Surveillance- The Social Credit System and Foucault-I
You don’t know about me, but I’ll bet you’ll want to — Taylor Swift (22)
Introduction
This post is one part of the author’s study of surveillance, panopticonism and technocratic ‘solutions’ to human behaviour (the Social Credit system will be used as an illustrative example). In large parts, I have applied French philosopher Michel Foucault’s own genealogical historical analysis methodology where one sets out from a problem expressed in terms of today and traces how it emerged from an analysis of specific conflicts that arose in the past- an attempt has been made to reconnect events of the past that have shaped contemporary practices to prompt a more critical understanding of the latter. Historical materials have thus been used to analyse the present by tracing the forces that gave rise to the present to identify the conditions that drive the same. My intent is not to create an understanding of the past but to create a critical understanding of the present by using history (of which Foucault’s writings are also a part of) as a tool. Here, I use the Social Credit system as a phenomenon and attempt to place it within Foucault’s specific and distinct ideas on Surveillance and the resultant shift it causes in power dynamics. Modern day surveillance thus forms an integral part of this framework and thus, specific events of modern history are traced in this new light.
The draft Article 17 of the Swaraj (Constitution of India, 1895) Bill, The Fourth Amendment of the United States Constitution, George Orwell’s 1984- general warnings against state scrutiny into the individual’s personal sphere are littered across the vast spheres and intersections of law, literature and discourse. Notwithstanding the odd whistle-blower, there is very little understanding of the pervasiveness of surveillance architecture in the human life. The incidental ‘fruits’ of surveillance, generalised as ‘national security’, ‘prevention of crime’, and ‘improvement of trust’ are used as the payoffs to a minor infrastructural cost. These are projected as inherently ‘good’ and sophistication and intrusiveness of surveillance techniques are used as parameters to judge ‘effectiveness’. It transgresses the public/private divide where private entities often subject their subjects to the same, if not greater degree of surveillance and actively communicate both technology and data.
The threat of constant surveillance and the shift in power dynamics that it causes has been relegated to the margins of failed or failing totalitarian regimes and science fiction- this is the greatest disservice to the human intellect- data collection and processing is then seen as a mundane part of life and the exercise of acquisition of information is deemed innocuous. Something that best encapsulates the result of our complacency is the ‘Social Credit System’- simply put, it is a system where the data generated from sweeping and constant mass surveillance of human behaviour is stored, processed and ultimately leads to beneficial (ease of access to services etc) or adversarial (restrictions on travel) effects on individuals and populations.
I think greater surveillance and even a rudimentary social credit system is the greatest threat that the freedoms of the individual faces in the 21st Century. The lack of understanding of the shift in power dynamics only allows an enforcement of a discipline by the authority by mischaracterising the discourse by emphasis only on the administrative ease. This will cause the dehumanisation of a person from an individual to a subject. The price of freedom is eternal vigilance and it is a price I am willing to pay.
1. Surveillance
“Gentilmen let the Boy Barney pass and repass from the first of June till the 4 to Columbas MO for this date 1852” — Samuel Grove”
Modern surveillance can be traced to the rudimentary ‘slave pass’ system[1] in Virginia. It followed a simple idea- no slave was allowed to move from his plantation after a certain hour without a pass from his master. The ‘pass’ was a handwritten note which stated the name of the slave, the place where he was permitted to go and the period of validity of the note.[2] At the plantation level, slaves- no different from inventory were listed as ‘resources’ along with tools or land.[3] Slaves were subject to intrusive oversight where ‘owners’ monitored their actions and their productivity constantly. [4] The primary reason for the slave pass system was to restrict a slave’s movement which would make him more productive in the morning. However, the greater concern was the idea of a rebellion- by restricting mobility across plantations, they essentially sought to restrict communication, transportation and trade between slaves of same and different plantations. This made them more dependant on their ‘master’ and limited their ability to resist mistreatment and oppression thus ensuring compliance. The system was enforced by slave patrols (predecessor of modern police)- armed white men tasked with surveillance by flogging any slave found without a pass and returning him to his plantation for bounty.[5] The seemingly random nature of the patrols ensured a mental fear for the slaves who self-policed for fear of repercussions. This system however, could be beaten when slaves were literate enough to forge passes or when patrollers were illiterate so slaves could pass off any handwritten note as a pass. To counter this, states passed laws outlawing education of slaves and to prevent the latter issue, rudimentary technology like tin and brass badges[6] were issued as primitive numbered IDs- the predecessor of licenses and other verification- identification tools.
