The following section takes a condensed look at some of the historical foundations of surveillance and resistance to surveillance. For reasons of space and a lack of research into these matters on a truly global scale this section will focus on three historical phenomena/periods in the Western world, namely the American Revolution, chattel slavery and the following era of racial discrimination against Blacks, as well the in many ways remarkable resistance against early forms of surveillance and population control in West Germany and the Netherlands in the 1970s and 1980s. This is of course a random selection and I am aware of the legitimate concern that it may be highly problematic to compare occurrences of surveillance across continents and time periods while also leaving out developments in other parts of the world, namely the 'Global South'. David Murakami Wood has stressed the “immense cultural and geographic variety of
surveillance societies both in historic and contemporary contexts,”263 that is the result of different cultural perceptions of deviance and delinquency. However, as will be shown, my overall analysis can benefit from a closer look at these three, well-documented historical examples of surveillance and resistance. Not only have these periods arguably contributed to the production of archetypes of resistance to surveillance that are visible to this day, but it is also illuminating to look at the ways earlier victims of surveillance framed their resistance. In fact, as will be shown in the case studies section, post-Snowden privacy activists have explicitly and constantly referenced the very same historical events to foster opposition to modern day surveillance. In this way this section seeks not only to give a short, if uncomplete, overview about the history of surveillance resistance but is also designed to help readers to better understand the historically informed contemporary anti-surveillance frames described and analyzed in the subsequent chapters.
There is no clear scholarly consensus as to when the history of privacy actually starts.
261 Grenville, “Shunning Surveillance,” 71. 262 Cf. ibid., 80.
263 David Murakami Wood, “’The 'Surveillance Society': Questions of History, Place and Culture.” European Journal
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While the term 'Privacy' is relatively new, privacy as a concept is first mentioned in the Bible, which introduced concepts of taboo and shame resulting from a lack of privacy.264 As a political- theoretic concept it is first mentioned by Aristotle, when he made the distinction between private (oikos) and public (polis).265 And as a legal concept it was developed by chief justice Thomas Cooley of the Michigan Supreme Court and in 1880 picked up by Supreme Court Justices Louis Brandeis and Samuel Warrens concept of “The Right to Privacy”, “that gives an individual the power to control absolutely the limits of publicity about him- or herself.”266 However, how the concept of privacy developed in other parts of the world other than Europe and the United States is much less clear. Other scholars focusing on other regions of the world have pointed out that the idea of privacy is a relatively new one. For example Stott Despoja notes that even in a highly industrialized country as Australia privacy as a notion and a law did not exist until the late 1960s; only international pressure from OECD member states finally brought privacy legislation to the country in the 1980s – enhanced by fierce public resistance to the introduction of an electronic identification card.267
However, even though historians have often noted, that in before the 19th century, there was no bodily privacy in everyday life,268 it is common-sense to assume that privacy is valued across cultures, species and times. As Wagner DeCew notes, the universal character of 'privacy' when it comes to the “concealment of the female genitals, seclusion at moments of birth and death, the preference for intimacy for sexual relations (…), restricted rules of entry into homes by nonresidents, and the secrecy of group ceremonies.”269 While it is true that in England, in the 500-year Pre-Tudor period, arbitrary search, seize, and arrest practices were generally accepted, it was only because they affected a very small number of citizens. However, when in the late 13th
264 Cf. Judith Wagner DeCew, In Pursuit of Privacy: Law, Ethics, and the Rise of Technology (Ithaca and London: Cornell University Press, 1997), 11.
265 Ibid., 9.
266 As quoted by ibid., 16. It has to be noted, however, that despite Brandeis' and Warren's influential article by the 1960s modern privacy laws – aside from the Fourth Amendment – were still in their infancy. Only after Griswold vs. Connecticut , (and Katz v. US see Devolution of Privacy 70 as well as Roe v. Wade, see also The Necessity of Privacy) which stated that the use of birth control was protected by the U.S. constitution, law professors began to admit that “[a]wkward as it may be as a tool for legal analysis, privacy is infiltrating the law and must be
reckoned with.” Clark C. Havighurst, “Foreword,” in Law and Contemporary Problems 31 (2) (1966), 251. 267 Cf. Natasha Stott Despoja, “A Brief Look at the History of Privacy,” in Australian Quarterly, 79. (3) (2007)
(Australian Institute of Policy & Science 75th year Commemorative Issue), 60.
