video surveillance case neg
advantage
1nc advantage
Alt cause --- private cameras
Manjoo 13 [Farhad, technology columnist for the New York Times and the author of True
Enough, “We Need More Cameras, and We Need Them Now,” Slate, April 18, 2013] //khirn
we’re already being watched —
security cameras dot every busy street, and
The best reason to welcome a government network of surveillance cameras is that
just not systematically, in a way that aids law enforcement. Private
people’s personal cameras are everywhere. It might have been valuable, at some point, for us to have a discussion
about whether we wanted to go down the road of having cameras everywhere. But we missed that moment—instead, you and I
and everyone we know went out and bought smartphones and began snapping photos
incessantly. Nowadays, when anything big goes down, we all willingly cede our right to
privacy —we all take it for granted that photos provide valuable insight into news events, and
we flood the Web with pictures and clips of the scene of big news.
Turn – surveillance cameras are key to reduce violent crime
Manjoo 13 [Farhad, technology columnist for the New York Times and the author of True
Enough, “We Need More Cameras, and We Need Them Now,” Slate, April 18, 2013] //khirn
CCTVs combat more routine crime . According to a study by the Department of
Justice’s Office of Community Oriented Policing Services, when surveillance networks are installed and
competently manned by trained personnel, they reduce many types of criminal activity
by a significant margin , and they do so cost-effectively. After cameras were installed in downtown
Baltimore in 2005, the study says, violent crime fell by 23 percent and all crime fell by 25
percent. In one area of Chicago, crime fell by 38 percent after CCTVs were installed.
There’s ample evidence that
Reliance on federal legal systems to protect women take away their civil liberties
and reinforce traditionally gendered divisions between public and private space
Bumiller 6 Professor of Political Science and Women’s and Gender Studies at Amherst College
(Kristin, Thomas Jefferson Law Review, “FREEDOM FROM VIOLENCE AS A HUMAN
RIGHT: TOWARD A FEMINIST POLITICS OF NONVIOLENCE” p. 338 – 339, Spring 2006,
ProQuest) | js
Since a major purpose of the VAWA is to provide women protection from the types of violence for which there are inconsistent legal
remedies across states—one important example being marital rape—the model of federalism puts misplaced insistence
on recognizing violence through its impact on a woman’s role in the public sphere. The logic seems
counterintuitive when these provisions aspire to fashion legal remedies that reach into the deeply private context in which violence
occurs. The conception of sexual violence as a public problem in the VAWA is, of course, partly the artificial result
of the necessity to fashion a compelling constitutional argument. But it also emerges
from the inherent logic of
federalism, a logic that finds parallels in the paradigm of human rights enforcement. Both
systems of governance invest in the federal body the normative authority to set universal
standards for the treatment of citizens. Such guarantees within a federalist system are indeed necessary for citizens to
enjoy their political and economic rights within the public sphere. Yet the practice of citizenship is far more complicated, especially
in situations involving harm in our most 23. Id. at 148. 24. See Zygmunt Bauman, On Postmodern Uses of Sex, 15 THEORY,
CULTURE & SOC’Y 19 (1998). BUMILLER.DOC 8/16/2006 7:39:12 PM 2006] FREEDOM FROM VIOLENCE AS A HUMAN
RIGHT 339 intimate relationships. The recognition of freedom from sexual violence, as an expressly public right,
does not sufficiently capture how the risk to human dignity is linked to a woman’s choice for
privacy or autonomy, or the ways that surviving violence may require negotiating a relationship
with the state. Specifically in the American context, breaking through the traditional notions of how privacy
has prevented legal intervention may have the reverse effect of that intended. It may create a situation where
women lose control over their private domain because of mandatory arrest laws and no-drop policies that take
away a woman’s power to seek help from the authorities. Renee Romkens, a legal scholar from the Netherlands, suggests that in the
American experience the shift of wife abuse from the private to the public domain has reinforced the underlying binary of the public
and private. This has led to the implementation of policies that have eroded a woman’s choices in the
private sphere, and the “fact that law, notably criminal law, has been used as a major vehicle to materialize
this public responsibility only exacerbates this dynamic.”25 In contrast, Romkens argues the shifting of the
definition of the battered women to a public identity has been less problematic in Western European countries. In these countries,
there is more of a balance between the legal and the social category and the social policy strategies that the battered women’s
movements have pursued in trying to devise supportive polices. . . . In Western Europe the issue of battering has been a much more
effective domain of sociopolitical struggle than in the U.S.26 From this perspective, efforts to define violence against
women as a national issue in the United States does less to liberate women from local custom, and more
to create the circumstances for state intrusion into private lives. Moreover, actual application of the civil rights
remedy under the VAWA requires victims to assert agencies in ways that conform to traditional private and
public roles for women.
Not only does electronic surveillance fail to address the root cause of violence
against women, but it reifies institutional violence against women through the
expansion of the prison-industrial complex
Mason and Magnet 12 professors at the Institute of Women’s Studies at the University of
Ottawa (Corinne and Shoshana, Surveillance & Society, “Surveillance Studies and Violence
Against Women” p. 112 – 114, 2012) | js
Surveillance technologies are both produced by as well as part of the expansion of the prison industrial
complex. New surveillance features including the time and date stamps we described above can be used to make arrests.
Technology producers and marketers assert that surveillance features like those found on the iPhone are important security
measures. If they reference violence against women at all, companies selling these products argue that these
surveillance features will help institutions like the police to catch perpetrators of violent crimes.