This illustrates the fundamentals of any surveillance system- a power asymmetry, an entitlement- legal or otherwise over a subject, an ability to ‘overwatch’ or supervise. This leads to the other essentials- a restriction of human freedom, a compulsion to comply at the risk of punishment and usage of law and technology to enforce the rigidity thus created. Significantly, it displays that the ultimate purpose is not mere overwatch or identification. Those are mere steps to the goal that is the abrogation of human autonomy.
The surveillance trend, unlike legal protections has kept pace with growth of technology. Usage of photography by law enforcement in the late 1800s started this trend.[7] The usage of biometrics began with Bertillonage[8]- a measurement and statistical reproduction of a declared criminal’s anthropological measurements for identification. This was furthered by the popularisation of different techniques of dactyloscopy- from William Herschel deploying inked handprints in Bengal[9] to ‘scientific’ classification and counting of papillary ridges by the Scotland Yard and eventually in New York.[10] Thus, photography was employed as a means to make an accused person more visible, made his classification easier and made him an easier target to ‘discipline’. The logical step that followed were attempts at maintaining registrations of entire populations- Buenos Aries[11] in Argentina mandated that the entire population submit fingerprints and photos with the Interior Ministry and the Military as debates raged in the other parts of the world advocating for the same for all identified ‘aliens’, sex workers, petty criminals and during World War I, for all dissidents who believed the war was a conflict between the rich and fought by the middle classes.[12] Dactyloscopy was also extensively used by employers[13] (civilians essentially) to enforce black lists against identified ‘radicals’- the shift from compulsory to voluntary fingerprinting was cursory due to the portrayal of the act as a civic duty. This culminated in Berkley in 1936 where the purported goal was to create a database. [14] In this coordinated effort, Police was aided by local businesses that gave discounts and other incentives to citizens who displayed their police issued ‘merit cards’ stating that they had been fingerprinted. [15] The Police merely said that it was done to monitor and ambiguous class of criminals, Marxists and radicals. Surveillance was used simply as a method to exercise control over those people seen as ‘undesirables.’
It is important to note two things here — Firstly that this was done in a complete legislative vacuum- there was no need nor desire for duly enacted legislation. Legislation in a Constitutional form of governance is subject to scrutiny of guaranteed rights by Courts of Law and thus these were ‘voluntary’ in nature. Secondly, one must note the presence of incentives for compliance. This was a shift from the ‘slave-pass’ era of flogging to ensure compliance -it displays that where an initially indirectly targeted measure requires the compliance of those not targeted, one simply needs illusory, short term ‘benefits’ to bait the entire population into acceptance of the unacceptable. These are thus the rudimentary origins of the Social Credit.
This incentive model for surveillance gained primacy with the passage of the Social Security Act in the United States which although initially had no issue with identification soon mandated the necessity for identification of those claiming benefits- requiring the registration and issuance of IDs. The system was criticised by the Republican opposition for setting up the building blocks of a ‘crypto-fascist’ regime.[16] Dehumanizingly, it reduced the entire identity of a person to a set of digits for certain apparent benefits. In 1939, an executive order was signed which gave the FBI access to this Social Security system in federal investigations.[17] Its usage became as indispensable as the AADHAAR program in India.[18] Refusal to provide this number resulted in reduced access to credit, rejections of applications and it was even used as an individual taxpayer ID. It followed the same computation techniques that the Nazi regime applied in its persecution of the Jews- IBM creation of tabulating machines which helped furnish highly detailed profiles of the German population by using eighty variable cards allowing for microtargeting of select subsets of Jews by storing large repositories of specific data on health, slave labour etc- the ID numbers eventually[19] finding a place on the forearms of those in the death camps.
