Author Archives: Mike Larsen

Food for Thought: Law, Society, and Access to Information

Our final class focused on the socio-legal dimensions of secrecy and access to information.

I have three final ‘food for thought’ questions. You may choose to compose a post in response to one of these questions.

Food for thought:

Option 1: Locate and briefly discuss one call for the reform of Canada’s Access to Information Act. This could take the form of a government report, an NGO report, a media article, or an academic article. Drawing on one or more socio-legal theories, explain why the federal government has not reformed the ATIA in response to this call. For example, you could reflect on the functions of ATI/FOI laws, the relationship secrecy and bureaucracy, the ideology of Access, or the relationship between ATI/FOI and sovereign power.

Option 2: ATI/FOI mechanisms recognize and facilitate a legal right to access public records. It is – by definition – lawful to file an ATI/FOI request. However, some students, when first introduced to the topic of ATI/FOI, have expressed a concern that filing a request might ‘put them on the radar’ or identify them as ‘people to watch out for’. They have noted that this is of particular concern to those who plan to seek employment within government (ex. as police officers). Drawing on one or more socio-legal theories, comment on this concern. Explain the ‘theory of law’ (and of the state) that may inform such a concern.

Option 3: Comack (2006) explains the functionalist, liberal-pluralist, and Marxist perspectives on the Official Version of Law. Drawing on her analysis, and on your knowledge of socio-legal theory, provide an overview of how ATI/FOI laws might be explained by functionalists, liberal-pluralists, and Marxists.

Posts prepared in response to one of these questions must be submitted before the end of the day on Saturday Dec. 7.

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The Consequences of Mass-surveillance in the digital age

This post was written by Crim3305student.

The Munk Debate involves both proponents and critics of NSA and CSEC (CBC, 2014). Both sides debate over the use of mass surveillance and data collection of civilians in secret. Proponents of state surveillance claim that national security interests are paramount in response to an external threat. The Proponents of state surveillance include Michael Hayden and Alan Dershowitz. The proponents in the debate contend that state surveillance is a justifiable form of protection against threats of national security. Opponents of state surveillance contend that the infringement of privacy interests without judicial oversight is unjustifiable. Opponents of unregulated state surveillance in the Munk Debate are Alexis Ohanian and Glenn Greenwald.

Proponents of state surveillance argue that the bulk collection of data is essential. The nature of electronic communications warrants its collection and observation on a total scale. E-mail communications between terrorists and criminals are indistinguishable from e-mails of regular citizens. CSEC and the NSA have little choice but to collect and monitor all electronic communications to expose potential threats to state security. The nature of electronic communications allows foreign terrorists to transmit information to potential terrorists inside North America. Proponents of mass surveillance without oversight, claim that foreign threats to national security exist. Since the fall of the Soviet Union, the threat of terrorism against North American countries has shifted. The threats of the Cold War are equivalent to current religious extremists and criminal organizations.

Proponents of the Five Eyes Program claim it is unfair to criticize mass-surveillance. Critics of mass-surveillance fail to acknowledge the entire situation stemming from the terrorist attacks of 2001. Criticizing the use of mass surveillance now; neglects that terrorists abroad transmitted electronic communications to terrorists in North America. The terrorists sent messages to each other prior to the World Trade Centre attacks. The NSA global telecommunications grid screens all e-mails from terrorists and criminals. Terrorists that mean to do North America harm do not deserve constitutional protection.

Surveillance that is adequately balanced with privacy rights can help to maintain security and liberty. The use of surveillance must be justified and must outweigh privacy rights. There is a distinction between types of surveillance that must be acknowledged. There are degrees of surveillance that vary depending on the context of the situation.  A balance of restraint and flexibility is needed when utilizing surveillance. Surveillance, when focused on criminal organizations and terrorists is justified to ensure the security of the state. Polarized opponents of surveillance contend that electronic information is utilized by the state for nefarious purposes. The state utilizes electronic surveillance for preventative purposes concerning terrorism. Mass-surveillance is necessary in acquiring information that prevents acts of terrorism.