For example, according to iPhone hacker and data-forensics expert Jonathan Zdziarski, the iPhone’s ability to take a screen snapshot
and save it is a personal privacy ‘flaw’. However, he and others argue that this in fact can become useful to the prison system since
users cannot permanently delete information, and, as a result, storage forensics experts have used the ‘flaw to gather evidence
against criminals convicted of rape, murder or drug deals’ (Chen 2008). In this way, although mainstream media
represent surveillance technologies as carrying risks for consumers, they are simultaneously represented as
necessary evils. For example, in the popular crime show Criminal Minds, the dangers of surveillance to individual privacy are
referenced, but the overall message remains that these technologies help to keep us safer. In a two-part episode entitled ‘The Big
Game’ and ‘Revelations’ (2007), a techie-turned-murderer accesses computers remotely to fix issues such as sound control, but then
maintains access to internal webcams after the service is completed using a Trojan horse virus. Watching women in particular, the
murderer observes his victims through the webcam and then allows the videos of his murders to ‘go viral’. While the surveillance of
victims is depicted as a breach of their privacy, it is the videos captured through webcams that lead the FBI to the murderer’s capture
and arrest. This fictional show parallels a case in Toronto, Canada in which a young woman attending York
University was killed while her boyfriend in China watched part of the women’s struggle with
her assaulter via a webcam (Sympatico News 2011). In online commentary on Sympatico News, a user claimed that this
was ‘life imitating art’ since an episode of crime show CSI: New York followed a similar story line. The police began their
investigation by attempting to uncover the streamed video and ultimately charged a York University student with her murder (Rush
2011). Of course, these technologies did not help to save this young woman’s life. Nor did they help to
address the ongoing systemic issue of violence against women. Instead, they became the vehicle by
which the police could assert that violence on campus had been addressed since this one ‘bad
apple’ violent student was caught. The approach to perpetrators of violence as ‘bad apples’ is a familiar
strategy: one that helps to distract attention from solutions aimed at addressing the systemic nature of
violence as well as its gendered and racialized nature. 5 In suggesting that these new technologies saved the day
by helping to catch one perpetrator, the media offers limited critiques of new surveillance technologies
while simultaneously ‘naturalizing their expansion’ (Magnet and Gates 2009: 7). That is, in popular TV shows
and news media, surveillance technologies are understood as producing privacy breaches that are
justified as a result of their helpfulness in police investigations. This is well captured in the commentary of
forensics expert Jonathan Zdziarski. Arguing that these technologies do produce ‘significant privacy leak[s]’, he asserts that they
remain important tools since ‘at the same time [they’ve] been useful for investigating criminals’ (Chen 2008). For feminist
surveillance studies scholars, surveillance technologies pose more complex questions than ‘are they good or bad?’We argue that the
relationship of surveillance technologies to their social context and the ways that technologies
reproduce and exacerbate social inequalities must be examined. In particular, while surveillance
technologies may be useful to police enforcement, more policing practices results in the
strengthening of a prison system that continues to overincarcerate women who are victims of
violence––and particularly targets women of colour, women with disabilities and queer women
for incarceration. Given the role of the prison system as an engine of inequality, we must call into question the assertion that
improving intensifying existing connection between anti-violence movements, surveillance technologies, and the police is
necessarily positive. Rather, we must ask: what is the impact of deepening connections between anti-violence advocacy, new
technologies of surveillance and the prison industrial complex? Connections between anti-violence movements and the prison
system have historically been and remain deeply problematic. For anti-violence advocates, the ‘criminalization of violence against
women’ has impacted individual safety tactics and community organizing. According to the INCITE! Women of Color Against
Violence collective (2006), the movement from grassroots organizing to ‘professional’ shelters has
meant that the mainstream anti-violence movement is reluctant to challenge institutionalized
violence (Smith et al. 2006: 1). The move to government funding regimes in the U.S. and Canada are coupled to an
increased reliance on the prison system. According to Smith et al. (2006), the anti-violence movement is
‘working with the state, instead of against state violence’ (1). The criminal justice system often simply brings
many survivors of violence into conflict with the law (INCITE! 2006). In addition to those noted above, mandatory arrest laws in the
U.S. and Canada have meant that women who call police for protection are often also arrested. A New Yorkbased study complied in 2001 found that a majority (66 per cent) of domestic violence survivors who were arrested alongside their
abuser, or arrested as a result of a complaint lodged by their abuser, were African American or Latina/o, 43 per cent were living
below the poverty line and 19 per cent were receiving public assistance. Lesbian survivors are also frequently arrested alongside their
abuser since law enforcement officers frame violence within same-sex relationships as ‘mutual combat’ (Ritchie 2006: 140).
Individuals perceived to be transgressing gender 5 For further reading, see Sherene Razack’s (2004) excellent examination of the
ways that Canadian peacekeepers participating in the torture and murder of Somali civilians were described by the Canadian state
simply as ‘bad apples’, rather than individuals participating in a system of regulated and regular imperial violence perpetrated by the
Canadian state against othered bodies (117). Mason and Magnet: Surveillance Studies and Violence Against Women Surveillance&
Society 10(2) 114 norms are often subject to excessive force upon arrest (Ritchie 2006: 143). Furthermore, undocumented women
who have reported violence have often found themselves deported (Ritchie 2006: 151). To be sure, Canadian women’s shelters have
been raided by the Canadian Border Services Agency in order to deport ‘illegal’ immigrants (No One Is Illegal 2011). Given the
complex relationship of women of colour, indigenous women, poor women, queer folks,
immigrants, sex workers and other women vulnerable to being criminalized by the justice
system, the assumption that surveillance measures can provide protection to VAW victims is
problematic. In particular, surveillance technologies that deepen existing links to the prison
industrial complex pose problems for victims and anti-violence advocates
Urban planning fails to consider the inherently gendered nature of surveillance—
modern cities construct women as the constant object of the male watcher
Koskela 2 senior lecturer in the Department of Geography, University of Helsinki,finland
(Hille, Urban Geography, “Video Surveillance, Gender, and the Safety of Public Urban Space:
"Peeping Tom" Goes High Tech?” 2002, p. 261 – 3,
http://www.tandfonline.com/doi/pdf/10.2747/0272-3638.23.3.257)
Gender Dimensions in Urban Planning “What is at issue, therefore, is not whether public spaces were controlled,
but rather whose norms would be used to define those controls” (Domosh, 1998, p. 211). There has been
considerable discussion on planning “for women” and implementing policies, which take women’s needs into account. It has often been argued that
in the mainstream discussions of urban politics and planning the gender dimension is lacking or
undervalued and that women have not gained equal recognition in urban design (e.g., Matrix, 1984; Little et
al., 1988; Simonsen, 1990; Greed, 1994). There are elements of urban life that simply cannot be understood without
gender relations. Urban space is gendered in its essence: the existence of male violence, for example, modifies women’s
interpretations of space (Rose, 1993; Massey, 1994). The geography of Downloaded by [] at 13:22 05 July 2015 262 HILLE KOSKELA fear is gendered
(Valentine, 1989). According to surveys and qualitative data from all over the world, women
are more worried about their
personal safety in urban space than men. Although it is clear that the category of “women” should not be
oversimplified or seen as a homogenous group (e.g., McDowell, 1993; Gilbert, 1997), fear-evoking
experiences—such as sexual harassment, threat of violence, and actual violence—can be
experienced by all women despite their differences. Often the highly gendered nature of the public realm, which for example sexual
harassment (re)produces, is neglected (Gardner, 1995). The threat of (sexual) violence does, to some extent, touch all women. Arguably, the question of
urban safety is an issue which very accurately illustrates the gendered nature of space. Despite this ,
safety has not always been
among the most significant aims of planning that takes better account of women’s needs. This is
apparent especially in the Scandinavian countries. Such planning has been considered to be about ecological housing, healthy building materials, more
democratic planning process, lower housing costs, better transport facilities, etc. (Björk, 1991; Friberg, 1993; NordREFO, 1989). Until the late 1990s
safety was hardly discussed. This is somewhat paradoxical since the Scandinavian countries do have a reputation for supporting gender equality. In the
Anglo-American countries this issue has been debated much more. There has been both theoretical reasoning on the causes and structures of fear (e.g.,
Merry, 1981; Smith, 1987; Gordon and Riger, 1989; Valentine, 1989; Pain, 1991) and attempts to create “safe city initiatives” by applying this knowledge
in urban policies and planning procedures (e.g., Trench et al., 1992; Wekerle and Whitzman, 1995). It has been stated that there is a need to “Ask for
public funds to transform public spaces to make them safe and accessible to everyone at night as well as during the day” (Duncan, 1996, p. 132).
