CDA 230 bans Facebook from blocking interoperable tools
I'm touring my new, nationally bestselling novel The Bezzle! Catch me TONIGHT (May 2) in WINNIPEG, then TOMORROW (May 3) in CALGARY, then SATURDAY (May 4) in VANCOUVER, then onto Tartu, Estonia, and beyond!
Section 230 of the Communications Decency Act is the most widely misunderstood technology law in the world, which is wild, given that it's only 26 words long!
CDA 230 isn't a gift to big tech. It's literally the only reason that tech companies don't censor on anything we write that might offend some litigious creep. Without CDA 230, there'd be no #MeToo. Hell, without CDA 230, just hosting a private message board where two friends get into serious beef could expose to you an avalanche of legal liability.
CDA 230 is the only part of a much broader, wildly unconstitutional law that survived a 1996 Supreme Court challenge. We don't spend a lot of time talking about all those other parts of the CDA, but there's actually some really cool stuff left in the bill that no one's really paid attention to:
One of those little-regarded sections of CDA 230 is part (c)(2)(b), which broadly immunizes anyone who makes a tool that helps internet users block content they don't want to see.
Enter the Knight First Amendment Institute at Columbia University and their client, Ethan Zuckerman, an internet pioneer turned academic at U Mass Amherst. Knight has filed a lawsuit on Zuckerman's behalf, seeking assurance that Zuckerman (and others) can use browser automation tools to block, unfollow, and otherwise modify the feeds Facebook delivers to its users:
https://knightcolumbia.org/documents/gu63ujqj8o
If Zuckerman is successful, he will set a precedent that allows toolsmiths to provide internet users with a wide variety of automation tools that customize the information they see online. That's something that Facebook bitterly opposes.
Facebook has a long history of attacking startups and individual developers who release tools that let users customize their feed. They shut down Friendly Browser, a third-party Facebook client that blocked trackers and customized your feed:
Then in in 2021, Facebook's lawyers terrorized a software developer named Louis Barclay in retaliation for a tool called "Unfollow Everything," that autopiloted your browser to click through all the laborious steps needed to unfollow all the accounts you were subscribed to, and permanently banned Unfollow Everywhere's developer, Louis Barclay:
Now, Zuckerman is developing "Unfollow Everything 2.0," an even richer version of Barclay's tool.
This rich record of legal bullying gives Zuckerman and his lawyers at Knight something important: "standing" – the right to bring a case. They argue that a browser automation tool that helps you control your feeds is covered by CDA(c)(2)(b), and that Facebook can't legally threaten the developer of such a tool with liability for violating the Computer Fraud and Abuse Act, the Digital Millennium Copyright Act, or the other legal weapons it wields against this kind of "adversarial interoperability."
Writing for Wired, Knight First Amendment Institute at Columbia University speaks to a variety of experts – including my EFF colleague Sophia Cope – who broadly endorse the very clever legal tactic Zuckerman and Knight are bringing to the court.
I'm very excited about this myself. "Adversarial interop" – modding a product or service without permission from its maker – is hugely important to disenshittifying the internet and forestalling future attempts to reenshittify it. From third-party ink cartridges to compatible replacement parts for mobile devices to alternative clients and firmware to ad- and tracker-blockers, adversarial interop is how internet users defend themselves against unilateral changes to services and products they rely on:
Now, all that said, a court victory here won't necessarily mean that Facebook can't block interoperability tools. Facebook still has the unilateral right to terminate its users' accounts. They could kick off Zuckerman. They could kick off his lawyers from the Knight Institute. They could permanently ban any user who uses Unfollow Everything 2.0.
Obviously, that kind of nuclear option could prove very unpopular for a company that is the very definition of "too big to care." But Unfollow Everything 2.0 and the lawsuit don't exist in a vacuum. The fight against Big Tech has a lot of tactical diversity: EU regulations, antitrust investigations, state laws, tinkerers and toolsmiths like Zuckerman, and impact litigation lawyers coming up with cool legal theories.
