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State of Surveillance: Should Your Car Be Able to Call the Cops?

close-up photograph of car headlight

In June, 2022, Alan McShane from Newcastle, England was heading home after a night drinking and watching his favorite football club at the local pub when he clipped a curb and his airbags were activated. The Mercedes EQ company car that he was driving immediately called emergency services, a feature that has come standard on the vehicle since 2014. A sobriety test administered by the police revealed that the man’s blood alcohol content was well above the legal limit. He was fined over 1,500 pounds and lost his driving privileges for 25 months.

No one observed Mr. McShane driving erratically. He did not injure anyone or attract any attention to himself. Were it not for the actions of his vehicle, Mr. McShane may very well have arrived home safely and without significant incident.

Modern technology has rapidly and dramatically changed the landscape when it comes to privacy. This is just one case among many which demonstrates that technology may also pose threats to our rights against self-incrimination.

There are compelling reasons to have technology of this type in one’s vehicle. It is just one more step in a growing trend toward making getting behind the wheel safer. In the recent past, people didn’t have cell phones to use in case of an emergency; if a person got in a car accident and became stranded, they would have to simply hope that another motorist would find them and be willing to help them. However, this significant improvement to safety isn’t always accessible during a crash. One’s phone may not be within arm’s reach and during serious car accidents a person may be pinned down and unable to move. Driving a car that immediately contacts emergency services when it detects the occurrence of an accident may often be the difference between life and death.

Advocates of this technology argue that a person simply doesn’t have the right to drive drunk. It may be the case that under many circumstances a person is free to gauge the amount of risk that is associated with their choices and then choose for themselves the amount that they are willing to take on. This simply isn’t true when it comes to risk that affects others in serious ways.

A person doesn’t have the right to just cross their fingers and hope for the best — in this case to simply trust that they don’t happen to encounter another living being while driving impaired.

When people callously rely on luck when it comes to driving under the influence, living beings can die or be injured in such a way that their lives are involuntarily altered forever. Nevertheless, many people simply do not think about the well-being of others when they make their choices. Since this is the case, some argue that if technology can protect others from the selfish and reckless actions of those who can’t be bothered to consider interests other than their own, it should.

Others argue that we can’t let technology turn any country into a police state. Though such people agree that there are clear safety advantages to technology that can help a person in the event of an accident, this particular technology does more than that — it serves as a non-sentient witness against the driver. This radically changes the role of the car. A vehicle may once have been viewed as a tool operated by a person — a temporary extension of that person’s body. Often cars used as tools in this way are the property of their operators. Until now, a person’s own property hasn’t been in the position to turn them in. Instead, if a police officer wanted information about some piece of a person’s body, they’d need a search warrant. This technology removes the element of choice on behalf of the individual when it comes to the question of whether they want to get the police involved or to implicate themselves in a crime.

This is far from the only technology we have to be worried about when it comes to police encroachment into our lives and privacy. Our very movement through our communities can be tracked by Google and potentially shared with police if we agree to turn location services on when using our phones.

Do we really have a meaningful expectation of privacy when all of the devices we use as extensions of our bodies are accessible to the police?

Nor is it only the police that have access to this information. In ways that are often unknown to the customer, information about them is frequently collected and used by corporations and then manipulated to motivate that customer to spend more and more money on additional products and services. Our technology isn’t working only for us, it’s also working for corporations and the government, sometimes in ways that pretty clearly run counter to our best interests. Some argue that a product on which a person spends their own hard-earned money simply shouldn’t be able to do any of this.

What’s more, critics argue that the only conditions under which technology should be able to share important information with any third party is if the owner has provided fully free and informed consent. Such critics argue that what passes for consent in these cases is nowhere near what would be required to meet this standard.

Accepting a long list of terms and conditions written in legalese while searching for crockpot recipes at the grocery store isn’t consenting to allowing police access to knowledge about your location.

Turning a key in the ignition (or, more and more often, simply pressing an ignition button) does not constitute consent to abandon one’s rights against self-incrimination or to make law enforcement aware of one’s blood alcohol content.

Advocates of such technology argue in response that technology has always been used as important evidence in criminal cases. For instance, people must be careful what they do in public, lest it be captured on surveillance cameras. People’s telephone usage has been used against them since telephones were invented. If one does not want technology used against them in court, one shouldn’t use technology as part of the commission of a crime.

In response, critics argue that, as technology develops, it has the potential to erode our fourth amendment rights against unlawful search and seizure and our fifth amendment rights against self-incrimination to the point of meaninglessness. Given our track record in this country, this erosion of rights is likely to disproportionately affect marginalized and oppressed populations. It is time now to discuss principled places to draw defensible lines that protect important democratic values.

States of Exception

photograph of Chechpoint Charlie memorial site today

Now, many weeks into the rolling global coronavirus outbreaks, large-scale community lockdowns, and broad economic shutdowns; through a plethora of views on what the longer-term outcomes of this situation may be, it is clear that we are living through exceptional times.

Globally, as governments scramble with varying degrees of success to get a hold of the crisis, many countries have declared states of emergency.

Emergency decrees involve assuming certain types of exceptional powers by a government for the duration of a national emergency. Certain rights and civil liberties are curtailed and the protection of certain basic rights is suspended in order to ameliorate the threat.

Currently, in response to the global coronavirus pandemic, roughly one third of the world’s 7.5 billion people are in lockdown or under some form of ‘physical distancing’ restriction on free movement and association. In many areas authorities are enforcing curtailments.

