Simcha Walfish
Recent graduate, McGill University, Faculty of Law
May 1, 2020
In late 2017, after several migrants died in detention at facilities across Canada, the Canada Border Services Agency (CBSA) announced a new plan: instead of remaining in detention, eligible migrants could instead be subject to voice and GPS surveillance. What is the meaning of this change? This probe will look for answers to this question through the lens of Jeremy Bentham’s panopticon and Andrejevic and Burdon’s sensor society, arguing that this new form of surveillance offers migrants a dubious choice: to trade openly coercive exercises of state power over migrants for new practices of self-surveillance.
The Sensing Panopticon
As digital surveillance has advanced in recent decades, the 18th century utilitarian philosopher Jeremy Bentham’s idea of the panopticon has reemerged as a useful model for theorizing the mode in which states (and capital) keep an eye on the public. The panopticon is a prison design in which the guards can see all the prisoners at once, without themselves being seen by the prisoners, leading the latter to feel that they are always being watched:
The Building circular – an iron cage, glazed – a glass lantern about the size of Ranelagh – The Prisoners in their Cells, occupying the Circumference – The Officers, the Centre. By Blinds, and other contrivances, the Inspectors concealed from the observation of the Prisoners: hence the sentiment of a sort of invisible omnipresence. – The whole circuit reviewable with little, or, if necessary, without any, change of place.
Perceiving (or simply suspecting) that they are under constant surveillance, the prisoners change their behavior, always acting as if they are observed.
In a study on the self-surveillance practices of South Asian migrants in Greece, Reena Kukreja discusses the twentieth-century French philosopher Michel Foucault’s take on the panopticon. As a disciplinary power that can be enforced more economically and efficiently than “overt displays of punishment and disciplining,” the panopticon is what Foucault called “a diagram of a mechanism of power reduced to its ideal form.” Kukreja describes it as
a metaphor for the exercise of social control over individuals in society: to regulate and train people to behave in a desired manner with minimal overt force. In a panoptic society, discipline can be and is imposed invisibly over a large number of bodies by having individuals internalise the feeling of constant and invisible surveillance, even in its absence, and learn to regulate themselves.
In a landmark paper, Andrejevic and Burdon argue that, if we are to understand the role of the panopticon in the lives of migrants – and indeed most people – today, then the analysis needs to shift its focus from the surveillance state, actively monitoring its population, to what they call the “sensor society.” Andrejevic and Burdon describe this shift as involving “the increasing passive-ication of interactivity.” With sensors embedded in everything from our phones to our fridges, watches, automatic vacuum cleaners, cars, et cetera, the sensor society is one in which “the once relatively exceptional and discrete character of monitoring becomes the rule, and … the monitoring infrastructure allows for passive, distributed, always-on data collection.”
Jeroen van den Hoven & Pieter e. Vermaas describe the changes this sensor society has made to received notions of surveillance. With sensors tracking our every move, the panopticon has been decentralized from the central observation tower into
the constant and systematic, local, and distributed informational relations of an individual with its environment. Carpets could log footsteps and the soles of your shoes could produce a report at the end of the day of where you have been. Furthermore, and perhaps more importantly, the architecture of new nano-technology will obviously not be that of a dome-shaped prison which is easy to recognize as such and which clearly signals and symbolizes centralized control and monitoring of those subject to its regime. It will involve many invisible ubiquitous and ambient applications, with new and unexpected properties to users that can be used as instruments of surveillance, surreptitious tracking and tracing. This surveillance will be continuous but need not be synoptic, setting people free from the centralized dome, but not outside the reach of decentralized control.
To a certain extent, the sensor society is egalitarian—everyone is caught up in its sensing web—but, for migrants, the sensor goes a step further into the intimacy of life, applying sensors to the body, to hear the migrant, to feel them.
Hearing and touching migrants as an alternative to detention
Immigration detention is a highly coercive technique, incarcerating non-citizens in jails or jail-like facilities. As Stephanie Silverman writes, “immigration detainees are not being held for criminal infractions. Rather, these are civil, administrative legal grounds. The Canadian government detained approximately 6,251 people in 2016-2017, with 439 people being held for more than 90 days.” Immigration detention is known to cause serious harm to detainees and, as Silverman writes “For years following periods of detention, people report depression, demoralization, concentration and memory disturbances, and persistent anxiety, all of which are doubly disturbing in light of the high rates of release back into the community.”
If immigration detention is highly coercive incarceration, causing serious mental health issues, what then is immigration surveillance and what are its effects?
In 2018 the CBSA started to roll-out an expanded Alternatives to Detention program “to provide risk-based, nationally consistent programming to individuals deemed suitable for release from detention.” In this program, “officers have access to an expanded set of tools and programs that will enable them to more effectively manage individual needs while ensuring public safety and program integrity.”
This program purported to replace detention for certain migrants with electronic surveillance in the community, including a “national Voice Reporting program that will enable individuals to comply with reporting conditions imposed by the CBSA or the Immigration and Refugee Board (IRB), by using voice biometrics to report to the CBSA at a prescribed interval” and an “Electronic Monitoring program in the Greater Toronto Area region that uses GPS and Radio Frequency to monitor an individual’s whereabouts.”
The voice reporting program listens to migrants’ voices, linking the sound of their voice to their physical location.