Together, they represent a multi-front war on the very idea that four billion people should have their digital lives controlled by an unaccountable billionaire man-child whose major technological achievement was making a website where he and his creepy friends could nonconsensually rate the fuckability of their fellow Harvard undergrads.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
Blaming social media is too easy an explanation for the terrible situation we collectively find ourselves in as a nation….For many Republican politicians, there is little incentive to challenge this false narrative: due to gerrymandering, winning their primary is equivalent to winning re-election, and no one wants to alienate 70% of their voters. Whether we ‘fix’ Facebook or YouTube, whether or not we deplatform more QAnon folk or drive militia members into encrypted chat spaces, two more years of elected leaders repeating disinformation is going to hurt us as a society.
I think we’re trying to fix social media in part because it’s too hard and too scary to fix our political system. The problem is that even if we build better, more thoughtful, more careful media systems – as I thoroughly believe we should do – they may not be able to help us through a moment where many of our leaders embrace a demonstrably false narrative.
Fixing disinformation won't save us - Ethan Zuckerman
On OCTOBER 23 at 7PM, I'll be in DECATUR, presenting my novel THE BEZZLE at EAGLE EYE BOOKS.
It's Saturday and any fule kno that this is the day for a linkdump, in which the links that couldn't be squeezed into the week's newsletter editions get their own showcase. Here's the previous 23 linkdumps:
https://pluralistic.net/tag/linkdump/
Start your weekend with some child's play! Ada & Zangemann is a picture book by Matthias Kirschner and Sandra Brandstätter of Free Software Foundation Europe, telling the story of a greedy inventor who ensnares a town with his proprietary, remote-brickable gadgets, and Ada, his nemesis, a young girl who reverse engineers them and lets their users seize the means of computation:
Ada & Zangemann is open access – you can share it, adapt it, and sell it as you see fit – and has been translated into several languages. Now, there's a cartoon version, an animated adaptation that is likewise open access, with digital assets for your remixing pleasure:
https://fsfe.org/activities/ada-zangemann//movie
Figuring out how to talk to kids about important subjects is a clarifying exercise. Back in the glory days of SNL, Eddie Murphy lampooned Fred "Mr" Rogers style of talking to kids, and it was indeed very funny:
https://snl.fandom.com/wiki/Mr._Robinson
But Mr Rogers' rhetorical style wasn't as simple as "talk slowly and use small words" – the "Fredish" dialect that Mr Rogers created was thoughtful, empathic, inclusive, and very effective:
Lots of writers have used the sing-songy fairytale style of children's stories to make serious political points (see, e.g. Animal Farm). My own attempt at this was my 2011 short story "The Brave Little Toaster," for MIT Tech Review's annual sf series. If the title sounds familiar, that's because I nicked it from Tom Disch's tale of the same name, as part of my series of stolen title stories:
My Toaster story is a tale of IoT gone wild, in which the nightmare of a world of "smart" devices that exert control over their owners is shown to be a nightmare. A work colleague sent me this adaptation of the story as part of an English textbook, with lots of worksheet-style exercises. I'd never seen this before, and it's very fun:
If you like my "Brave Little Toaster," you'll likely enjoy my novella "Unauthorized Bread," which appears in my 2019 collection Radicalized and is currently being adapted as a middle-grades graphic novel by Blue Delliquanti for Firstsecond:
Childlike parables have their place, but just because something fits in a "just so" story, that doesn't make it true. Cryptocurrency weirdos desperately need to learn this lesson. The foundation of cryptocurrency is a fairytale about the origin of money, a mythological marketplace in which freely trading individuals who struggled to find a "confluence of needs." If you wanted to trade one third of your cow for two and a half of my chickens, how could we complete the transaction?
In the "money story" fairy tale, we spontaneously decided that we would use gold, for a bunch of nonsensical reasons that don't bear even cursory scrutiny. And so coin money sprang into existence, and we all merrily traded our gold with one another until a wicked government came and stole our gold with (cue scary voice) taaaaaaxes.