Increased safety is commonly accepted as an important aim but there is much less consensus as to the means by which it could be achieved. I will now
discuss whether video surveillance could be among these means. Space is not just a macro-structure separate from human reality but it has
an
experienced dimension. Space is interpreted and confronted in the “micropolitics” of everyday
life (Domosh, 1998). Meanings about gender and space are produced in social practices and “are not
natural offixed but continually contested and subverted” (Boys, 1999, p. 193). The ostensibly trivial gendered practices
of the everyday (re)produce the power structures which restrict and confine women’s space (Rose, 1993). In addition, as Doreen Massey argues “What
is clear is that spatial
control, whether enforced through the power of convention or symbolism, or
through the straightforward threat of violence, can be a fundamental element in the constitution
of gender in its (highly varied) forms.” (1994, p. 180, emphasis added) Gender, Security, and Surveillance Technology Because of
their levels of fear women have been alleged to be the ones that particularly enjoy the “pay-off” of
surveillance (Honess and Charman, 1992, p. 11; also Koskela, 2000a). Is this conclusion valid? Is surveillance perceived by women as improving
their personal safety? What kinds of gender relation and gendered practices does surveillance include? Downloaded by [] at 13:22 05 July 2015 VIDEO
SURVEILLANCE, GENDER, AND SAFETY 263first, I examine
the gender relations of surveillance at the simplest
level: who occupies the opposite sides of a surveillance camera? If we look at the places and spaces under
surveillance, and the maintenance of surveillance, can we see practices which could be gendered? In public and semipublic space, the places
where surveillance most often is practiced are the shopping malls and the shopping areas of city centers, and
likewise public transport areas, such as metro stations, railway stations and busy bus stops. Who usually negotiates and decides about
surveillance is the management: managers of shopping malls, leading politicians, and city mayors. Furthermore, people who maintain
surveillance are the police and private guards. From this it is possible to draw conclusions about the gender structure of
surveillance. Women spend more of their time shopping than men. Everyday purchases for the family are mostly bought by women. It is also known
that a majority of the users of public transport are women. Thus women are often found in the typical places under surveillance. In contrast, the
occupations in charge of deciding on surveillance are male dominated. Even more importantly, the professions that maintain surveillance, police and
guards, are also male dominated. Thus, at this simplest level, surveillance
is, indeed, gendered: most of the persons
“behind” the camera are men and most of the persons “under” surveillance are women (Koskela,
2000a).
2nc crime turn
Cameras deter crime and free police resources to aid law enforcement
La Vigne 13 [Nancy G., “How Surveillance Cameras Can Help Prevent and Solve Crime,”
UrbanWire, http://www.urban.org/urban-wire/how-surveillance-cameras-can-help-preventand-solve-crime] //khirn
The potential value of public surveillance technology took on new meaning last week when
investigators identified the two suspects in the Boston Marathon bombing after sifting
through video images captured by the city’s cameras.
This has prompted public officials like Chicago Mayor Rahm Emanuel to speak of the “important function” such cameras play in
offering safety on a daily basis and during events both big and small.
The successful use of this technology in such a high-profile investigation is likely to prompt other major cities to reaffirm – and even
expand – their investment in and use of surveillance cameras. Civil liberties advocates fear this would create an undue invasion of
privacy.
In the ensuing debates over privacy versus safety, advocates on both sides would be wise to consider the following guidelines.
Public surveillance cameras and civil liberties can coexist if cameras are implemented and
employed responsibly. Our guidebook for using public surveillance systems advises law enforcement to consider privacy
issues when creating surveillance policies. For one, cameras should avoid or mask inappropriate views of private areas, such as yards
and second-story windows. Law enforcement agencies should also document and publicize policies governing how surveillance
cameras can be used and what the disciplinary consequences are for misuse. Likewise, officers should be thoroughly trained on these
policies and held accountable for abiding by them.
Public surveillance camera systems can be a cost-effective way to deter, document, and
reduce crime. Urban’s research has shown that in Baltimore and Chicago, cameras were linked to reduced
crime, even beyond the areas with camera coverage. The cost savings associated with crimes
averted through camera systems in Chicago saved the city over four dollars for every dollar
spent on the technology, while Baltimore yielded a 50 cent return on the dollar.
The usefulness of surveillance technology in preventing and solving crimes depends on the
resources put into it. Our evaluation of three cities found that the most effective systems are monitored
by trained staff, have enough cameras to detect crimes in progress, and integrate
the technology into all manner of law enforcement activities.