In its usage in less extreme contexts, a centralised ID connected with all aspects of a person’s life containing information about their life, residence, employment and financial status waters down any informational or financial concepts of privacy an each freshly added source only has the ability to paint a more comprehensive profile of an individual without their consent or knowledge.
“The Internet is the most liberating tool for humanity ever invented, and also the best for surveillance. It’s not one or the other. It’s both.”- John Perry Barlow
Across the Internet, data surveillance techniques analyse data (qualitatively, any data that may be transmitted using the internet) in transit- as all electronic communication is at least partially supported by the internet, surveillance of the internet amounts to surveillance of all electronic communication.
One would expect the rule of law to act as a bulwark to salvage the natural, sometimes Constitutionally guaranteed rights of the citizen but it has either abdicated that role or actively encouraged its subversion. The ‘legal surveillance’ architecture is most visible in the United States.
A Presidential Executive Order from 1981 broadly authorises the collection of all information for the purposes deemed to be in interest of the broadly defined category of ‘national defence’.[20] Further amendments were made to this Executive Order which expanded the scope of ‘legal’ surveillance with regard to an even wider definition of ‘national security’.[21] The PATRIOT Act, a legislation enacted in 2001 is the next cornerstone. The act in Section 214 removes the statutory requirement for the government to prove that the surveillance target is “an agent of a foreign power” before obtaining a pen register/trap and trace order under the designated courts. The government can thus trace devices “for any investigation to gather foreign intelligence information,” without a showing that the device has been or will be used for activities that would jeopardize the National Interests of the United States. Section 216 of the Act expands[22] the class of the information that can be recorded by extending ‘pen register’ capacities to the Internet, which covers all kinds of electronic communication. Statutory definitions are kept vague with respect to the types of information that can be captured and are thus subject to broad interpretational results. Courts established under the Foreign Intelligence Surveillance Act mechanically compel private telecom and internet companies in complete secrecy under judicial sanction[23] to ‘continually produce’ electronic copies of call details and telephone metadata for phone calls. Information is classed as “metadata”, or transactional information, rather than communications. “Metadata” is also given a broad meaning with no provisions that curtail the scope. Duly established Courts in 2005 had ruled that that mobile location data that is, the nearest telecom tower a phone was connected to- essentially located in close proximity of, because of tower triangulation was also transactional data, and thus would also fall under the ambit of the order and this has accorded legitimacy for government surveillance over the years.[24] Even in the presence of a Federal Circuit bench holding the contrary opinion, the Security agency has not been deterred from its activities.[25] Metadata with its ambiguities thus includes personal information, which can build a more detailed profile about entire populations or more chillingly of individuals within that population.
Data mining thus along with knowledge discovery is correlated to create new facts or even make predictions about individuals. Metadata thus has redefined human existence in unpredictable ways. The creation of new knowledge about individuals is in particular problematic as this is an inference or a prediction that even the subject in question could not have made. The State thus converts[26] into an “information State” through greater assimilation of information in a way that information is described as the “lifeblood that sustains political, social, and business decisions”.
It may be relevant here to note that the intent of the authorities here was never to let the population be aware of the existence of these programs or the fact that the government regularly collects metadata in bulk from private entities under the PRISM program- even the legislation itself and leaked judicial orders[27] clearly mention that secrecy needs to be maintained in transfer and access of information- even the Court documents containing the names of the impleaded parties are kept secret. Thus, the intent to create a chilling effect of the subject population’s behaviour- essentially the eventual idea of a ‘self-policing’ is remarkably absent in this case unlike the previously described instances. However, the threat to individual liberty and the distinct possibility of an eventual chilling effect is still pertinent as mass collection of data is still an individual privacy risk both from abuses from state and maliciously inclined third-party actors. Commenting upon the role of a centralised Police as a direct agent of the sovereign, Foucault noted[28] that in order to exercise political power to ‘discipline’ the masses, Police had to be given the instrument of exhaustive and omnipresent surveillance power, capable of remaining invisible while gathering information about everything else- storing such information in ‘registers’ (i.e making a record of information gathered through surveillance) and the content of the surveillance generally had to do with forms of behaviour, attitudes, possibilities and suspicions as a permanent account of an individuals’ behaviour.