There is zero evidence for this. It's literally a fairy tale. There is a rich history of where money came from, and the answer, in short is, governments created it through taxes, and money doesn't exist without taxation:
The money story is a lie, and it's a consequential one. The belief that money arises spontaneously out of the needs of freely trading people who voluntarily accept an arbitrary token as a store of value, unit of account, and unit of exchange (coupled with a childish, reactionary aversion to taxation) inspired cryptocurrency, and with it, the scams that allowed unscrupulous huxters to steal billions from everyday people who trusted Matt Damon, Spike Lee and Larry David when they told them that cryptocurrency was a sure path to financial security:
It turns out that private money, far from being a tool of liberation, is rather just a dismal tool for ripping off the unsuspecting, and that goes double for crypto, where complexity can be weaponized by swindlers:
We don't hear nearly as much about crypto these days – many of the pump-and-dump set have moved on to pitching AI stock – but there's still billions tied up in the scam, and new shitcoins are still being minted at speed. The FBI actually created a sting operation to expose the dirtiness of the crypto "ecosystem":
They found that the exchanges, "market makers" and other seemingly rock-ribbed institutions where suckers are enticed to buy, sell, track and price cryptos are classic Big Store cons:
When you, the unsuspecting retail investor, enter one of these mirror-palaces, you are the only audience member in a play that everyone else is in on. Those vigorous trades that see the shitcoin you're being hustled with skyrocketing in value? They're "wash trades," where insiders buy and sell the same asset to one another, without real money ever changing hands, just to create the appearance of a rapidly appreciating asset that you had best get in on before you are priced out of the market.
This scam is as old as con games themselves and, as with other scams- S&Ls, Enron, subprime – the con artists have parlayed their winnings into social respectability and are now flushing them into the political system, to punish lawmakers who threaten their ability to rip off you and your neighbors. A massive, terrifying investigative story in The New Yorker shows how crypto billionaires stole the Democratic nomination from Katie Porter, one of the most effective anti-scam lawmakers in recent history:
Big Tech – like every corrupt cartel in history – is desperate to conjure a kleptocracy into existence, whose officials they can corrupt in order to keep the machine going until they've maximized their gains and achieved escape velocity from consequences.
No surprise, then, that tech companies have adopted the same spin tactics that sowed doubt about the tobacco-cancer link, in order to keep the US from updating its anemic privacy laws. The last time Congress gave us a new consumer privacy law was 1988, when they banned video store clerks from disclosing our VHS rental history to newspapers:
By preventing confining privacy law to the VCR era, Big Tech has been able to plunder our data with impunity – aided by cops and spies who love the fact that there's a source of cheap, off-the-books, warrantless surveillance data that would be illegal for them to collect.
Writing for Tech Policy Press, the Norcal ACLU's Jake Snow connects the tobacco industry fight over "pre-emption" to the modern fight over privacy laws:
In the 1990s, Big Tobacco went to war against state anti-smoking laws, arguing that the federal government had the right – nay, the duty – to create a "harmonized" national system of smoking laws that would preempt state laws. Strangely, politicians who love "states' rights" when it comes to banning abortion, tax-base erosion and "right to work" anti-union laws suddenly discovered federal religion when their campaign donors from the Cancer-Industrial Complex decided that states shouldn't use those rights to limit smoking.
This is exactly the tack that Big Tech has taken on privacy, arguing that any update to federal privacy law should abolish muscular state-level laws, like Illinois's best-in-class biometric privacy rules, or California's CPPA.
Like Big Tobacco, Big Tech has "funded front groups, hired an armada of lobbyists, donated millions to campaigns, and opened a firehose of lobbying money," with the goal of replacing "real privacy laws with fake industry alternatives as ineffective as non-smoking sections."
Whether it's understanding the origin of money or the Big Tobacco playbook, knowing history can protect you from all kinds of predatory behavior. But history isn't merely a sword and shield, it's also just a delight. Internet pioneer Ethan Zuckerman is road-tripping around America, and in August, he got to Columbus, IN, home to some of the country's most beautiful and important architectural treasures:
The buildings – clustered in within a few, walkable blocks – are the legacy of the diesel engine manufacturing titan Cummins, whose postwar president J Irwin Miller used the company's wartime profits to commission a string of gorgeous structures from starchitects like the Saarinens, IM Pei, Kevin Roche, Richard Meier, Harry Weese, César Pelli, Gunnar Birkerts, and Skidmore. I had no idea about any of this, and now I want to visit Columbus!