As with any technology, the use of cameras is by no means a substitute for good old-fashioned police work. The detectives we
interviewed reported that camera footage provides additional leads in an investigation and aids in securing witness cooperation. And
prosecutors noted that video footage serves as a complement to—but not a replacement for—eyewitness evidence in the courtroom.
And, the plan precludes the use of artificial intelligence to deter crimes
Manjoo 13 [Farhad, technology columnist for the New York Times and the author of True
Enough, “We Need More Cameras, and We Need Them Now,” Slate, April 18, 2013] //khirn
The next step in surveillance technology involves artificial intelligence . Several companies
are working on software that monitors security-camera images in an effort to spot criminal
activity before it happens. One company, BRS Labs, has built technology for the San Francisco public transportation
system that will monitor scenes and alert officials when it spots “unusual or abnormal behavior.” What’s that, exactly? According the
company’s proposal and its other promotional material, the software looks for any statistically unusual
occurrences. By monitoring a scene for a long time, it determines what’s “normal” for that
environment. It then alerts officials when something strays from normalcy. For instance, as BRS’
president told the Daily last year, the software sent out an alert when it noticed a truck entering a San Francisco tunnel that’s
supposed to be used only by subway trains. Other occurrences that might set the software on high alert
include people who are loitering instead of getting about their business, people who are jumping
turnstiles, and folks who drop a package and then walk away.
at: “we just regulate cameras”
Regulations preclude effective use of cameras
Manjoo 13 [Farhad, technology columnist for the New York Times and the author of True
Enough, “We Need More Cameras, and We Need Them Now,” Slate, April 18, 2013] //khirn
The study showed a smaller impact in other places—in Washington, D.C., for instance, researchers found that a surveillance system
had no discernable impact on crime. But the reason for D.C.’s surveillance failure won’t please civil libertarians: Researchers argued
that the cameras likely didn’t work because their use was too tightly regulated as a result of
privacy fears. After getting input from the ACLU, D.C. instituted rules that severely limit who can look at
the cameras and whom they can follow. The rules also prevent operators from saving
surveillance footage routinely. In practice, the regulations mean that few people are monitoring
D.C.’s cameras and responding to crimes that are caught on tape. The report suggests that if the rules
were relaxed, the cameras might prove far more effective .
2nc can’t solve root cause
Surveillance technologies target interpersonal violence while
reinforcing state violence against perceived “deviants”
Mason and Magnet 12 professors at the Institute of Women’s Studies at the University of
Ottawa (Corinne and Shoshana, Surveillance & Society, “Surveillance Studies and Violence
Against Women” p. 114 – 116, 2012) | js
It is a difficult task to critique surveillance technologies aimed at ensuring women’s safety against abusers. When made
visible as anti-violence tools, technologies of surveillance appear to be uncontroversial to a
range of actors. Certainly, women’s safety is a priority for feminists, as is ending violence practices. Yet, the widespread
promotion of surveillance tools for anti-violence means must be challenged. By overlooking the
complex ways that surveillance practices and technologies are entrenched within the prison
industrial complex, one might miss key challenges that surveillance technologies pose antiviolence strategies. Whether it is smartphones, iPhone applications, Google maps, or home surveillance, feminist
surveillance studies scholars must investigate the ways that existing inequalities may be
exacerbated by their use. The surveillance technologies that are offered to women as safety
measures, such as cell phones, smartphone applications, internet-browsing safety and home security systems, are all
targeted toward interpersonal violence. Mainstream and criminalized understandings of VAW
wrongfully assume that violence is perpetrated by individual abusers who must be incarcerated.
Anti-violence advocates including Andrea Smith (2008) and Angela Davis (2003, 2005) remind us that the prison industrial
complex has done little to promote anti-violence strategies. Rather than examining the widespread, systemic
nature of violence against women, instead, the prison industrial complex has simply
incarcerated ever-growing numbers of people––particularly indigenous people and people of
colour. Moreover, it is well studied that violence in the prison system only continues the cycle of violence,
as abusers are incarcerated, treated violently in the prison system, and then released (Gilligan 2000). In fact, radical anti-violence
activists argue that prison abolition must be a part of any violence strategy in order to interrupt this cycle of violence, a conclusion
with which we heartily concur. Practices of violence must always be connected to systems of power and
domination, including state-perpetrated racist and sexist violence. Unfortunately, much of the
literature on surveillance technologies has focused on individual acts of stalking and control. Of
course, feminist literature on the subject of technology and stalking is important. However, in order to understand how
surveillance affects the perpetration of violence and influences tactics to end violence practices,
feminists must think more broadly and intersectionally about VAW and the connections between
surveillance, sexism, racism, and the prison system. Importantly, the surveillance of vulnerable
bodies by the state, policing services and even social service providers disproportionately target marginalized
and exploited communities. In recent years, feminist and critical race explorations of policing and surveillance have
necessarily included the experiences of Arab, Middle Eastern, South Asian and Muslim men and women. While such racialized
bodies have always been targeted in white supremacist nations, post-9/11 security rhetoric around national security has helped to
shore up surveillance measures. While honour killings, forced marriages, polygamy and dowry-related murders have received
increased and disproportionate media attention in the U.S. and Canadian media since 9/11, mainstream conceptions of
violence against women of colour are rarely inclusive of harassment, racist violence and sexual
abuse at home and abroad at the hands of military and law enforcement agencies (Ritchie 2006: 139).
