Liberal Democratic Surveillance: Rules, Legitimacy and the Institutionalisation of Domination Matthew Hall PhD Politics Royal Holloway, University of London 1 Declaration of Authorship I, Matthew Hall, hereby declare that this thesis and the work presented in it is entirely my own. Where I have consulted the work of others, this is always clearly stated. Signed: M. Hall Date: 27/06/2017 2 Abstract The proliferation of public debate around surveillance over the past couple of decades has been marked by defeat for those objecting to it. This thesis sets out to understand not, what harms surveillance brings to values held dear to liberal democracy - like privacy, liberty and political rights to protest - but instead, why it is that surveillance is so widespread in societies that value these things. Most public and liberal objections to surveillance commonly seek to use liberal values like privacy and liberty on the one hand, and democratic values such as equality on the other, to shield against the harms that surveillance can bring. Surveillance is seen broadly as an external harm to liberal and democratic values, and commonly the task of study is to identify instances where surveillance is perceived to be going wrong, being excessively harmful, being used disproportionately, or is mistaken. These kinds of common objections, confident in the role liberal values can play, implicitly hold that surveillance, when properly limited and justified, is nothing to be fearful of. I argue instead that liberal democratic values are implicated in surveillance, not independent protections against it. If rules govern how liberal democratic values are protected and/or violated then surveillance, as a ‘technique for securing full compliance with a given set of institutional rules’ (as I will define it), is inextricably part of the institutionalisation of liberal and democratic values. Drawing on ‘realist’ insights into institutional rule making, I seek to explain how value-laden rules, which guide surveillance into practice, are politically contested. If we want to understand the expansion of surveillance, and over whom it is most harmfully applied, we need to understand the politics behind the rules that surveillance enforces. 3 Table of Abbreviation ____________________________________________ 5 Introduction ____________________________________________________ 6 1. Getting Real About Surveillance __________________________________________ 6 i) Surveillance Concerns ________________________________________________ 9 ii) Other Approaches: Surveillance Studies and Governmentality _______________ 18 iii) My Argument _____________________________________________________ 33 iv) Structure ________________________________________________________ 46 2. My Approach: Realism, Rules, Politics and Surveillance ______________________ 52 Chapter 1 - How We Look at Surveillance __________________________ 69 1) The Spread of Surveillance: What about Privacy? ________________________ 70 2) Surveillance Creep: EQuality Prejudice and Bias in Surveillance ______________ 77 3) Surveillance and ‘The Mistake’ ________________________________________ 85 Chapter 2 - Surveillance in Liberal Democracy: ‘Legitimate’ and Dominating ___________________________________________________ 94 1. Legitimising Surveillance _______________________________________________ 97 2. Surveillance at the foundations of liberal democracy _______________________ 109 3. Surveillance and domination __________________________________________ 126 Chapter 3 - A Poor Man’s Politics: Welfare Claimants, Surveillance and Domination __________________________________________________ 137 1. A New Deal in Welfare Provision; Terms and Conditions Apply _______________ 143 i) Fairness and Conditionality in welfare surveillance _______________________ 143 ii) Norm Enforcement and the ‘engineering of consent’ for surveillance ________ 150 iii) “Those who tell the stories rule the world”: Legitimation Stories for Liberal Democracy ________________________________________________________ 160 2. Who Accepts the Welfare Deal? _______________________________________ 168 i) Is it possible for welfare claimants to accept, or reject, welfare surveillance? _ 168 ii) “We” The People; Who is the ‘us’ that accepts the legitimacy of surveillance? _ 175 Chapter 4 - Surveillance, the Border and Liberal Democratic Citizenship185 1. The Liberal Democratic State We Are In: The Surveillance TechniQues of Access and Exclusion ____________________________________________________________ 192 2. “UneQuals Will Not Be Treated EQually”: De-Politicisation, Surveillance and Domination. _________________________________________________________ 202 3. Challenging the domination of surveilled citizenship: Politicising the