I'm planning a book tour right now (for my next novel, Picks and Shovels, which is out in February) and there's a little wiggle-room in the midwestern part of the tour. There's a possibility that I'll end up in the vicinity, and if that happens, I'm definitely gonna find time for a little detour!
Tor Books as just published two new, free LITTLE BROTHER stories: VIGILANT, about creepy surveillance in distance education; and SPILL, about oil pipelines and indigenous landback.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
TONIGHT (June 20) I'm live onstage in LOS ANGELES for a recording of the GO FACT YOURSELF podcast. TOMORROW (June 21) I'm doing an ONLINE READING for the LOCUS AWARDS at 16hPT. On SATURDAY (June 22) I'll be in OAKLAND, CA for a panel (13hPT) and a keynote (18hPT) at the LOCUS AWARDS.
It's not your imagination: tech really is underregulated. There are plenty of avoidable harms that tech visits upon the world, and while some of these harms are mere negligence, others are self-serving, creating shareholder value and widespread public destruction.
Making good tech policy is hard, but not because "tech moves too fast for regulation to keep up with," nor because "lawmakers are clueless about tech." There are plenty of fast-moving areas that lawmakers manage to stay abreast of (think of the rapid, global adoption of masking and social distancing rules in mid-2020). Likewise we generally manage to make good policy in areas that require highly specific technical knowledge (that's why it's noteworthy and awful when, say, people sicken from badly treated tapwater, even though water safety, toxicology and microbiology are highly technical areas outside the background of most elected officials).
That doesn't mean that technical rigor is irrelevant to making good policy. Well-run "expert agencies" include skilled practitioners on their payrolls – think here of large technical staff at the FTC, or the UK Competition and Markets Authority's best-in-the-world Digital Markets Unit:
The job of government experts isn't just to research the correct answers. Even more important is experts' role in evaluating conflicting claims from interested parties. When administrative agencies make new rules, they have to collect public comments and counter-comments. The best agencies also hold hearings, and the very best go on "listening tours" where they invite the broad public to weigh in (the FTC has done an awful lot of these during Lina Khan's tenure, to its benefit, and it shows):
But when an industry dwindles to a handful of companies, the resulting cartel finds it easy to converge on a single talking point and to maintain strict message discipline. This means that the evidentiary record is starved for disconfirming evidence that would give the agencies contrasting perspectives and context for making good policy.
Tech industry shills have a favorite tactic: whenever there's any proposal that would erode the industry's profits, self-serving experts shout that the rule is technically impossible and deride the proposer as "clueless."
This tactic works so well because the proposers sometimes are clueless. Take Europe's on-again/off-again "chat control" proposal to mandate spyware on every digital device that will screen everything you upload for child sex abuse material (CSAM, better known as "child pornography"). This proposal is profoundly dangerous, as it will weaken end-to-end encryption, the key to all secure and private digital communication:
It's also an impossible-to-administer mess that incorrectly assumes that killing working encryption in the two mobile app stores run by the mobile duopoly will actually prevent bad actors from accessing private tools:
When technologists correctly point out the lack of rigor and catastrophic spillover effects from this kind of crackpot proposal, lawmakers stick their fingers in their ears and shout "NERD HARDER!"
But this is only half the story. The other half is what happens when tech industry shills want to kill good policy proposals, which is the exact same thing that advocates say about bad ones. When lawmakers demand that tech companies respect our privacy rights – for example, by splitting social media or search off from commercial surveillance, the same people shout that this, too, is technologically impossible.