Privacy interests are currently “at odds” (CBC, 2014) with the surveillance state as it exists. The surveillance state has expanded due to the rapid advancement of technology in the last 50 years. Advocates of privacy rights contend that privacy is a fundamental right that is inherent in North American society. The privacy advocates in The Munk Debate claim that the use of indiscriminate mass surveillance has 3 hindrances. Privacy advocates claim that mass surveillance is inefficient in that it hinders technological progress, it is harmful to the economy, and counterproductive in addressing threats to national security.

Mass-surveillance creates distrust amongst the global community and diverts the “global user base” (CBC, 2014) away from North American technological services. Internet users will use servers outside of North America that maintain a veneer of privacy. Economic security that helps to provide “national security” (CBC, 2014) has been hindered by mass-surveillance. Countries threatened by North American surveillance may insulate themselves from the internet. Technological progress that results from global interconnectedness through the internet has been threatened by The Five Eyes Program.

Michael Hayden describes how countries like Germany and Brazil may detach their interconnectedness from the World Wide Web (CBC, 2014). The use of mass-surveillance undermines national security because it fails to secure technological exploits. Threats to national security can utilize the same weaknesses in technology that the state utilizes to surveil citizens. Technological defects should be fixed to prevent further exploitation and criminal activity. Mass-surveillance destabilizes the security of global interconnectedness by allowing technological flaws to endure. The NSA and CSEC receive massive budgets that could be utilized to prevent further criminal activity on the internet. The use of mass surveillance is counterproductive to security, democracy, and the economy.

Unfortunately, state surveillance has remained secretive in its practices. The NSA is a non-transparent organization with no judicial over sight. The use of mass-surveillance has not been limited to international countries. The Five Eyes Program collects electronic communications of entire populations that have committed no criminal offence. State organizations that gather information in secret operate under the scapegoat of terrorism and national security. North American populations have been the victims of extensive mass-surveillance and data collection. Indiscriminate data collection results in an overabundance of information to sift through. The Five Eyes program is collecting communications from entire populations instead of communications relating to specific threats. Legitimate democratic governments should be incapable of indiscriminately infringing upon constitutional rights of privacy.

I contend that state authorities need judicial oversight to prevent fishing for evidence.  Reasonable and probable grounds are needed to warrant the electronic surveillance of any individual. Oversight is needed to regulate state discretion regarding privacy interests. The scapegoat of terrorism and national security fails to justify the unwarranted mass-surveillance of civilians. Vague and ambiguous ideals that appeal to patriotism are inadequate in justifying indiscriminate state surveillance. Many forms of surveillance exist in North America, and the Snowden leaks exposed surveillance on a macro scale.

Richards describes how secret and total surveillance by the state should be viewed as illegitimate and with an innate potential for abuse (Richards, 2013, pp. 935-936). Glenn Greenwald stated during the Munk debate that the NSA intended to “collect it all, sniff it all, know it all, process it all, and exploit it all” (CBC, 2014). While the NSA’s purpose may not be “Orwellian” (Richards, 2013, p. 953) in nature, mass-surveillance creates a power dynamic. The watchers and those being watched are involved in a hierarchal relationship. The use of mass-surveillance, results in power relationships involving “blackmail, discrimination, and persuasion” (Richards, 2013, p. 953). The state in the past has attempted to black mail dissidents using wire taps. The FBI utilized wire taps in an attempt to discredit “Dr. Martin Luther King” (Richards, 2013, p. 953).

It is critical to distinguish between the types of surveillance and their purposes; “surveillance involves the collection and analysis of information about populations in order to govern their activities … surveillance against terrorism is only one use of monitoring systems” (Haggerty & Ericson, 2006, p. 3). The issue of police databases in Ontario collecting information regarding people never being convicted of crimes is an alternative example to the NSA controversy. Though, the use of indiscriminate data collection by the RCMP proved to be invasive and harmful (Cribb, Rankin, & Bailey). An unintended consequence of data collection involved police records preventing people from opportunities. The RCMP case in Ontario exposed how different levels of government and private interests collect data. Often the collection of data can vary in purpose, while The Five Eyes collects data for counter terrorism purposes; the RCMP collects data for record keeping and reference.