268 See for example Judith Flanders, The Making of Home: The 500-Year Story of How Our Houses Became Our
Homes (New York: Thomas Dunne Books, 2014), 68.
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century authorities began to assign guards and other persons with policing powers and the right to search suspected individuals in their homes, Englishmen began to protest.270
Four centuries later in the American colonies suspicionless search and seizure practices would evolve into sophisticated surveillance regimes that ultimately contributed to the triggering of the American Revolution. Ironically, as the first settlers on the continent, Puritans had escaped Europe because of religious persecution and surveillance271 but upon arrival almost immediately established a “surveillance society”272 themselves. Due to the relatively small size of New England communities surveilling each other to minimize criminal activities quickly transformed into an instrument to suppress outsiders and ethnic minorities.273 Religion played a role in both fostering surveillance and the need for privacy. Puritans had to confess in public but at the same time wanted to be alone to pray. Resistance was more subtle and unorganized. For example, laws designed to prevent people from living alone were widely ignored274
The greatest challenge to the colonists' privacy, however, arrived in the mid-18th century. Because the British Crown was in desperate need for money to finance the French and Indian War, starting in 1755, British soldiers – backed by so unlimited and unregulated search warrants called 'writs of assistance' – began arbitrarily searching businesses and homes to collect taxes. The issue of taxation, generally considered to have caused the American Revolution, was thus connected to privacy breaches.275 Frederick Lane has noted how closely the idea of privacy was related to the eventual establishment of the first democracy in modernity: “Concern over the privacy of personal communication was hardly the only issue that drove American colonists to rebellion (…). But privacy in general, as critical component of human freedom, was reflected in virtually every complaint levied by the colonists against King George III in their Declaration of Independence.”276 According to Thomas H. Clancy, in 1761, the suspicionless search practices were for the first time publicly questioned – personified by the Patriot lawyer James Otis, who
270 Cf. William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning , 602-1791 (New York: Oxford University Press, 2009), 27-30.
271 Frederick S. Lane, American Privacy. The 400-Year History of Our Most Contested Right (Boston: Beacon Press, 2009), 3.
272 David H. Flaherty, “Visions of Privacy: Past, Present, and Future,” in Visions of Privacy: Policy Choices for the
Digital Age, ed. Colin J. Bennet and Rebecca Grant (Toronto: University of Toronto Press, 1999), 19-38.
273 David H. Flaherty, “Crime and Social Control in Provincial Massachusetts,” in The Historical Journal 24 (1981) 339-360, 348.
274 Flaherty, “Visions of Privacy,” 21. 275 Lane, American Privacy, 10. 276 Ibid., 3.
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defended Boston merchants opposing writs of assistance277 and who also coined the catchphrase “Taxation without representation is Tyranny” that would become the battle cry of the Revolution.
Quickly, the colonists began to equate the surveillance tactics employed by the British with the total absence of political freedoms. As Andrew Taslitz points out, the “dispute over search and seizure policy was thus at the very heart of the passions and political theory motivating the Revolution.”278 Violently entering the homes of colonists to collect taxes was not merely a nuisance but resembled the very same 'Tyranny' their forefathers had escaped centuries earlier. As William Cuddihy puts it, the American public “associated the general warrant with violent British efforts to subjugate them politically.”279 After the Revolutionary War the Founding Fathers included protections against the search and seizure practices in the form of the Fourth Amendment in the Bill of Rights.280 Although 'Privacy' was never explicitly mentioned by the Colonists nor can be found in the Constitution,281 the Fourth Amendment was ratified in 1791 and has served as the basis for most privacy claims ever since.282 By winning Independence and adapting the Fourth Amendment, the patriots had finally rid themselves of the 'Slavery'283 – in the sense of the total absence of political freedoms – that the tax surveillance of the British had posed onto them.
Of course arbitrary searches and seizures – along with a new arsenal of dehumanizing surveillance techniques – were and remained part of the American experience in the era of antebellum era and beyond. In fact slavery – the involuntary servitude variety, not merely British oppression – in the American Colonies relied in principle heavily on the same measures.284 Only
277 Cf. Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation (Durham: Carolina Academic Press, 2nd ed., 2014), 47.
278 Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868 (New York and London: New York University Press, 2006), 5.
279 Cuddihy, The Fourth Amendment, 569.
280 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” As quoted by the Bill of Rights Institute, “Bill of Rights of the United States of America 1791,” (accessed September 29, 2015). https://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.
