and Local Government has told town halls there are no guarantees of privacy and that personal data gathered in the questionnaires can be disclosed to third parties. Although respondents are not asked for their names and addresses on the forms, town halls are likely to keep this information with the completed survey data on their computer systems.

Big Brother Britain, supra. It appears anyone with a power to seek information might well profit from the use of the survey information. That serves to deepen the instinct to comply with the behavior norms privileged by the questions--no one wants to be found out as a non-conformist, the social and economic costs might be too great. As a consequence, the state can just sit back and watch society do its work for it. And indeed, there would be a great temptation not only for stakeholders to acquire the information, but for the great media enterprises--like the Daily Mail and its competitors--to make use of the information as a means of monitoring government and through government, the people). There is nothing more efficient than self implementing systems.

Steve Doughty in his report notes that "Local Government minister John Healey said the New Place Survey "will be a significant tool for councils and local agencies"." Big Brother Britain, supra. That it certainly will. But the way in which that tool will be used is profoundly more significant than is suggested by its appearance. No mere survey, government in Britain is deepening its conversion from a political community that governs through law to one that rules through technique. And in that enterprise, government and other enterprises will share a power to mold their relationships with the most important factor in their respective power, authority and legitimacy--the individual.

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.