The use of data collection involves “overlapping and entangled assemblage of government and corporate watchers” (Richards, 2013, p. 936). “Surveillance assemblages” (Larsen, 2014) lack hierarchies, that resemble a single dominant entity. Instead, Surveillance in modern times involves multiple parties with different agendas that attempt to understand and influence human behavior. Surveillance assemblages vary in purpose; for example corporate surveillance involving rewards cards in stores observe purchasing patterns. Surveillance assemblages result in multiple parties watching each other for various purposes. According to Haggerty and Ericson, surveillance assemblages can embody hegemonic ideals. Institutions can “integrate, combine, and coordinate various systems and components” (Haggerty & Ericson, 2006, p. 5). Hegemonic ideals are reflected in the connection and accumulation of data from separate organizations by a governing institution. Data collected by separate institutions has little potential for harm; although data combined from multiple institutions gives cause for concern.
The formation of a “data double” (Haggerty & Ericson, 2006, p. 4) from various external sources can potentially infringe upon privacy rights. The RCMP`s collection of data regarding circumstances in police reports had unintended consequences for those mentioned. The RCMP was forming partial aspects of people’s data doubles. The information collected by the RCMP resulted in; “these non-conviction record releases violate my constitutional rights to be heard, to defend myself against these false records” (Cribb, Rankin, & Bailey, p. 5). The RCMP`s data collection resulted in innocent citizens being discriminated against. The example of the RCMP`s “Canadian Police Information Centre database” (Cribb, Rankin, & Bailey, p. 1) exposes how a single organization that collects data on citizens can have harmful consequences.

Works Cited
CBC. (2014, May 8). State Surveillance: The Munk Debate. Retrieved November 27, 2014, from CBC.ca:     http://www.cbc.ca/ideas/episodes/2014/05/08/state-surveillance-the-munk-debate/
Cribb, R., Rankin, J., & Bailey, A. (n.d.). 420,000 in police database never convicted: Analysis. The Toronto     Star. Retrieved November 27, 2014, from The Toronto Star:     http://www.thestar.com/news/canada/2014/05/24/420000_in_police_database_never_convict    ed_analysis.html
Haggerty, K. D., & Ericson, R. V. (2006). The New Politics of Surveillance and Visibility. Toronto: University     of Toronto Press.
Larsen, M. (2014, November 25). Law, Society, and Privacy in an Era of Mass Surveillance. Crim 3305 Law     and Society . Kwantlen Polytechnic University.
Richards, N. M. (2013). The Dangers of Surveillance. Harvard Law Review , 26 (934), 934-965.

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Food for Thought: Thinking about Surveillant Assemblages

This week’s class focused on issues related to surveillance, privacy, and the law. We covered a wide range of surveillance practices, from the macro (SIGINT surveillance through the Five Eyes network) to the micro (the implications of signing in to your mykwantlen account). Uniting this conversation were a number of key themes: the rhizomatic nature of surveillant assemblages, the relationship between surveillance and social sorting, the proliferation of fragmentary ‘data doubles’, and the notion of exchanges (privacy for service) as a governing principle of the social relations of surveillance. We also drew on Ericson’s (2007) discussion of counter-law to make sense of some of the forces driving the expansion of surveillant assemblages – in particular, efforts to understand, forestall, and otherwise manage uncertainty. It was a lot of material to cover in one class, but I think we managed it!

Food for Thought:

Today, rather than posing a single question, I want to offer a selection. You may respond to any (one) of the following questions. Regardless of your choice, your response must (1) engage with relevant materials from today’s class, (2) engage with relevant external sources, and (3) adhere to the guidelines set out in your syllabus (in terms of length, citations, etc.). Enjoy!

  1. Draw on a socio-legal theory that we have covered (but not Foucault) to make sense of the expansion of surveillant assemblages outlined by Haggerty and Ericson (2006).
  2. Discuss the merits of the arguments made by the participants in the 2014 Munk Debate on ‘State Surveillance’, and state and support your own position.
  3. Outline the main features of an ideal privacy law (that is, a law governing who may collect and access your personal information, when, under what circumstances, and for what purposes), and explain why these features are appropriate. If you choose to respond to this question, you should spend a few minutes looking into existing privacy laws (in BC and / or Canada).
  4. Respond to the second ‘Critical Thinking Question’ on p. 45 of your syllabus.
  5. Draw on socio-legal theory and the materials we covered today to prepare a response to the following statement: “In terms of surveillance, if you have nothing to hide, you have nothing to fear”.
  6. Write a brief commentary on a one-week ‘snapshot’ of your data double, and discuss the implications that could arise from the linking of some or all of the fragments of this ‘digital trail’.