That's a lie, though. Facebook started out as the anti-surveillance alternative to Myspace. We know it's possible to operate Facebook without surveillance, because Facebook used to operate without surveillance:
Likewise, Brin and Page's original Pagerank paper, which described Google's architecture, insisted that search was incompatible with surveillance advertising, and Google established itself as a non-spying search tool:
http://infolab.stanford.edu/pub/papers/google.pdf
Even weirder is what happens when there's a proposal to limit a tech company's power to invoke the government's powers to shut down competitors. Take Ethan Zuckerman's lawsuit to strip Facebook of the legal power to sue people who automate their browsers to uncheck the millions of boxes that Facebook requires you to click by hand in order to unfollow everyone:
Facebook's apologists have lost their minds over this, insisting that no one can possibly understand the potential harms of taking away Facebook's legal right to decide how your browser works. They take the position that only Facebook can understand when it's safe and proportional to use Facebook in ways the company didn't explicitly design for, and that they should be able to ask the government to fine or even imprison people who fail to defer to Facebook's decisions about how its users configure their computers.
This is an incredibly convenient position, since it arrogates to Facebook the right to order the rest of us to use our computers in the ways that are most beneficial to its shareholders. But Facebook's apologists insist that they are not motivated by parochial concerns over the value of their stock portfolios; rather, they have objective, technical concerns, that no one except them is qualified to understand or comment on.
There's a great name for this: "scalesplaining." As in "well, actually the platforms are doing an amazing job, but you can't possibly understand that because you don't work for them." It's weird enough when scalesplaining is used to condemn sensible regulation of the platforms; it's even weirder when it's weaponized to defend a system of regulatory protection for the platforms against would-be competitors.
Just as there are no atheists in foxholes, there are no libertarians in government-protected monopolies. Somehow, scalesplaining can be used to condemn governments as incapable of making any tech regulations and to insist that regulations that protect tech monopolies are just perfect and shouldn't ever be weakened. Truly, it's impossible to get someone to understand something when the value of their employee stock options depends on them not understanding it.
None of this is to say that every tech regulation is a good one. Governments often propose bad tech regulations (like chat control), or ones that are technologically impossible (like Article 17 of the EU's 2019 Digital Single Markets Directive, which requires tech companies to detect and block copyright infringements in their users' uploads).
But the fact that scalesplainers use the same argument to criticize both good and bad regulations makes the waters very muddy indeed. Policymakers are rightfully suspicious when they hear "that's not technically possible" because they hear that both for technically impossible proposals and for proposals that scalesplainers just don't like.
After decades of regulations aimed at making platforms behave better, we're finally moving into a new era, where we just make the platforms less important. That is, rather than simply ordering Facebook to block harassment and other bad conduct by its users, laws like the EU's Digital Markets Act will order Facebook and other VLOPs (Very Large Online Platforms, my favorite EU-ism ever) to operate gateways so that users can move to rival services and still communicate with the people who stay behind.
Think of this like number portability, but for digital platforms. Just as you can switch phone companies and keep your number and hear from all the people you spoke to on your old plan, the DMA will make it possible for you to change online services but still exchange messages and data with all the people you're already in touch with.
I love this idea, because it finally grapples with the question we should have been asking all along: why do people stay on platforms where they face harassment and bullying? The answer is simple: because the people – customers, family members, communities – we connect with on the platform are so important to us that we'll tolerate almost anything to avoid losing contact with them:
Platforms deliberately rig the game so that we take each other hostage, locking each other into their badly moderated cesspits by using the love we have for one another as a weapon against us. Interoperability – making platforms connect to each other – shatters those locks and frees the hostages:
But there's another reason to love interoperability (making moderation less important) over rules that require platforms to stamp out bad behavior (making moderation better). Interop rules are much easier to administer than content moderation rules, and when it comes to regulation, administratability is everything.
The DMA isn't the EU's only new rule. They've also passed the Digital Services Act, which is a decidedly mixed bag. Among its provisions are a suite of rules requiring companies to monitor their users for harmful behavior and to intervene to block it. Whether or not you think platforms should do this, there's a much more important question: how can we enforce this rule?
Enforcing a rule requiring platforms to prevent harassment is very "fact intensive." First, we have to agree on a definition of "harassment." Then we have to figure out whether something one user did to another satisfies that definition. Finally, we have to determine whether the platform took reasonable steps to detect and prevent the harassment.