Such violent crimes against women are insufficiently attended to in mainstream anti-violence
strategies, and technologies aimed at women’s safety may intensify the surveillance and further
criminalization of particular communities. Surveillance ‘flaws’ such as those found in iPhones and iPads are
used by the criminal justice system as tools to help them make arrests (Chen 2008). For those already
criminalized and stigmatized, including indigenous people and people of colour, especially Arab, Middle Eastern and Muslim
individuals post-9/11, surveillance ‘flaws’ will have a disproportionate effect. Placing marginalized, stigmatized and
often criminalized women at the centre of feminist surveillance studies reveals that technologies
aimed at the protection from individual abusers, and the arrest of perpetrators, does not work
for all cases of violent practices. To be sure, it is a step in the right direction for Google maps and Google Street View to
ensure that the addresses of women’s shelters are not exposed to the public (National Network to End Violence Against Women
2010). However, feminists should also be concerned with the impact of Google maps and Google
Street View for the surveillance of street level sex workers. Problematically, Google maps has allowed street
view pictures of women to be visible and circulated widely over the internet. Moreover, the feminist blog Jezebel (2011) noted that,
as a result of Google pictures of sex workers, a book titled ‘Roadside Prostitutes’ has now been published in which women are
objectified for the viewing pleasure of others, and without remuneration. The distribution of images reveals pictures of workers who
often work anonymously, in illegal bawdy houses, or on the street, and require protection from both unsafe clients and Mason and
Magnet: Surveillance Studies and Violence Against Women Surveillance& Society 10(2) 116 law enforcement where their work is
criminalized. For indigenous women, people of colour, queer, and non-gender conforming folks
taking part in sex work, the visibilization of their bodies and workplaces put them at an even
greater risk of violence. Given that these communities are already heavily surveilled by law
enforcement, especially those working at street level, the public access to these images compounds safety
issues. Sex workers have pointed out that violence is practiced by unsafe clients, but is also experienced at the hands of policing
services. For example, due to the criminalization of sex work in Canada, workers are unable to lawfully unionize or assemble for
protection, unable to work indoors, and often cannot call on police for help because they risk arrest (Power 2011). The distribution of
Google map and Google Street View photos of sex workers and their work places puts women at risk of violence and should be
considered alongside protecting shelter addresses when anti-violence advocates work with Google. Yet, sex workers and
other marginalized communities have been left out of the mainstream discussions about
surveillance technologies and VAW.
2nc urban planning fails
Urban surveillance of women’s spaces further engenders apprehension—their fear
becomes redirected not only to the present threats, but also the mysterious
observer behind the camera lenses
Gray 3 journalist (Mitchell, Surveillance & Society, “Urban Surveillance and Panopticism: will
we recognize the facial recognition society?” 2003, www.surveillance-andsociety.org/articles1(3)/facial.pdf) | js
The negative ways in which urban dwellers may experience facial recognition are all the more
salient because they are not countered by the feelings of security they are meant to instil. Koskela’s
(2002) examination of women’s perceptions of surveillance indicates that facial recognition software, and camera
surveillance in general, is failing to quell women’s fears related to the urban environment.
Surveillance proponents argue that women harbour greater concerns about their personal safety in urban areas than men do, and
therefore gain even more from urban surveillance, but Koskela challenges this notion. The problem stems from the
unverifiability of the presence and character of the observers in a panoptic situation. Bentham
praised this as part of the influence of the panopticon as he envisioned it, but it represents a weakness in the modern urban version.
Surveillance cameras fail to significantly reduce women’s fears because they do not know who is observing them. Koskela says that in
general, “Women are constantly reminded that an invisible observer is a threat.” This is manifest in
warnings from police and others to close their curtains tightly, to beware of snoops or “peeping
toms.” The problem is Gray: Urban Surveillance and Panopticism Surveillance & Society 1(3) 326 enhanced by the fact that most
employees at observation posts are men. A temptation exists to use the surveillance tools for voyeuristic purposes (2002:263-264).
The “placeless and faceless” nature of video surveillance, with or without facial recognition,
causes women to doubt its value. Observation rooms are generally hidden, rendering them placeless to those
experiencing the surveillance. The observation could be taking place at a distance that would mean those
watching would have little or no chance of intervening in a dangerous situation. Furthermore, a
facial recognition match on a criminal would be of little immediate benefit to a woman under
attack. Facelessness becomes an issue because women cannot see the observers and therefore have no
ability to form a perception concerning their reliability and their willingness to help in a troublesome situation
(Koskela, 2002:267-268). Facial recognition systems have the potential to transform urban spaces in undesirable ways that elude
the control of city planne rs, governments and the populace itself. There is also clear evidence that surveillance frequently fails to
engender sensations of security in those under its watchful eye, particularly women. And yet increases in surveillance are
an essential component of the aggravated risk society, and it is difficult, if not impossible, tofind
someone who predicts a halt in the progress of the watchful eye. The question, then, is how can
the accountability of those who advocate and operate the systems be ensured?
solvency
1nc solvency
No solvency – court intervention takes years
Powers and Rothman 2 [Stephen and Stanley, Research Associate for the Center for Social
and Political Change at Smith College and Professor of Gov and Director of the Center for Social
and Political Change at Smith College, The Least Dangerous? Consequences of Judicial
Activism, p. 179]
A recurrent problem with the judiciary’s extension of fundamental rights to the institutions we have studied is that when
courts
intervene, they do not merely point out a constitutional or statutory violation that must be corrected. They typically
dictate a detailed set of remedies to address the issue. This type of intervention has generated a
notoriously rigid approach to institutional reform. The judiciary was not designed to legislate or
to execute the laws, only to interpret their meaning. It lacks the accountability required of a policy-making body. Judges are
only accountable to the public under the most rare and extreme circumstances. Yet in the wake of elaborate court orders, prisons,
mental hospitals, schools, police departments, and corporations must all continue to balance individual rights against group or
societal interests. Unfortunately, judges do not have the expertise, the time, or the inclination to make
the kind of long-term incremental adjustments that may be critical to institutional stability and
progress. That is why court-ordered remedies rarely work as planned and have so many unanticipated
consequences. Moreover, as we have seen, modification or reversal of court rulings adversely impacting social and political
institutions generally takes years.
No enforcement or funding
Pacelle, poli sci prof and legal studies coordinator at the univ of Missouri at St. Louis, 2k2
[Richard, The Role of the Supreme Court in American Politics: The Least Dangerous Branch?,
p81]
Even if the Supreme Court was to carve out some sphere of power for itself, there would be
significant limitations. Any Court decision has to be enforced, but enforcement power is the
province of the president and the executive branch. Thus, the Court is at their mercy. If the
president does not like the decision, he does not have to enforce it. Indeed, history books report that
Andrew Jackson, upset at the Worcester v. Georgia (1832) decision, growled that “John Marshall made his decision, now let him
enforce it.” There was concern that Dwight Eisenhower would not back the Brown decision when the Southern states resisted.