2. Social Credit
“If you want a picture of the future, imagine a boot stamping on a human face — forever.”- George Orwell, 1984
The Social Credit System of the kind seen in China is seen as the next logical leap in this process of greater surrender of individual rights. The proliferation of CCTV has certainly aided this- the transition from its strictly private usage to increasing usage by state authorities have made them effectively invisible by making the citizen an everyday subject of real time video surveillance often without his express consent.
In the Chinese programme, the idea of a ‘social credit’ is similar to the financial scoring systems from elsewhere in the world except that the Chinese ‘social credit’ score will cover a great number of personal factors beyond the ordinary financial data collection and analysis.[29] In China, the goals[30] of the system as promulgated by the State is to monitor the social, financial, moral and political behaviour of Chinese citizens and companies. One must pause to take note of the underlying implication. It starts on the assumption that the individual belongs entirely to the state and all responsibility of his behaviour belongs to the state and in furtherance of this role, the state has enacted the policy.
Three different models operate at present- Compliance scores in pilot cities, social credit scores by financial institutions and Blacklisting across the country.[31] The stated aims[32] are to provide the trustworthy with stated ‘rewards’ and discipline the ‘untrustworthy’. Paragraph 10 of the Preambular portion mentions implementation to begin from January of 2021 and an annual update of the catalogue. Pages 7- 13 place the system perfectly within the confines and the operation of various other laws and the Chinese Legal System while vaguely outlining the necessity for each ministry to have access to the database. Citizens are to be given a social credit ‘score’ that will fluctuate depending on the ‘acceptability’ of his behaviour. The sources of the information include[33] data gathered from traditional sources like government records on crime, finances, school registries but also internet data[34] such as search history, shopping preferences etc. Crucially, it relies on mass surveillance and facial recognition technology from video cameras installed in public places. The public blacklists operate after a decision by the Supreme People’s Court for people who defy binding judgements but it is now being used by other ministries to demarcate people who have violated rules like smoking in public. A central website makes the names of the blacklisted persons publicly available. This means that a violation of the law can lead to a variety of sanctions- regular ones to begin with but the perpetrator may subsequently be banned from flying or using public trains.[35] Mass surveillance programmes have aided another aspect of the Social Credit system in forty pilot cities across China authorised by provincial legislation.[36] The generalised usage of CCTVs, monitoring of internet traffic and elaborate requirements of ID registration especially in Xingang[37] and Tibet and the usage of the same along with facial recognition to publicly shame petty violations in areas like Shenzen[38] are some of the superficial examples of this category.
Suining and Rongchen give a glimpse[39] of what the future may hold- citizens in both pilot projects started out with 1000 Credit points but lose points for behaviours such as traffic violations, having a child without permission, protesting etc but could gain back points with ‘good’ behaviour- like taking are of elderly family members or praising the government on social media etc. Citizens are then categorised on basis points and their right to access private schools and employment and public services like transportation etc and rights to free movement and employment are determined- citizens are thus effectively differentiated into classes of citizens based on behaviour that the authority deems to be ‘good’ behaviour. The primary difference to note here is the presence of positive consequences that may follow from conformity- while this had been present unofficially in the Berkley example as stated above, it is different as this model in China has received official state adoption and is a notable departure from the negative ideas of conformity (where non compliance alone results in punishment).
Note- Needless to say, as with most of my work, if the reader thinks this is rather neat and is tempted to cut paste portions from this piece, flattered though I may be, I must discourage the same as this work is an abridged version of my self assigned Jurisprudence paper and thus has been through Turnitin. I have extensively (and painstakingly) referenced all material I have consulted, use ‘em!
[1] Connie Hassett-Walker, How You Start is How You Finish? The Slave Patrol and Jim Crow Origins of Policing, January 11, 2021, available at-https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rights-reimagining-policing/how-you-start-is-how-you-finish/ (Last visited on 23rd September 2021)
[2] Christian Parenti, The Soft Cage: Surveillance in America, 19 (2003)
[3] “Washington’s Slave List, June 1799,” Founders Online, National Archives, https://founders.archives.gov/documents/Washington/06-04-02-0405 [Original source: The Papers of George Washington, Retirement Series, vol. 4, 20 April 1799–13 December 1799, ed. W. W. Abbot. Charlottesville: University Press of Virginia, 1999, pp. 527–542.]