We know from infectious disease experts that these measures are essential – the human population has no immunity to this novel coronavirus and a vaccine or effective treatment may be some way off. The only strategy we have is halting its ability to spread by our behavior.

Nevertheless, the question of how states of emergency are instituted and maintained raises important ethical questions in which the relationship of the state to its citizens is at issue.

Emergency decrees are quite obviously a potential problem in places where authoritarian governments and heads of state are already actively seeking means to extend or consolidate power, and for whom emergency decrees represent an opportunity to legitimize extraordinary levels of state coercion and control.

But even in the most “functional democracies” civil libertarians are counseling us to be vigilant. Even where people recognize the necessity of social distancing and accept the curtailments that states of emergency place them under, it is vitally important to remain conversant with the pressures this puts on our political and social order.

The modern democratic state is founded on ethical principles of rights and personal/individual freedoms. It gains legitimacy from democratic participation of citizens, and is based on a concept of the ‘social contract’ in which there is a tacit agreement by individuals to submit to the sovereign or state. The rule of law offers individual protection of rights and freedoms and endeavors to provide public goods like social harmony.

So the modern democratic state is built on the (ethical) notion that individuals have rights and duties in respect of each other. These rights and duties are mediated by the state, so that individuals have rights and duties in respect of the state under the social contract. The social contract is submission to, and protection under, the rule of law.

The primary function of the state should be to strike a balance between the ethical imperatives of freedom and ‘common good, as the rule of law.

Under what is described by Carl Schmitt in legal theory as a ‘state of exception,’ the sovereign possesses the ability to transcend the rule of law for the public good.

What is the ethical character of the state of exception? States of emergency or states of exception put a certain pressure on the social contract and represent an ethically dubious space.

The particular concerns that civil libertarians have around the use of emergency decrees all converge on this question of what sort of ethical zone a state of exception is, as a zone where the contract has to be temporarily renegotiated and a new balance has to be struck between individual freedom and common good.

There is a general concern that such a balance should err on the side of protecting privacy, freedom of expression, and other basic tenets of liberal democracy.

The important political and ethical question at the center of the state of exception is: how does the exception relate to the norm?

If the norm is the rule of law, then is the state of exception to be inscribed within it, and curtailed by it, or does the state of exception itself stand outside the rule of law?

In the first case, the state of exception is ‘built in’ to the state – so that checks and controls are placed upon exceptional state measures.

But if this is the case, then it is hard to see how it remains exceptional rather than becoming the norm, since building the exception into the state itself leads either to an infinite regress (by seeking exceptions to the exception), or cancels out the exception altogether by constitutionally inscribing the exception into the state as the norm.

In the second case, the state of exception is ‘extra-juridical’ in character – according to the argument that it is not desirable to control executive action in emergency with standard judicial accountability mechanisms.

But here, state power begins to exceed state power, so to speak, and not being subject to juridical order it represents a zone wholly external to the rule of law and the protections and rights and responsibilities that the rule of law enshrines. It is therefore difficult to see how the social contract can be said to hold under such a situation.

If the sovereign’s exceptional decree is not subject to constitutional constraint, the power to decide on the state of exception is therefore the power to decide what should count as a state of exception, potentially maximizing the state’s capacity to function outside the rule of law.

The Italian philosopher, Georgio Agamben, has argued that the state of exception is a zone which is not properly ‘internal’ nor ‘external’ to the state, but represents a kind of political, juridical, and ethical gray area where the distinctions between ‘inside’ and ‘outside’ are blurred, and that it in fact represents a realm of human activity not subject to the rule of law.

While there may not be sufficient evidence for Agamben’s claim that the modern democratic state is in a permanent state of exception, this accompanying claim bears thinking about: The state of exception assumes a fictitious political character in which the vocabulary of war is maintained, to justify recourse to government powers. Agamben believes the state of exception is a fiction sustained through military metaphor.

I do not here claim that the current emergency decrees across the world are fictions, yet it bears noticing that vocabularies of war are certainly sustaining them.

For Agamben, the stakes are high, and the danger is the slow disappearance of meaningful political action, because the attempt to encompass states of exception into the rule of law by legitimizing them represents a recognition of what is outside the law, and prompts sovereign attempts to encompass that very outside within the law. As a legal category, the state of exception therefore extends and completes the law’s empire.

What, then, is the peculiar ethical space of a state of exception, and what does that mean for us?

It is unclear what relation the exception has to normality, and what relation it has to the rule of law. Part of the point is about the possible erosion of civil liberties, but Agamben’s deeper worry about the slow disappearance of meaningful political action suggests that even as we remain committed to the truly monumental global effort to stem the tide of the coronavirus pandemic, we still need to pay attention to the pressures that government control of these measures places on the social contract between the state and its citizens, and to what it means for political discourse.

Questions on the Ethics of Triage, Posed by a Sub-Saharan Ant

an image of an anthill

In a new study published in Proceedings of the Royal Society B, behavioral ecologist Erik Frank at the University of Lausanne in Switzerland and his colleagues discuss their findings that a species of sub-Saharan ants bring their wounded hive-mates back to the colony after a termite hunt. This practice of not leaving wounded ants behind is noteworthy on its own, but Frank and fellow behavioral ecologists note that the Matabele ants (Megaponera analis) engage in triage judgments to determine which injured ants are worth or possible to save–not all living wounded are brought back to the nest for treatment.

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