Ultimately, though quite reluctantly, Eisenhower sent troops to Little Rock to support the decision. What if the Court’s
decision requires active policy intervention and the allocation of resources to help carry out the
directives? If the courts determine that prisons are overcrowded or schools are substandard, will the legislature, which has the
taxing and spending power, be willing to raise and spend money to correct the problem? It took a decade before serious legislative
support for the Brown decision was provided. Title VI of the Civil Rights Act of 1964 empowered the government to cut off federal
funds to school districts that did not comply with the desegregation directive (Halpern 1995, 30—59). The bottom line is the
adage “the Court lacks the sword and the purse”—it lacks the ability to enforce its decisions and
the power over the resources to do so. This places a limitation on the justices. If they stray too
far from the acceptable boundaries set by Congress or the president, they risk a negative
response from the branches with the real power. If the Court can safely be ignored by the other
branches and the public, the cost is its institutional legitimacy.
Plan acts as fly-paper for social movements – it lures them to the courts
Rosenberg 8 (Gerald N., University of Chicago political science and law professor, Ph.D. from
Yale University, member of the Washington, D.C. bar, “The Hollow Hope: can courts bring
about social change?,” pg. 427, 2008)
If this is the case, then there is another important way in which courts affect social change. It is,
to put it simply, that courts act as “fly-paper” for social reformers who succumb to the
“lure of litigation.” If the constraints of the Constrained Court view are correct, then courts
can seldom produce significant social reform. Yet if groups advocating such reform continue to
look to the courts for aid, and spend precious resources in litigation, then the courts also
limit change by deflecting claims from substantive political battles, where success is
possible, to harmless legal ones where it is not. Even when major cases are won, the
achievement is often more symbolic that real. Thus, courts may serve an ideological function
of luring movements for social reform to an institution that is structurally constrained from
serving their needs, providing only an illusion of change.
And, causes backlash—conservative reconstruction.
West 93 [Robin, Professor of Law, Georgetown University Law Center, Fall 1993, 88 Nw. U.L.
Rev. 241, Northwestern Law review]
Although the adjudicated Constitution obviously has from time to time been used to effectuate
progressive gains and to solidify progressive victories, those moments have been rare,
anomalous, and often fleeting: the victory has been, as often as not, soured by near
instantaneous conservative reconstruction. 18 For the most part, the clauses of the adjudicated
Constitution have operated in concert to conserve present distributions of social, economic, and
private power against legislative and democratic attempts at redistributing those resources or
renegotiating the terms of struggle. If for no other than that reason, progressives would be well
advised to break their romance with the United States Constitution. If it is true, as I have suggested, that
the adjudicated Constitution is doctrinally and substantively more of a bar to than a vehicle for progressive legislation, then Thayer's
rule looks attractive indeed.
That crushes resources to solve widespread social reform
Rosenberg 8 (Gerald N., University of Chicago political science and law professor, Ph.D. from
Yale University, member of the Washington, D.C. bar, “The Hollow Hope: can courts bring
about social change?,” pg. 422-423, 2008)
In contrast to this conclusion, it might be suggested that throughout this book I have asked too much of courts. After all, in all the
cases examined, court decisions produced some change, however small. Given that political action appeared impossible in many
instances, such as with civil rights in the 1950s, same-sex marriage in the 1990s, and reform of the criminal justice system more
generally, isn’t some positive change better than none? In a world of unlimited resources, this would be the case. In the world in
which those seeking significant social reform live, however, strategic choices have costs, and a strategy that
produces little or not change and induces backlash drains resources that could be more
effectively employed in other strategies. In addition, vindication of constitutional principles
accompanied by small change may be mistaken for widespread significant social reform,
inducing reformers to relax their efforts.
2nc courts fail – enforcement
Courts can’t implement their decisions
Rosenberg 8 (Gerald N., University of Chicago political science and law professor, Ph.D. from
Yale University, member of the Washington, D.C. bar, “The Hollow Hope: can courts bring
about social change?,” pg. 10, 2008)
The view of courts as unable to produce significant social reform has a distinguished pedigree reaching back to the founders.
Premised on the institutional structure of the American political system and the procedures and belief systems created by American
law, it suggests that the conditions required for courts to produce significant social reform will seldom
exist. Unpacked, the Constrained Court view maintains that courts will generally not be effective producers of
significant social reform for three reasons: the limited nature of constitutional rights, the lack of
judicial independence, and the judiciary’s inability to develop appropriate policies and its lack of
powers of implementation.
Courts lack sword and purse.
Pacelle 2 [Richard, poli sci prof and legal studies coordinator at the univ of Missouri at St.
Louis, The Role of the Supreme Court in American Politics: The Least Dangerous Branch?, p.
92]
The limits and potential limits on justiciability and jurisdiction are only part of a broader concern with the institutional constraints
on the Court. The Court has some institutional weaknesses that seem to argue for judicial restraint.
The willingness to exercise activism creates the risk that the Court will overstep its boundaries
and invites retaliation from the elected branches. The creation of separation of powers and checks and balances
was a prescription for political conflict. As Louis Brandeis noted, “the government was created not for efficiency, but to avoid the
arbitrary use of power” (O’Brien 1997, 4). The division of authority between the different branches of
government is a source of both strength and weakness for the Court. It is a weakness in that the other
branches hold some potentially strong weapons over the Court. At the same time, separation of powers
means that the elected branches have some weaknesses as well. Those constraints provided opportunities for the Court to step in
and enhance its own base of power over time. Perhaps the greatest limitation on the Supreme Court is that the
judiciary cannot enforce its own decisions. It lacks “the sword and the purse” Congress has the
purse, the president has the sword. If either or both disagree with the Court’s decision, that
decision may be undermined or not enforced—and either one can retaliate against the Court in a
number of ways.