[4] Thomas Affleck, The Cotton Plantation Record and Account Book, №1: Suitable for a Force of 40 Hands, Or Under, (5th ed, 1854)
[5] Jill Lepore, The Invention of the Police, July 13, 2020, available at- https://www.newyorker.com/magazine/2020/07/20/the-invention-of-the-police (Last visited on 23rd September 2021)
[6] Christian Parenti, The Soft Cage: Surveillance in America, 21 (2003)
[7] Jens Jäger, Photography: a means of surveillance? Judicial photography, 1850 to 1900, 27–51, Crime, Histoire & Sociétés /Crime, History & Societies, Vol. 5, n°1 | (2001)
[8] Pierre Piazza, Bertillonage: the international circulation of practices and technologies of a system of forensic identification, Criminocorpus [Online], Identification, contrôle et surveillance des personnes, (18 April 2011)
[9] Sir William J Herschel, The Origin of Finger-Printing, 98, Nature, 268 (1916)
[10] Myers, H. J. II, The First Complete and Authentic History of Identification in the United States, 3–31, Finger Print and Ident. Mag. 20 (4), (1938)
[11] Cyril John Polson, Finger Prints and Finger Printing: An Historical Study, 696, Crim. L. & Criminology, 41 J., 690 (1950–1951)
[12] Wendy McElroy, World War I and the Suppression of Dissent, April 1, 2012, available at — https://www.independent.org/news/article.asp?id=1207 (Last visited on 24th September 2021)
[13] Parenti, supra, note 56
[14] Maxwell Lehman, Thumbs down! The fingerprint menace to civil liberties, New York: American Civil Liberties Union (1938)
[15] Parenti, supra, note 57
[16] Staff Reporter, HAMILTON PREDICTS TAGS FOR WORKERS; Social Security Board Has Already Studied Identification Disks, He Says. 20,000 AT BOSTON RALLY Republican Chairman Warns Them hat New Deal Would Regiment 27,000,000, New York Times (Boston) Section N, Page 5 November 1, 1936
[17] Carolyn Puckett, The Story of the Social Security Number, Social Security Bulletin Vol. 69, №2 (2009)
[18] Ramesh Chakrapani, All-pervasive Aadhaar, April 28, 2017, available at- https://frontline.thehindu.com/other/data-card/allpervasive-aadhaar/article9630601.ece (Last visited on September 24, 2021)
[19] United States Holocaust Memorial Museum, Holocaust Encyclopaedia- Tattoos and Numbers: The System of Identifying Prisoners at Auschwitz, available at- https://encyclopedia.ushmm.org/content/en/article/tattoos-and-numbers-the-system-of-identifying-prisoners-at-auschwitz (Last visited on September 24 2021)
[20] Executive Office of the President of the United States of America, United States intelligence activities, Executive Order 12333, (December 4, 1981) (United States)
[21] Executive Office of the President of the United States of America, Further Amendments to Executive Order 12333, United States Intelligence Activities, Executive Order 13470, (July 30, 2008) (United States)
[22] Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act (2001) §216
[23] In re Application of The Federal Bureau of Investigation for an order requiring the production of tangible things from Verizon Business Network Services Inc. on behalf of MCI services Inc. D/B/A Verizon Business Services, TOP SECRET//SI//NO FORN (United States Foreign Intelligence Surveillance Court, Washington DC) (Unreported) (United States of America)
[24] Ryan Lizza, The Metadata Program in Eleven Documents, December 31, 2013, available at- https://www.newyorker.com/news/daily-comment/the-metadata-program-in-eleven-documents (Last visited on September 24, 2021)
[25] Jennifer Granick, New Ruling Shows the NSA Can’t Legally Justify Its Phone Spying Anymore, June 13 2014, available at- https://www.wired.com/2014/06/davis-undermines-metadata/ (Last visited on September 24, 2021)