281 Cf. Lane, American Privacy, 15.
282 See section 4.1 for an analysis of the first organized activist response to the Snowden leaks, aptly titled “Restore the Fourth.” For the ongoing importance of the Fourth Amendment in the wake of 9/11 cf. Nadine Strossen, “Post-9/11 Government Surveillance, Suppression and Secrecy,” in Privacy, Security and Accountability: Ethics,
Law and Policy, ed. Adam D. Moore, 225-227.
283 Taslitz, Reconstructing the Fourth Amendment, 5. 284 Ibid., 12.
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within the last decades have scholars begun to analyze the daily ordeal of African slaves through a particular lens of Surveillance Studies. In order to control the slave population and enhance its 'productivity' and obedience, “the master class was forced to develop not just methods of terror but also a haphazard system of identification and surveillance. The result was in many ways the earliest imprint of modern everyday surveillance.”285 As Simone Brown points out, the slave ships of the Middle Passage were functional predecessors to Jeremy Bentham’s famous panoptic prison designs.286 Slaver's vessels, auction blocks and plantations were specifically designed spaces to monitor the 'chattel' and suppress rebellions. Surveillance technologies of the time included slave passes required to be carried around when leaving the plantations, overseers and slave patrols whose job it was to watch slaves in the field and capture runaways, and wanted posters and newspaper advertisements designed to identify slaves on the run.287 According to Christan Parenti these means of control “fed into the development of modern technologies of identification and registration.”288 For example the metal tag that each slave, whose status allowed him to temporarily leave his plantation, had to wear, can be seen as the first iterance of numbered identification cards in America.
However, even within this “surveillance regime of slavery”289 there was room for resistance, including escape, killing the masters, or stealing goods.290 On the highly surveilled naval vessels, slaves would stop eating, killing themselves, or attempting to collectively sink the ship.291 On the Underground Railroad, abolitionist would countersurveil the activities of slave patrols to ensure free passage for runaway slaves.292 Just as the modes of antebellum slavery were the blueprint for current forms of surveillance, the resistance laid the groundwork for modern ways of subverting the gaze of authorities. For example, Parenti has described the slaves who frequently manipulated of their identification passes as “antebellum hacker[s]” and “information
285 Christian Parenti, The Soft Cage: Surveillance in America: From Slave Passes to the War on Terror (New York: Basic Books, 2003), 14.
286 Cf. Simone Browne, Dark Matters: On the Surveillance of Blackness (Durham and London: Duke University Press, 2015), 42.
287 Cf. Parenti, The Soft Cage, 15. 288 Ibid., 31.
289 Ibid.. 290 Cf ibid., 16.
291 Cf. Browne, Dark Matters, 48.
292 Toni Weller, “The Information State: An Historical Perspective on Surveillance,” in Routledge Handbook of
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outlaw[s] who could crack the code of the planters' security system.”293 Besides individual acts of resistance the issue of slavery and racialized surveillance led to a growing abolitionist movement – one of the first instances of a transnational advocacy network294 – and the Civil War. But once slavery was outlawed with the passing of the 13th amendment,295 the southern states quickly put subtler surveillance regimes in effect designed to make African Americans 'stay in their place'. The plantations of the antebellum years were eventually replaced by heavily surveilled 'white controlled spaces'.296 In the roughly 150 years that followed the U.S. government surveillance of racialized others continued – from the secret COINTELPRO program that monitored the activities of civil rights activists including virtually all black student leaders to the recent, heavily surveilled Black Lives Matter movement.297 Frederick Lane has noted that “[a]t its core, the history of America is the history of the right to privacy.”298 While the surveillance of colonists by the British and the surveillance of slaves and black citizens represent different historical and structural modes of controlling populations, they are ingrained into the U.S. (and the global) consciousness and aptly informed the post-Snowden protests against government surveillance.
A third often overlooked historical iteration of organized surveillance resistance were the censuses undertaken by the Dutch and West German governments in the 1970s and 1980s.299 What makes especially the German case so interesting is that it was, as Matthew Hannah has pointed out at, “the earliest major social movement aimed directly at core features of the
293 Parenti, The Soft Cage, 20.
294 Cf. Keck and Sikkink, Activists beyond Borders, 39-51.
295 The judicial struggles for the right to privacy, end of slavery and equality were interlocked. The passing of Fourteenth amendment, which granted citizenship rights to all persons including Blacks enabled also the expansion of the Fourth Amendment from federal to state level. As Taslitz notes: “Understanding the meaning of today's Fourth Amendment therefore requires study of the evolving meanings of search and seizure during the fight to end slavery, for it was that fight that motivated and defined the draft and ratification of the Fourteenth Amendment.” Taslitz, Reconstructing the Fourth Amendment, 12.
