Communal Surveillance and Justice

-- By MathewKenneally - 13 Oct 2014

Introduction

In modern history law enforcement and punishment has been the exclusive responsibility of the state. In the 21st Century anybody armed with a mobile device, can capture footage of iniquitous behavior and make it widely available online. The community can through watching the footage help identity offenders for police. Through the circulation of the content the perpetrated can be shamed and humiliated. Additionally, if the identity of the offender is known, online activists with the whereiwthal can contact them directly through e-mail, social networks, or in person. This essay discusses the criminal justice implications of our ability consciously surveil each other and publish the material.

Arguably, it is a democratic development, allowing the community itself to hold miscreants to account. It enables an assertion of public values. Where impunity gaps are left by under-resourced are uninterested police the public can enforce social norms of behavior.

However, in my view the trend of mutual surveillance and shaming is antithetical to justice. Who gets surveilled and then "shamed" is a decision based on entertainment rather than culpability. The shaming itself has a propensity to be a disproportionate punishment, with no regard for mitigation or rehabilitation.

The Targets

There is a risk that our culture of mutual surveillance will have a disproportionate impact on vulnerable members of the community. Surveillance in public spaces by its nature captures what are traditionally called "public order" offences. These are offences often committed by the poor, the mentally unwell, and the vulnerable. Additionally, content becomes “viral” because it is entertaining. The matters that come to public attention are not necessarily those that are important but rather the most engaging. We are drawn to extreme behavior, conduct more likely to be engaged in by those who suffer from mental illness or substance abuse. In Australia there have been a number of videos circulated of commuters hurling racist abuse at non-white passengers. In each instance the behavior is deeply abhorrent. It is also strikingly bizarre though, suggesting the offender suffers from underlying problems.

Moreover, when we engage in condemnation to assert public values it is not necessarily because the behavior requires a response, but rather because of our own ideological need or desire to condemn the behavior. For example Faisal Al-Asaad in his short essay Racism and Liberal Society: A Love Story he argues that Australia liberal society, built on a history of dispossession and racism, condemns these incidents in order to perpetuate a myth of multiculturalism:

When seemingly random acts of racial violence take place, white society’s first line of defence is to vilify, reproach and even put on trial those it deems dispensable: women, youth, the working class... In this case, the attackers fit at least two of the descriptive categories [female and working class]. They will now be offered up as sacrificial lambs at the altar of white, liberal values…

Al-Asaad emphasizes that perpetrators are often to online humiliation to to allow the community to distance itself from their behaviors and continue to perpetuate national myths of tolerance and multiculturalism.

The choice of targets of online shaming is driven by entertainment value, ideology, and accessibility. With this criteria, the vulnerable and poor are likely subjects.

Disproportionate Punishment

As decentralized, communal punishment, there is grave risk online shaming can be disproportionate. Each individual engages in the circulation of the content for her own satisfaction. People contact the perpetrator online individually. Unlike traditional justice where a person is punished, when the public seeks to act as vigilantes, there is no natural limit. The harassment continues so long as the content maintains its traction and new individuals are sufficiently outraged to click. For instance, in 2006, a 16 year old girl accused of theft of a smart phone receiving threatening phone calls from strangers,and had random strangers drive by her family home and shout “thief” as part of a social media campaign.

The consequences for the target can be extreme. A person publicly exposed may be ostracized from their community. They may lose their job. The online record of the behavior is eternal, accessible by prospective employers or friends: a severe outcome for offenses that often would not result in a criminal record. For vulnerable individuals online shaming can compound social difficulties, undermining any potential for rehabilitation.

Unlike punishment by the judicial system online shaming leaves no room for mitigation. The evidence of vile abuse on a train is rarely placed in context. The person filming does not undertake to ascertain if the subject is so unwell or vulnerable so as to make public humiliation disproportionate. No thought is given into whether the punishment will in fact reform the offender, or damage them further. Punishment and judgment are delivered immediately.

None of this is to romanticize the criminal justice system. Courts are often vehicles of injustice and reflective of abhorrent ideologies. Reporting from Missouri Ferguson has shown that Courts, in enforcing fines issued by Police officers for minor offences, are complicit in exploitation of the local black population. In the Australian Northern Territory Indigenous Australians appear before almost exclusively white Judges, and unsurprisingly continue to be incarcerated at a rate higher than blacks in apartheid South Africa.

The difference between the traditional system and the bourgeoning culture of online shaming is aspiration. The Court system allows each accused a hearing, to be represented, to put matters in mitigation, in the hope a Judge appraised of the facts can fix a punishment that expresses condemnation but permits rehabilitation. Courts seek to punish offenders for legislatively prescribed crimes based on predetermined standards, not the vagaries of public opinion.

Conclusion

Communal surveillance is antithetical to justice. It is ideological, capricious, and disproportionate. Nevertheless, our capacity to spy on each other is exponentially increasing. The community’s involvement in punishment will not recede. In these circumstances we should discuss, how do we fashion the democratization of punishment, to ensure it is also fair?

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