From: <kdb17@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Thu, 16 Mar 2006 16:36:17 -0500

CPC, Paper 1: "Of poop and porn: when will I fall outside the circle?"

Kevin Burdette
Computers, Privacy, and the Constitution
Paper 1

The US government’s post-9/11 use of technology to unearth
information about its citizens, from warrantless wiretapping to the
subpoenaing of personal information, forced those citizens to
experience a significant loss of privacy.  The response to that
loss, however, has been somewhat apathetic:  “How does this
affect me – I have nothing to hide.”  The loss of privacy,
therefore, spurred relatively little outrage.  Accompanying the
government’s Bentham-esque panoptical surveillance, however, is
another form of technologically enhanced surveillance, one that
disregards the individual’s perception of what is acceptable, and
one whose danger is perhaps easier to perceive:  public
surveillance and its ever-fickle spectacle justice.

In the summer of 2005, South Korea was struck with “Dog Poop Girl”
fever.  A subway rider with a camera phone caught a woman
neglecting to clean up after her dog.  The photos were distributed
on the internet, and South Koreans, awash in civic fervor, pursued
and judged her relentlessly.  Sure, there was some collateral damage
– women wrongly accused, innocent bystanders stymied (e.g., a school
server crashing because of numerous e-mails demanding the woman be
punished, even though that woman attended a different school);
nevertheless, it seems certain that the perpetrator will think
twice about not curbing her dog next time (or at least about not
checking for cameras before not curbing her dog).

Washington State Senator Pam Roach is more interested in sex than
feces.  Along with supporting and sponsoring bills that make
bestiality a felony and discrimination against homosexuals legal,
Ms. Roach is interested in keeping “sex offenders” in check.  Her
solution:  require every person convicted of a “serious” sex crime
to wear a GPS tracking devise, ideally for the rest of their lives;
that way, in the interest of public safety, anyone can go to a
computer and find out where these offenders are at any time.  The
Massachusetts state legislature likes the idea so much that it is
considering requiring all serious crime offenders to wear a GPS
tracker.

While it seems clear that pedophiles and
people-who-don’t-curb-their-dogs-on-the-subway are safely inside
society’s “deviant” category, questions arise as one approaches the
edges of this category.  How many times a day do I act in a way that
someone with a camera phone might find offensive?  For that matter,
as some states are considering raising the “minor” age to 21 and
others are considering making it a crime to buy pornography that
contains pictures of anyone who simply looks like they could be a
minor, how close am I to wearing the title “sex offender” (and the
accompanying GPS jewelry) for the rest of my life.  Who, finally,
decides if I’m “deviant”?

Emile Durkheim posited that society labels certain groups as
“deviant” in order to strengthen the remainder of that society. 
This labeling occurs particularly in times of rapid social change,
for it is then that a strong social unity is necessary. 
Centralized government in the “Christian West” grew out of such a
time. Between 850 and 1000 CE, after the collapse of the Roman
Empire, Western Europe saw a breakdown of centralized authority,
coupled with a decline in culture and education.  Around 1000 CE,
however, a new stability was created as a centralized authority
began to emerge and a mainstream society established itself.

Around the same time, there was a noted rise in the persecution of
so-called “deviant” groups (e.g., lepers, heretics, and Jews).
These groups were singled out not because of a drastic increase in
their numbers. Rather, they were persecuted because the young
society, and, more importantly, the religious and civic leaders of
that society, had a fear of rapid social change and a desire for a
strong central societal unit.  Thus, this society created a myth,
labeling and declaring certain peoples a threat to society, putting
them into a category, assigning that category "deviant"
characteristics, and persecuting all those who fell therein.  In
short, mainstream society, in order to form a stronger core, drew a
circle around itself and declared those outside the circle
“enemies.”  It then created identities for these enemies, thereby
justifying their place on the outskirts of society.

The treatment of lepers in the 11th century is relatively easy to
summarize and offers clear examples of society’s circle drawing.
After centuries of silence regarding lepers, the 11th century saw
an extraordinary rise in occurrences of leprosy (see footnote). 
Interestingly, however, leprosy, the disease that today
is called “Hansen’s disease,” did not actually exist until around
1150.  Furthermore, even after 1150, the difficulty of diagnosing
leprosy led to the acceptance of a number of far-reaching symptoms
as indicators of leprosy.  The result was that almost anyone in a
community could have been accused of being a leper; diagnoses were
often less clinical than allegorical. The increased attention paid
to leprosy in the 11th century, therefore, was less the result of a
leprosy epidemic than the result of an identity that was created for
lepers, an identity which allowed mainstream society to exclude
those who, by society’s definition, threatened the social structure.

11th century mainstream society’s mentality that gave rise to the
persecution of lepers (among others) led to the subsequent
persecution of other groups (e.g., homosexuals) and, finally, gave
rise to the quintessential incarnation of spectacle justice:  the
witch hunts of Europe and the American colonies.  In today’s
political climate, in which technological advances give rise to
almost instantaneous communication and information dispersal, the
modern day witch hunt is incredibly easy and imminently powerful.

In a justice system that incorporates constitutional norms such as
reasonableness, ripeness, and suppression, the feeling of “how does
this affect me – I have nothing to hide” is understandable.
Spectacle justice, however, knows nothing of reason, timing, or
inadmissible evidence.  Social change comes hand in hand with
shifting definitions of deviance, and loss of privacy through
technological advancements demands that the seemingly un-deviant
remove their heads from the sand to insist on and create advances
in law, technology, and politics that will safeguard the individual
within a spectator’s society.

-Kevin Burdette
(991 words)

footnote:  Sources indicate that in 1023, lepers participated in a
coronation in France.  In 1054, the Bishop of London had to step
down due to leprosy.  A French bishop in 1075 similarly had to step
down after being diagnosed with leprosy.  By the late 11th century,
towns had begun building "leper houses."

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