Each step of this is a huge lift, especially that last one, since to a first approximation, everyone who understands a given VLOP's server infrastructure is a partisan, scalesplaining engineer on the VLOP's payroll. By the time we find out whether the company broke the rule, years will have gone by, and millions more users will be in line to get justice for themselves.
So allowing users to leave is a much more practical step than making it so that they've got no reason to want to leave. Figuring out whether a platform will continue to forward your messages to and from the people you left there is a much simpler technical matter than agreeing on what harassment is, whether something is harassment by that definition, and whether the company was negligent in permitting harassment.
But as much as I like the DMA's interop rule, I think it is badly incomplete. Given that the tech industry is so concentrated, it's going to be very hard for us to define standard interop interfaces that don't end up advantaging the tech companies. Standards bodies are extremely easy for big industry players to capture:
If tech giants refuse to offer access to their gateways to certain rivals because they seem "suspicious," it will be hard to tell whether the companies are just engaged in self-serving smears against a credible rival, or legitimately trying to protect their users from a predator trying to plug into their infrastructure. These fact-intensive questions are the enemy of speedy, responsive, effective policy administration.
But there's more than one way to attain interoperability. Interop doesn't have to come from mandates, interfaces designed and overseen by government agencies. There's a whole other form of interop that's far nimbler than mandates: adversarial interoperability:
"Adversarial interoperability" is a catch-all term for all the guerrilla warfare tactics deployed in service to unilaterally changing a technology: reverse engineering, bots, scraping and so on. These tactics have a long and honorable history, but they have been slowly choked out of existence with a thicket of IP rights, like the IP rights that allow Facebook to shut down browser automation tools, which Ethan Zuckerman is suing to nullify:
https://locusmag.com/2020/09/cory-doctorow-ip/
Adversarial interop is very flexible. No matter what technological moves a company makes to interfere with interop, there's always a countermove the guerrilla fighter can make – tweak the scraper, decompile the new binary, change the bot's behavior. That's why tech companies use IP rights and courts, not firewall rules, to block adversarial interoperators.
At the same time, adversarial interop is unreliable. The solution that works today can break tomorrow if the company changes its back-end, and it will stay broken until the adversarial interoperator can respond.
But when companies are faced with the prospect of extended asymmetrical war against adversarial interop in the technological trenches, they often surrender. If companies can't sue adversarial interoperators out of existence, they often sue for peace instead. That's because high-tech guerrilla warfare presents unquantifiable risks and resource demands, and, as the scalesplainers never tire of telling us, this can create real operational problems for tech giants.
In other words, if Facebook can't shut down Ethan Zuckerman's browser automation tool in the courts, and if they're sincerely worried that a browser automation tool will uncheck its user interface buttons so quickly that it crashes the server, all it has to do is offer an official "unsubscribe all" button and no one will use Zuckerman's browser automation tool.
We don't have to choose between adversarial interop and interop mandates. The two are better together than they are apart. If companies building and operating DMA-compliant, mandatory gateways know that a failure to make them useful to rivals seeking to help users escape their authority is getting mired in endless hand-to-hand combat with trench-fighting adversarial interoperators, they'll have good reason to cooperate.
And if lawmakers charged with administering the DMA notice that companies are engaging in adversarial interop rather than using the official, reliable gateway they're overseeing, that's a good indicator that the official gateways aren't suitable.
It would be very on-brand for the EU to create the DMA and tell tech companies how they must operate, and for the USA to simply withdraw the state's protection from the Big Tech companies and let smaller companies try their luck at hacking new features into the big companies' servers without the government getting involved.
Indeed, we're seeing some of that today. Oregon just passed the first ever Right to Repair law banning "parts pairing" – basically a way of using IP law to make it illegal to reverse-engineer a device so you can fix it.
Taken together, the two approaches – mandates and reverse engineering – are stronger than either on their own. Mandates are sturdy and reliable, but slow-moving. Adversarial interop is flexible and nimble, but unreliable. Put 'em together and you get a two-part epoxy, strong and flexible.