Posts prepared in response to one of these questions must be submitted before class on December 2.

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Food for Thought: Law, Necessity, and Exceptions

This week’s class focused on legal scholarship concerned with ‘states of exception’, with a particular emphasis on the work of Giorgio Agamben. A portion of our discussion focused on the application of this body of scholarship to cases involving claims of ‘national security’. I would like to continue this discussion here, on our blog.

You have two options:

Food for thought 1:

Write a post that briefly describes the current situation in Ferguson, Missouri, and draws on the ideas of Agamben and Ericson to explain the socio-legal dimensions of this situation. Your post should draw on relevant sources. Be sure to address the nature and implications of the state of emergency.

Food for thought 2:

In response to an event that has been officially deemed an act of terrorism, a government decides that there is an urgent need to create and implement new security powers. The government initially considers two options: 1. Officially declare that a state of emergency is in effect, per the Emergencies Act, and invoke the powers provided for under that Act, or; 2. Draft and rush through Parliament a security bill that provides for expanded powers for police and security services.

Write a post that:

  • Outlines the advantages and disadvantages of each option, both from the perspective of the government and from the perspective of members of the public.
  • Explains which option you believe our government would adopt given this scenario, and why.
  • Describes and discusses a third option.

Your post should engage with Pavlich (2011) and Ericson (2007). You are encouraged to draw on additional sources (to provide examples, support for your arguments, etc.).

Posts prepared in response to either of these questions must be submitted before class on Nov. 25. This gives you one week (only) to prepare your post.

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Disciplinary Power and the Science of Persuasion

The following post was written by Zahra Sunderani, a CRIM 3305 Law & Society student:

Food for Thought: Select a contemporary example of a mechanism of disciplinary power. Briefly introduce your example – with reference to supporting sources. Then explain how it exemplifies disciplinary power, drawing on Pavlich (2011) and other relevant sources. Finally, explain the relationship between this mechanism of disciplinary power and law. You will find Pavlich (pp. 144-145) and the excerpt from Hunt and Wickham (1994) helpful.

Foucault’s disciplinary power is a mechanism of power that does not use force or coercion to obtain compliance, but instead relies on everyday institutions and interactions to allow individuals to govern their own behaviour. It is stated that disciplinary power works very differently, as it functions through “variable and changing (statistical) norms rather than laws, [and] spreads itself across a social network in highly ramified, decentralized fashion,” (Pavlich, 143).There are three key aspects to this mechanism of disciplinary power.

The first is of hierarchical observation, which explains the idea that subjects are under the impression that they are being constantly watched by superiors, when the reality is that they are only sometimes being watched. This constant fear of being monitored forces individuals to always act as if it were the case that they are being watched, in the occasion that they actually are. The second is of normalizing judgments, which sets standards to which individuals are compared with in order to determine the norm, as well as the abnormal. The third, is that of motivational and discouraging techniques. These are small actions that encourage individuals with rewards, or discourage them with penalties. (Pavlich, 143)

The animated video that I chose to relate to Foucault is called “Science of Persuasion,” and it describes the six universal Principles of Persuasion that have been scientifically proven to be effective by the research in Dr. Cialdini’s text: Influence: the psychology of persuasion. In his text, Dr. Cialdini notes that there are six shortcuts which allow persons persuade others to form decisions. These are: reciprocity, scarcity, authority, consistency, liking and consensus. I note that based off of Dr. Cialdini’s research, these social persuasion techniques, specifically reciprocity, create a mechanism of disciplinary power. The first, reciprocity explains how if an individual acts on the behalf of another, the other individual will feel obliged to return a favour. In a study outlined in this text, the tip percentage with relevance to the number of mints left for guests by a waiter at a restaurant was measured. In the study, giving one mint at the end of a meal increased tips by 3%, while giving two increased it by 14%. Most shocking though, were the results found when a server left a mint at a table, started to walk away, but then turned back to leave another while mentioning how pleasant their company was. This action increased tips by 23%, and the study concluded that actions where an individual is the first to give, with personalized unexpectedness will receive the same or even greater rewards in return.