The electronic monitoring system is a tagging system, “built upon real-time location data collected and analysed in a central facility and reported to regional staff to pursue for enforcement as appropriate.” The similarities to tagging systems used in the criminal justice system are not accidental: “The Agency has partnered with the Correctional Service of Canada (CSC) to deliver the technology, using the systems and resources already available through CSC.” This form of overt surveillance can also lead to new forms of self-surveillance. As migrants adapt to a new reality knowing they have a sensor attached to their bodies, recording their every move, this will have an effect on the choices they make, on every movement they take, wondering how it will be perceived by their new criminalizing appendage.
Given the awful nature of immigration detention, any reduction in its use is certainly positive. But, as Silverman argues, the plan has some seriously troubling elements. For one, these biometric mechanisms are borrowed directly from the criminal justice system, reflecting “the encroachment of criminal justice norms into the immigration and asylum sector. They are part of the global trend of criminalizing border-crossers.” While we can also argue that this form of surveillance is harmful to those involved with the criminal justice system, it is especially harmful in this context, where those placed under surveillance have not even been accused of a crime.
Nor is it necessarily more humane. This form of tagging has been used before, notably on people subject to a security certificate. Silverman writes that some former detainees and their families “were so traumatized by the monitoring that some of the men actually requested a transfer back to prison.”
Deportability in the Panopticon
These technologies offer migrants an alternative to detention but not freedom. They can trade their guards for a form of surveillance and self-surveillance that can run just as deep.
The effects of this biometric voice surveillance and GPS monitoring must be understood in the context of what Kukreja calls the “disciplinary power of deportability.” Faced with the ever-present threat of deportation, migrants self-surveil, isolating themselves, moving to the shadows. Kukreja argues that “the Foucauldian theorisation of biopolitics of disciplinary power, and, in particular, that of the panoptic schema with its mechanism of self-surveillance” is useful to explain how “deportability coerces undocumented migrants into becoming co-producers of their own disciplining and surveillance.”
Writing about migrant South Asian workers in Greece, Kukreja describes a process of making oneself invisible performed by migrants as continuous with state coercion, contending
that, initially, the men adopt the disciplinary schema of self-surveillance and invisibility out of fear of arrest and deportation, but as time goes by and as the men experience racism and xenophobia, it gets embedded as a racialized discourse of inferiority within their minds. The schema continues to operate at all times and is based on the fact that ‘illegality’ is embodied by their racialized bodies. This self-disciplining to ensure their invisibility from the public-scape, after the need for their labouring bodies is done for the day, reduces the need for overtly coercive displays of discipline.
Kukreja writes that this process of self-surveillance hinders the ability of local Greeks and migrants to build community, making them unable to “bridge the gap and enact political acts of solidarity that are motivated by justice and rights for all, irrespective of status.” Will compelling migrants to trade the walls of immigration detention for electronic surveillance have the same effect? Silverman argues it will, that tagging criminalizes and stigmatizes migrants, alienating them from the community.
True Alternatives to Detention
According to Silverman, electronic monitoring is not a true alternative to detention: “The true alternative to immigration detention is release. Living in the community can be coupled with free access to high-quality legal counsel and social welfare services for a financial cost that is much lower than imprisonment.” Perhaps Bentham would have approved of Silverman’s argument based on cost – less pain to the state. But the issue raised by Silverman goes beyond calculation. It is a matter of fundamental human rights.
References:
Andrejevic, M., Burdon, M., 2015. Defining the sensor society. Television & New Media 16, 19–36.
Coffey, G.J., Kaplan, I., Sampson, R.C., Tucci, M.M., 2010. The meaning and mental health consequences of long-term immigration detention for people seeking asylum. Social science & medicine 70, 2070–2079.
Government of Canada, C.B.S.A., 2020. National Immigration Detention Framework. URL https://www.cbsa-asfc.gc.ca/security-securite/detent/nidf-cndi-eng.html (accessed 4.28.20).
Government of Canada, C.B.S.A., 2018a. Electronic Monitoring. URL https://www.cbsa-asfc.gc.ca/security-securite/detent/em-se-eng.html (accessed 4.28.20).
Government of Canada, C.B.S.A., 2018b. Voice Reporting. URL https://www.cbsa-asfc.gc.ca/security-securite/detent/vr-rv-eng.html (accessed 4.28.20).
Kukreja, R., 2019. Visible yet invisible: the disciplinary mechanism of self-surveillance among undocumented South Asian male migrants in rural Greece. Journal of Ethnic and Migration Studies 1–17.
Silverman, S.J., 2018. Electronically monitoring migrants treats them like criminals. The Conversation. URL http://theconversation.com/electronically-monitoring-migrants-treats-them-like-criminals-90521.
Van den Hoven, J., Vermaas, P.E., 2007. Nano-technology and privacy: On continuous surveillance outside the panopticon. Journal of Medicine and Philosophy 32, 283–297.
Further Reading:
The University College London’s “Panopticam” Project
Paul Sillers, Airport Biometrics: How New Customs Technology is Going to Make Security Queues a Thing of the Past
Thomas McMullan, The power of privacy: what does the panopticon mean in the age of digital surveillance?
Owen Bowcott, Home Office plans to deny immigrants access to data ‘are illegal’
All links accessed on April 24, 2020
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