the FCC’s rules, asserting that they
were “proportionate to the interests
sought to be advanced.”
Which brings us up to date: an opt-
out rule governs the carriers’ use of
CPNI in their own marketing, while an
opt-in rule covers the transfer of this
data to third parties for their own mar-
keting purposes.
Concluding thoughts on the law. In
summary, the surveillance architecture adopted for cellular networks generates a pool of data that feeds into law
enforcement’s and marketers’ desire
for personal information. The result
has been a long-running legal battle in
which the privacy rights of individuals
are continuously traded off against legal and economic imperatives.
The Impact of Cellular Surveillance
The social science literature on surveillance and privacy covers a great
deal of ground, so I will begin with a
few basic assumptions that will narrow the field a bit. We first assume
that the primary impact of surveillance is a reduction in privacy. The
next step—a definition for privacy—
has proven in the past to be a notoriously difficult problem. Attempts at
definitions are usually followed by
a flurry of articles pointing out why
the definition doesn’t work in one or
more contexts.r An all-encompassing
definition is not necessary for our purposes, however, as we are focusing on
the impact of surveillance on the use
of the cellular platform. We need only
note that a common element of most
privacy theories is the metaphor of
a zone of seclusion, a zone in which
the agent can control access to various types of personal information. 33
The value of such a zone lies in part in
the agent’s perception of solitude and
safety. The agent feels free to exercise
various thoughts and behaviors without threat of censure, and is thus able
to develop a sense of self-realization.
Self-realization is a core personal and
social value—it has been cited as the
basis for valuing free speech, 37 thus
enmeshing privacy in a web of values
that animate democratic systems of
r A sense of the back and forth can be obtained
by starting at the beginning of Schoeman’s
excellent anthology38 and reading straight
through.
government. Privacy is thus connected to personal as well as societal development and well-being.
An overlapping yet distinct issue related to the cellular platform is the potential for manipulation through the
use of personal information. As we will
see, the availability of personal information increases the efficacy of advertising and other attempts to drive the
agent to particular thoughts or actions.
The agent’s autonomy is thus at risk,
implicating another of the values important to democratic government. 6, 11
From the standpoint of the cellular
platform, then, there are two issues to
be addressed: the relatively passive infringement on the zone of seclusion
through eavesdropping and data collection, and the more active infringement through manipulation based on
collected data. The passive infringers
generally consist of service providers
and law enforcement agencies, while
the more active take the form of marketers, a group including service providers as well as third parties that have
purchased the collected data.
Passive surveillance. Passive privacy
infringement has its impact through
the cellular user community’s awareness of the potential for surveillance.
The omnipresent potential for surveillance affects several aspects of the
use of the cellular platform, including
social networking, family interaction,
and political expression. We will consider the latter as an exemplary case,
but it should be borne in mind that this
is but one dimension of a multidimensional problem.
The cellular platform has become
increasingly important as a means for
conveying political speech and organizing political behavior. The copiers
and FAX machines that enabled the
movements that brought down the
Soviet empires have been replaced by
the cellphone and its immediately
available, highly portable texting and
video capabilities. Some of the more
salient examples of the political use of
the cellular platform have involved the
coordination of mass action against
political corruption, such as the 2001
s See, for example, Endre Dányi’s Xerox Project:
Photocopy Machines as a Metaphor for an
‘Open Society.’ The Information Society 22, 2
(Apr. 2006), 111–115.
protest against Philippine President
Joseph Estrada and the Ukranian “
Orange Revolution” of 2004.
A Kenyan example typifies both the
use of the platform as a political tool
and the potential consequences of
surveillance. In January 2008, it was
reported that incumbent presidential
candidate Mwai Kibaki had rigged the
Kenyan presidential election. A texting
campaign to promote demonstrations
began almost immediately, with the
discourse quickly devolving into racial
hatred. 21 Instead of shutting down the
SMS system, the Kenyan authorities
sent messages of peace and calm to the
nine million Safaricom subscribers.
After the violence subsided, cellular
service providers gave the Kenyan government a list of some 1,700 individuals who had allegedly used texting to
promote mob violence. 36 The Kenyan
Parliament is debating a law that places
limits on the contents of text messages.
Cellular networks have thus be-
come a key platform for political
speech. The impact of surveillance on
such use can be developed through
analogy to Jeremy Bentham’s Panopti-
con. 2 The Panopticon was a proposed
prison in which the cells were arranged
radially about a central tower. The cells
were backlit so that a guard in the tower
could always see the prisoners, but the
prisoners could never see the guards.
Bentham characterized the Panopti-
con as providing a “new mode of ob-
taining power of mind over mind, in a
quantity hitherto without example.”
The analogy is obvious—we know
that wiretapping or location data col-
lection through use of the cellular
platform is possible, we just do not
know whether or when it is happen-
ing. It follows that in dynamic political
situations, many users will be aware of
the potential for surveillance, and will
thus put self-imposed limitations on
their use of cellular technology. Cel-
lular networks are thus a distributed
form of Panopticon. 45
The self-imposition of discipline is
a key element in this analysis. In
Discipline and Punish, Michel Foucault
characterized the impact of the Panopticon’s pervasive and undetectable surveillance as assuring “the automatic
functioning of power.” 17 Foucault argued that this led to an internalization
of discipline that resulted in “docile