296 Cf. Ruth Thompson-Miller, Joe R. Feagin, and Leslie H. Picca, Jim Crow's Legacy: The Lasting Impact of
Segregation (Lanham: Rowman & Littlefield, 2015), 35-99. See also Taslitz, Reconstructing the Fourth Amendment, 106 et seq.
297 See for example Julia Craven, “Surveillance of Black Lives Matter Movement Recalls COINTELPRO.” The Huffington Post, August 19, 2015 (accessed September 29, 2015).
http://www.huffingtonpost.com/entry/surveillance-black-lives-matter- cointelpro_us_55d49dc6e4b055a6dab24008.
298 Lane, American Privacy, 1.
299 The following segment will summarize and analyze the West German case. For the resistance against the national census in the Netherlands in the early 1970s see for example Bennet, The Privacy Advocates, 135; Simon G. Davies, “Re-Engineering the Right to Privacy: How Privacy Has Been Transformed from a Right to a Commodity,” in
Technology and Privacy: The New Landscape, ed. Phillip E. Agre and Marc Rotemberg (Boston: MIT Press, 1998),
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'information age'”.300 It can thus be seen as legitimate predecessor to the protests in the wake of the Snowden leaks.
When the German federal government attempted to conduct a census in 1983, widespread opposition followed. However, the first attempt was canceled not because of popular resistance but because it was deemed unconstitutional by Germany's highest court. After going back to the drawing board the Kohl administration, with the help of an ad agency, launched another census in 1987 which again faced a wave of opposition by civil society actors but eventually went as planned. Supported and spun by Germany's left-leaning media (taz, Der Spiegel, Frankfurter
Rundschau), government intrusion and privacy became hot-button issues. In the April of 1983,
when the anti-Census discourse reached its peak, a politically heterogeneous coalition of more than 300 spontaneous citizens' initiatives consisting of 10,000 people had formed voicing dissent and planning strategies for boycott.301 Four years later, the network of citizens' initiatives grew to 1,500302 with large street protests held in Berlin and Hamburg with thousands of participants.303 When the census was finally conducted, up to 2 percent of citizens outright boycotted it despite threats of financial penalties looming over them while millions turned in purposefully incomplete or erroneous forms.304 Resistance included not only peaceful protests but also physical attacks on enumerators and terrorism: in at least three cities register offices were fire bombed.305
By giving their personal data to enumerators at their door steps, citizens not only feared for their individual privacy, but for their collective political rights. Parts of the populace feared that a continuation of the mass-scale demonstrations of the 1960s and 1970s against war, nuclear power, and the destruction of the environment would be compromised by giving away their data.306 Vivid memories of being 'kettled' at demonstrations – surrounded by police officers and
300 Matthew G. Hannah, Dark Territory in the Information Age: Learning from the West German Census
Controversies of the 1980s (Surrey and Burlington: Ashgate 2010), 3.
301 Cf. Rob Burns and Wilfried van der Will, Protest and Democracy in West Germany: Extra-Parliamentary Opposition and the Democratic Agenda (Houndsmill and London: Macmillan, 1988), 182.
302 Cf. Hannah, Dark Territory, 134. 303 Cf. Ibid., 158.
304 Cf. Ibid., 176-177. Methods of subverting the data collection for the census included 'encrypting' the form by cutting of the identification number, spilling coffee on or refusing to open the door for enumerators. Ibid., 56. 305 Cf. Ibid., 165-166.
306 Cf. Matthew G. Hannah, „Die umstrittene Konstruktion von Vertrauen und Misstrauen in der westdeutschen Volkszählungsboykottbewegung 1983,“ Social Geography 3 (2008), 11-21, 14. As Hannah notes, the boycott movement saw the census as another element of the “wider systematic inhumanities of Cold-War West German
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only being allowed to leave after showing identification307 – motivated many West Germans to boycott the census. In many ways the emergence of the West German system of surveillance resembled the one the United States put in place after the terrorist attacks on 9/11 (see section 2.4). The census in Germany was perceived to be in the same vein as the 'Emergency Laws', 'Orders on Radicals', and 'Employment Bans' as well as search tactics that were executed as a