This study, and specifically the tactic of reciprocity can be seen to be a mechanism of disciplinary power. Persuasion is a very strong sort of power which allows persons to act without force or coercion. When a person persuades another, there is a hierarchical power dynamic between the two, where one wants something from another, and when it is given, the power dynamic shifts. Since the server hopes for a large tip from every customer, they monitor their behaviour accordingly. They socially interact to the standards of their customers, and in this way, towards the end, they receive their reward. The standards that the customers have of their servers can be seen as the normalized judgments. If a server is not living up to those standards, they will be penalized with the lack of a tip, and if those standards are surpassed, they will be rewarded generously with a tip. The tip then represents the form of motivator for the server, which guides their behaviour up to the normalized standards.

The law acts as a disciplinary power in the following ways with relation to reciprocity. It is a hierarchical power for it allows and persuades persons to follow the rules and laws even when persons know they are not being watched. I note that part of the reason for why persons do so is because they agree with the standards that the laws hold them to. If a large group of persons did not agree with the standards of the laws, there would be uproar over them, but for the most part, in Canada, most persons are in compliance with the standard. In this way then, as the system of laws function in a way that persons want them to, they reciprocate it by complying to the law as well- creating a hierarchical power. Reciprocity also allows persons to normalize their judgments in accordance with the law as they note that everyone does the same. Following the law is so normalized, that persons who, for example, blow stop signs, are seen to be outliers. As persons reciprocate the idea of following the law to the state, this act becomes the norm. With regards to the example of blowing a stop sign, said person can receive a ticket, and they will be socially condemned by other drivers for doing so. These two negative actions form discouragements that uphold the standard of the law. When persons view that others are following the law, they reciprocate this action by doing the same, in turn creating a hierarchy of power that governs their actions.

 

References:

Cialdini, Robert B. Influence: The Psychology of Persuasion. New York: Collins, 2007. Print.

Pavlich, George. Law & Society: Redefined. Ontario: Oxford University Press, 2011. Print.

Science of Persuasion. Influence Network. 2012. Youtube Video.

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Food for Thought: TWU and the Legal Profession

Our October 28 class focused on studies of the legal profession, with an emphasis on Kennedy’s (1998) classic essay on Legal Education as Training for Hierarchy and Christie’s (1977) influential work on Conflicts as Property. These works are part of the tip of a much larger iceberg of sociological and socio-legal scholarship on legal training, the legal profession, and access to justice.

Our class concluded with a lively discussion about the then-pending results of the BC Law Society’s referendum regarding Trinity Western University’s proposed law school. On Oct. 30, the results of the referendum were made public.

Food for Thought:

Write a three-part blog post, with each part being approximately 1/2 page in length.

  • Part 1 should provide a succinct and well-referenced overview of the Trinity Western Law School bid. It should state the facts of the case, identify the key parties involved (in terms of institutions), and introduce the controversy.
  • Part 2 should draw on one or more theories or texts we have encountered this semester to explain the controversy surrounding the TWU case. I think that Comack (2006) is a helpful starting point.
  • Part 3 should explain your position on the TWU case and / or provide your commentary on how the case has unfolded.

Your post should engage with relevant resources. Be sure to provide support for factual statements and assertions. Hyperlinks are encouraged, but a list of references cites should also appear at the end of your post.

Posts prepared in response to this Food for Thought question must be submitted before class on Nov. 18, 2014.

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Food for Thought: Foucault and Law

This week, we examined the ideas of Michel Foucault, with an emphasis on his typology of techniques of power: sovereign power, disciplinary power, and governmentality / biopower. We focused on the theory of disciplinary power that Foucault explored in his influential text Discipline and Punish. Both Pavlich (2011) and Hunt and Wickham (1994) note that Foucault’s account of the emergence of disciplinary power downplayed the importance of law in modern regulation. Contemporary scholarship that is informed by Foucault’s ideas often involves efforts to reconcile the relationship between law and mechanisms of disciplinary power.

Food for Thought:

Select a contemporary example of a mechanism of disciplinary power. Briefly introduce your example – with reference to supporting sources. Then explain how it exemplifies disciplinary power, drawing on Pavlich (2011) and other relevant sources. Finally, explain the relationship between this mechanism of disciplinary power and law. You will find Pavlich (pp. 144-145) and the excerpt from Hunt and Wickham (1994) helpful.

Other resources of interest:

Posts prepared in response to this food for thought question must be submitted before class on Nov. 18, 2014

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