Governments can regulate well, with well-funded expert agencies and smart, adminstratable remedies. It's for that reason that the administrative state is under such sustained attack from the GOP and right-wing Dems. The illegitimate Supreme Court is on the verge of gutting expert agencies' power:
It's never been more important to craft regulations that go beyond mere good intentions and take account of adminsitratability. The easier we can make our rules to enforce, the less our beleaguered agencies will need to do to protect us from corporate predators.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
The murder of George Floyd by Minneapolis police officers was captured on video, not once but half a dozen times. As we try to understand why a police officer continued compressing a man’s neck and spine for minutes after he’d lost consciousness, we have footage from security cameras at Cup Foods, where Floyd allegedly paid…
Much of what we think about surveillance comes from the French philosopher Michel Foucault. Foucault examined the ideas of the English reformer Jeremy Bentham, who proposed a prison—the panopticon or Inspection-House—in which every cell was observable from a central watchtower. The possibility that someone might be watching, Bentham believed, would be enough to prevent bad behavior by prisoners. Foucault observed that this knowledge of being watched forces us to police ourselves; our act of disciplining ourselves as if we were always under observation, more than the threat of corporal punishment, is the primary mechanism of “political technology” and power in modern society.
The hope for sousveillance comes from the same logic. If police officers know they’re being watched both by their body cameras and by civilians with cell phones, they will discipline themselves and refrain from engaging in unnecessary violence. It’s a good theory, but in practice, it hasn’t worked. A large study in 2017 by the Washington, DC, mayor’s office assigned more than a thousand police officers in the District to wear body cameras and more than a thousand to go camera-free. The researchers hoped to find evidence that wearing cameras correlated with better policing, less use of force, and fewer civilian complaints. They found none: the difference in behavior between the officers who knew they were being watched and the officers who knew they were not was statistically insignificant. Another study, which analyzed the results of 10 randomized controlled trials of body camera use in different nations, was helpfully titled “Wearing body cameras increases assaults against officers and does not reduce police use of force.”
Reacting to the DC study, some scholars have hoped that if cameras don’t deter officers from violent behavior, at least the film can hold them accountable afterwards. There, too, body cameras rarely work the way we hope. While careful, frame-by-frame analysis of video often shows that victims of police shootings were unarmed and that officers mistook innocuous objects for weapons, attorneys for the defense screen the videos at normal speed to show how tense, fast, and scary confrontations between police and suspects can be. A 1989 Supreme Court decision means that if police officers have an “objectively reasonable” fear that their lives or safety are in danger, they are justified in using deadly force. Videos from body cameras and bystander cell phones have worked to bolster “reasonable fear” defense claims as much as they have demonstrated the culpability of police officers.
It turns out that images matter, but so does power. Bentham’s panopticon works because the warden of the prison has the power to punish you if he witnesses your misbehavior. But Bentham’s other hope for the panopticon—that the behavior of the warden would be transparent and evaluated by all who saw him—has never come to pass. Over 10 years, from 2005 to 2014, only 48 officers were charged with murder or manslaughter for use of lethal force, though more than 1,000 people a year are killed by police in the United States.
As he stared at Darnella Frazier, Officer Chauvin knew this, because it’s impossible to work in law enforcement in the US and not know this. The institutions that protect police officers from facing legal consequences for their actions—internal affairs divisions, civil service job protections, police unions, “reasonable fear”—work far better than the institutions that hold them responsible for abuses.
The hope that pervasive cameras by themselves would counterbalance the systemic racism that leads to the overpolicing of communities of color and the disproportionate use of force against black men was simply a techno-utopian fantasy. It was a hope that police violence could be an information problem like Uber rides or Amazon recommendations, solvable by increasing the flows of data. But after years of increasingly widespread bodycam use and ever more pervasive social media, it’s clear that information can work only when it’s harnessed to power. If there’s one thing that Americans—particularly people of color in America—have learned from George Floyd, Philando Castile, and Eric Garner, it’s that individuals armed with images are largely powerless to make systemic change.
That’s the reason people have taken to the streets in Minneapolis, DC, New York, and so many other cities. There’s one thing images of police brutality seem to have the power to do: shock, outrage, and mobilize people to demand systemic change. That alone is the reason to keep filming.
“It turns out that images matter, but so does power.”