2nc courts fail – social change
People won’t respond – they feel courts are out of step with popular beliefs
Rosenberg 8 (Gerald N., University of Chicago political science and law professor, Ph.D. from
Yale University, member of the Washington, D.C. bar, “The Hollow Hope: can courts bring
about social change?,” pg. 425-426, 2008)
Why do judicial decisions appear to effectively mobilize opponents? With same-sex marriage, why was there a ferocious backlash
after the Hawaii and Massachusetts decisions but not after the Connecticut or New Hampshire legislative enactments of civil
unions? In the particular case, part of the answer likely has to do with timing (Connecticut and New Hampshire acted later) and with
the greater public support for civil unions compared to marriage. More generally, legislators are unlikely to enact
highly controversial legislation they believe that most of their constituents oppose while judges
sometimes will act without political support. Thus, judicial decisions can appear to come out of
the blue. They can be unexpected and shocking. Along the same lines, legislative acts require the
support of majorities of relatively large legislatures, typically numbering in the hundreds, in two
separate chambers, and the concurrence of the governor, while judicial opinions are the work of
a handful of judges. Thus, in contrast to legislative acts, it is easy to characterize a judicial decision as the
result of a few “activist” judges who don’t share the public’s beliefs and attitudes. Throughout the book
I quoted opponents of judicial decisions furthering significant social reform criticizing the decisions as illegitimate because they
came from the courts. Consider, for example, the remarks of President Bush in his State of the Union address on January 20, 2004,
at the start of the presidential election year, in support of a constitutional amendment banning same-sex marriage. Bush
underscored this concern with judicial action, saying, in part: Activist judges . . . have begun redefining marriage by court order,
without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people’s voice
must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the
constitutional process. Our nation must defend the sanctity of marriage. (Bush 2004) This concern may be more than
rhetorical. Legislators face frequent elections while judges either have life tenure or infrequently
face the electorate. When judges make unpopular decisions, people may feel that their lives are
being reordered without their input. Thus, the judiciary may be institutionally structured to be
susceptible to backlash.
Crushes all other avenues of protest
Rosenberg 8 (Gerald N., University of Chicago political science and law professor, Ph.D. from
Yale University, member of the Washington, D.C. bar, “The Hollow Hope: can courts bring
about social change?,” pg. 423, 2008)
In general, then, not only does litigation steer activists to an institution that is constrained from
helping them, but also it siphons off crucial resources and talent, and runs the risk of weakening
political efforts. In terms of financial resources, social reform groups don’t have a lot of money.
Funding a litigation campaign means that other strategic options are starved of funds. In civil
rights, while Brown was pending in June 1953, Thurgood Marshall and Walter White sent out a telegram to
supporters of the National Association for the Advancement of Colored People asking for money, stating “funds
entirely spent” (quoted in Kluger 1976, 617). Compare this to the half-million-dollar estimates of the cost of the
freedom rides, largely due to fines and bail (Sarratt 1966, 337). Further, the legal strategy drained off the
talents of people such as Thurgood Marshall and Jack Greenberg. As Martin Luther King, Jr., complained: “ to
accumulate resources for legal actions imposes intolerable hardships on the already
overburdened” (King 1963, 157)
Courts only create illusion of trade
Rosenberg 8 (Gerald N., University of Chicago political science and law professor, Ph.D. from
Yale University, member of the Washington, D.C. bar, “The Hollow Hope: can courts bring
about social change?,” pg. 424, 2008)
A further danger of litigation as a strategy for significant social reform is that symbolic
victories may be mistaken for
substantive ones, covering a reality that is distasteful. Rather than working to change that
reality, reformers relying on a litigation strategy for reform may be misled (or content?) to celebrate
the illusion of change. Throughout this book, the reader has encountered numerous claims about the symbolic importance
of judicial decisions. Yet none of them has withstood empirical analysis. In criminal rights, for example, the contribution of
the Court’s decisions seems more symbolic than substantive, having “more significance as a
declaration of intent than as a working instrument of law” (Elsen and Rosett 1967, 645). For some, however,
this is meaningful. As Schulhofer puts it, “the symbolic effects of criminal procedural guarantees are important; they underscore our
societal commitment to restraint in an area in which emotions easily run uncontrolled” (Schulhofer 1987, 460).5 Yet, chapter 11 has
shown that these “societal commitments” are not always shared by those responsible for
implementing them. There is a danger that symbolic gains cover for actual failings. In strong but
colorful language, Tigar sums up this view of the criminal rights revolution, and the dangers of substituting symbolic gain for
substantive change more generally: “the constitutional revolution in criminal procedure has amounted
to
little more than an ornament, or golden cupola, built upon the roof of a structure found rotting
and infested, assuring the gentlefolk who only pass by without entering that all is well inside”
(Tigar 1970, 7).
2nc courts fail – backlash
Court victories create countermobilization
Rosenberg 8 (Gerald N., University of Chicago political science and law professor, Ph.D. from
Yale University, member of the Washington, D.C. bar, “The Hollow Hope: can courts bring
about social change?,” pg. 425, 2008)
Successful litigation for significant social reform runs the risk of instigating
countermobilization. While I have found little evidence that court decisions mobilize supporters of significant social reform,
the data suggest that they can mobilize opponents. With civil rights, there was growth in the
membership and activities of pro-segregation groups such as the White Citizens Councils and
the Ku Klux Klan in the years after Brown. With abortion, the Right to Life movement expanded
rapidly after 1973. While both types of groups existed before Court action, they appeared
reinvigorated after it. In addition, in the wake of the Supreme Court’s 1989 Webster decision, seen by many as a threat to
continuing access to safe and legal abortion, pro-choice forces seemed to gain renewed vigor. With same-sex marriage, there was a
massive and effective countermobilization in response to the Hawaii, Vermont, and Massachusetts decisions. These examples
suggest that one result of litigation to produce significant social reform is to strengthen the
opponents of such change. And that, of course, is far from the aim of those who litigate.
Creates legislative backlash
Rosenberg 8 (Gerald N., University of Chicago political science and law professor, Ph.D. from
Yale University, member of the Washington, D.C. bar, “The Hollow Hope: can courts bring
about social change?,” pg. 426, 2008)
A final reason why judicial decisions on controversial issues may spark backlash is that while
legislative enactments are about preferences, judicial decisions are about principle. It is possible to
compromise preferences but principles, by definition, can’t be compromised. To be told by an electorally
unaccountable judge that deeply-held principles are wrong may outrage those who hold
competing principles. In contrast, when a legislature extends a benefit or enacts an entitlement
program, one’s disagreement may be less intense. After all, what one legislature has done another
can undo and the next election is likely only a few years away. Again, the reasons that make litigation
attractive to the relatively disadvantaged are the very reasons that judicial victories are susceptible to backlash.