rights of the rightless. ____________________________________________________________ 213 Chapter 5 - Dissent Under Surveillance: Protest and Policing _________ 223 1. You have the right to protest: Surveillance and the incapacitation of political rights. ___________________________________________________________________ 232 2. Democracy, Liberalism and Legitimation. ________________________________ 239 i) Reconciling Democracy and Liberalism ‘Legitimately’ _____________________ 239 ii) –The creation of legitimacy and illegitimacy through policing strategies and surveillance. _______________________________________________________ 243 3. Publicly justifying surveillance of protest: What about Rights to protest? _______ 252 Conclusion ___________________________________________________ 263 BIBLIOGRAPHY _____________________________________________ 285 4 Table of Abbreviation ANPR – Automatic Number Plate Recognition BDA – Big Data Analytics BLD - Basic Legitimation Demand CTP- Critical Theory Principle DWP – Department of Work and Pensions ECHR - European Convention on Human Rights ESA - Employment and Support Allowance FIT - Forward Intelligence Team GCHQ – Government Communication Headquarters IP Bill - The Investigatory Powers Act Bill JIG - Joint Intelligence Group JTRIG - Joint Threat Research Intelligence Group NPOI - National Public Order Intelligence Unity NSA – National Security Agency NDEU - National Domestic Extremism Unit OW - Ontario Works PSYOPs - Psychological Operations RIPA - The Regulation of Investigatory Powers Act SDS - Special Demonstration Squad SOCMINT - Social Media Intelligence SIS - Security and Intelligence Service UKBA – United Kingdom Border Agency WTO – World Trade Organisation 5 Introduction 1. Getting Real About Surveillance This thesis arose out of a sense that something was awry with the manner and extent to which surveillance is challenged in liberal democracies. Surveillance seemingly spreads unhindered throughout liberal democratic society in a manner that traduces values cherished by these societies. Not only was I convinced that values such as liberty, equality and privacy were being offended by surveillance. Rather, the following question also demanded an answer: in a society – the United Kingdom – that so highly values such things, how could it be the case that these values were being pervasively violated so comprehensively by surveillance, in so many instances? Insofar as the proliferation of public debate around surveillance over the past couple of decades has been overwhelmingly marked by defeat for those objecting to it, it seems pressing to understand why this is so. This striking thought brought me up short as I was considering my own thesis. My realisation was that, no matter how incisively I, as an enthusiastic PhD candidate, argued that the damage surveillance was doing to liberal values like privacy ought to be taken notice of – and no matter how many intricate puzzles and thought experiments I could think of to show I was conclusively right about this – it would not make a difference. This was not an instance of doubting the usefulness of political theory or political science. Rather, it was a doubt regarding liberal and democratic values and the role they play for society in practice, and in particular the role they play in response to surveillance in contemporary times. If it could be shown that surveillance was spreading in a way that damages liberal and democratic values like 6 liberty, and I believed it could be, why is it that this doesn't seem to matter enough in a liberal democratic society? This raised a number of questions, the most important of which came to be not “is surveillance harming values dear to liberal democracies?”; but rather “if this really is the case, then how do they get away with it?” By this I mean, how is surveillance which is harmful – and which, as I will argue in the thesis, dominates citizens – legitimate in terms recognizable by liberals, within the framework of liberal democracy? Why this is so, and why this is so widespread in spite of values that would seem to offer some bulwark against such spread, seems an urgent question. Most public objections to surveillance commonly seek to use liberal values such as privacy, liberty and free expression on the one hand, and democratic values such as equality on the other, to shield against the harms that surveillance can bring. Surveillance is seen broadly as an external harm to liberal and democratic values, and commonly the task of study is to identify instances and patterns where surveillance is perceived to be going wrong, being excessively harmful, being used disproportionately or arbitrarily, or is ‘mistaken’. These kinds of common objections, implicitly or explicitly confident