[26] Christina P. Moniodis, 154, Moving from Nixon to NASA: Privacy’s Second Strand — A Right to Informational Privacy, Yale Journal of Law and Technology (2012), Vol. 15 (1)
[27] In re Application of The Federal Bureau of Investigation for an order requiring the production of tangible things from Verizon Business Network Services Inc. on behalf of MCI services Inc. D/B/A Verizon Business Services, TOP SECRET//SI//NO FORN (United States Foreign Intelligence Surveillance Court, Washington DC) (Unreported) (United States of America) ¶4
[28] Michel Foucault, Discipline and Punish, 214 (translated by Alan Sheridan, 2nd Edition, 1995)
[29] Adam Greenfield, China’s Dystopian Tech Could Be Contagious, 14 February 2018, available at-https://www.theatlantic.com/technology/archive/2018/02/chinas-dangerous-dream-of-urban-control/553097/ (Last visited on 24th September 2021)
[30] Charles Clover, China: When big data meets big brother, January 20, 2016, available at- https://www.ft.com/content/b5b13a5e-b847-11e5-b151-8e15c9a029fb (Last visited on September 24, 2021)
[31] Daithí Mac Síthigh and Mathias Siem, The Chinese Social Credit System; A model for other countries? 12 (European University Institute, Department of Law Working papers 2019/01) available at- https://cadmus.eui.eu/bitstream/handle/1814/60424/LAW_2019_01.pdf (Last accessed on September 24, 2021)
[32] 国公共信用信息基础目录（2021 年版 征求意见稿）, National Development and Reform Commission China, available at- https://www.ndrc.gov.cn/yjzxDownload/20210713fj1.pdf translation available at- https://translate.googleusercontent.com/translate_c?hl=en&sl=zh-CN&tl=en&prev=search&u=http://www.gov.cn/xinwen/2021-07/18/5625819/files/9ba6287780544761903da39892e3ea6f.pdf&usg=ALkJrhgYOi6EIcQiEvRy1NeCHYnakPbNbw (Last accessed on September 24, 2021)
[33] 国失信惩戒措施基础清单（2021 年版 征求意见稿）, National Development and Reform Commission China, available at- https://www.ndrc.gov.cn/yjzxDownload/20210713fj2.pdf translation available at- https://translate.googleusercontent.com/translate_c?hl=en&sl=zh-CN&tl=en&prev=search&u=http://www.gov.cn/xinwen/2021-07/18/5625819/files/be6300e225cb4415a627dc7c5a14d367.pdf&usg=ALkJrhgFiwQrkuK3Pki55O6n_xhITNcCWg (Last accessed on September 24, 2021)
[34] Michael Persson, Marije Vlaskamp & Fokke Obbema, China rates its own citizens — including online behaviour, April 25, 2015, available at- https://www.volkskrant.nl/nieuws-achtergrond/china-rates-its-own-citizens-including-online-behaviour~b4c0ae0e/ (Last visited on September 24, 2021)
[35] Alexandra Ma, China ranks citizens with a social credit system- here’s what you can do wrong and how you can be punished, May 08, 2018, available at- https://www.independent.co.uk/life-style/gadgets-and-tech/china-social-credit-system-punishments-rewards-explained-a8297486.html (Last visited on September 24, 2021)
[36] Louise Lucas & Emily Feng, Inside China’s surveillance state, July 20, 2018, available at- https://www.ft.com/content/2182eebe-8a17-11e8-bf9e-8771d5404543 (Last accessed on September 24, 2021)
[37] Wall Street Journal, Twelve Days in Xinjiang: How China’s Surveillance State Overwhelms Daily Life, December 19, 2017, available at- https://www.wsj.com/articles/twelve-days-in-xinjiang-how-chinas-surveillance-state-overwhelms-daily-life-151370035 (Last visited on
[38] Sithigh & Siem, supra, note 14
[39] Mareike Ohlberg, Shazeda Ahmed & Bertram Lang, 10 Central Planning, Local Experiments: The complex
implementation of China’s Social Credit System, 12 December 2017, available at- https://merics.org/sites/default/files/2020-04/171212_China_Monitor_43_Social_Credit_System_Implementation.pdf (Last visited on September 24, 2021)