Courts lead to more conservative legislation – Congress thinks that courts will
strike it down
Rosenberg 8 (Gerald N., University of Chicago political science and law professor, Ph.D. from
Yale University, member of the Washington, D.C. bar, “The Hollow Hope: can courts bring
about social change?,” pg. 423-424, 2008)
The pro-choice movement was harmed in a second way by its reliance on Court action. The most
restrictive version of the Hyde Amendment, banning federal funding even for the most medically necessary
abortions, was passed with the help of a parliamentary maneuver by pro-choice legislators. Their
strategy, as reported the following day on the front pages of the New York Times and Washington Post was to pass such a
conservative bill that the Court would have “no choice” but to overturn it (Tolchin 1977; Russel 1977).4
This reliance on the Court was totally unfounded. With hindsight, Karen Mulhauser, former director of NARAL,
suggested that “had we made more gains through the legislative and referendum processes, and
taken a little longer at it, the public would have moved with us” (quoted in Qilliams 1979, 12). By
winning a Court case “without the organization needed to cope with a powerful opposition”
(Rubin 1982, 169), pro-choice forces vastly overestimated the power and influence of the Court.
framing
1nc framing
They’re wrong about predictions and voting for them makes it worse
Fitzsimmons, 7 – Ph.D. in international security policy from the University of Maryland,
Adjunct Professor of Public Policy, analyst in the Strategy, Forces, and Resources Division at the
Institute for Defense Analyses (Michael, “The Problem of Uncertainty in Strategic Planning”,
Survival, Winter 06/07)
In defence of prediction Uncertainty is not a new phenomenon for strategists. Clausewitz knew that ‘many intelligence reports in war are contradictory; even more are false, and
most are uncertain’. In coping with uncertainty, he believed that ‘what one can reasonably ask of an officer is that he should possess a standard of judgment, which he can gain
only from knowledge of men and affairs and from common sense. He should be guided by the laws of probability.’34 Granted, one can certainly allow for epistemological debates
about the best ways of gaining ‘a standard of judgment’ from ‘knowledge of men and affairs and from common sense’. Scientific inquiry into the ‘laws of probability’ for any given
strate- gic question may not always be possible or appropriate. Certainly, analysis cannot and should not be presumed to trump the intuition of decision-makers. Nevertheless,
the burden of proof in any debates about planning should belong to the
decision-maker who rejects formal analysis, standards of evidence and probabilistic reasoning.
Ultimately, though, the value of prediction in strategic planning does not rest primarily in getting the
correct answer, or even in the more feasible objective of bounding the range of correct answers. Rather, prediction requires decisionmakers to expose, not only to others but to themselves, the beliefs they hold regarding why a
given event is likely or unlikely and why it would be important or unimportant. Richard Neustadt and Ernest
Clausewitz’s implication seems to be that
May highlight this useful property of probabilistic reasoning in their renowned study of the use of history in decision-making, Thinking in Time. In discussing the importance of
probing presumptions, they contend: The need is for tests prompting questions, for sharp, straightforward mechanisms the decision makers and their aides might readily recall
and use to dig into their own and each others’ presumptions. And they need tests that get at basics somewhat by indirection, not by frontal inquiry: not ‘what is your inferred
causation, General?’ Above all, not, ‘what are your values, Mr. Secretary?’ ... If someone says ‘a fair chance’ ... ask, ‘if you were a betting man or woman, what odds would you put
on that?’ If others are present, ask the same of each, and of yourself, too. Then probe the differences: why? This is tantamount to seeking and then arguing assumptions
underlying different numbers placed on a subjective probability assessment. We know of no better way to force clarification of meanings while exposing hidden differences ...
Once differing odds have been quoted, the question ‘why?’ can follow any number of tracks. Argument may pit common sense against common sense or analogy against analogy.
What is important is that the expert’s basis for linking ‘if’ with ‘then’ gets exposed to the hearing of other experts before the lay official has to say yes or no.’35 There are at least
prediction enforces a certain
level of discipline in making explicit the assumptions, key variables and implied causal
relationships that constitute decision-makers’ beliefs and that might otherwise remain
implicit. Imagine, for example, if Shinseki and Wolfowitz had been made to assign probabilities to
their opposing expectations regarding post-war Iraq. Not only would they have had to work
harder to justify their views, they might have seen more clearly the substantial chance that they
were wrong and had to make greater efforts in their planning to prepare for that contingency.
Secondly, the very process of making the relevant factors of a decision explicit provides a firm, or at
least transparent, basis for making choices. Alternative courses of action can be compared and assessed in like terms. Third, the
transparency and discipline of the process of arriving at the initial strategy should heighten the
decision-maker’s sensitivity toward changes in the environment that would suggest the need for
adjustments to that strategy. In this way, prediction enhances rather than under-mines
strategic flexibility. This defence of prediction does not imply that great stakes should be gambled on narrow, singular predictions of the future. On the
three critical and related benefits of prediction in strate- gic planning. The first reflects Neustadt and May’s point –
contrary, the central problem of uncertainty in plan- ning remains that any given prediction may simply be wrong. Preparations for those eventualities must be made. Indeed, in
many cases, relatively unlikely outcomes could be enormously consequential, and therefore merit extensive preparation and investment. In order to navigate this complexity,
While the complexity of the international security
environment may make it somewhat resistant to the type of probabilistic thinking associated
with risk, a risk-oriented approach seems to be the only viable model for national-security
strategic planning. The alternative approach, which categorically denies prediction, precludes
strategy. As Betts argues, Any assumption that some knowledge, whether intuitive or explicitly formalized, provides guidance about what should be done is a presumption
strategists must return to the dis- tinction between uncertainty and risk.
that there is reason to believe the choice will produce a satisfactory outcome – that is, it is a prediction, however rough it may be. If there is no hope of discerning and
manipulating causes to produce intended effects, analysts as well as politicians and generals should all quit and go fishing.36 Unless they are willing to quit and go fishing, then,
strategists must sharpen their tools of risk assessment. Risk assessment comes in many varieties, but identification of two key parameters is common to all of them: the
consequences of a harmful event or condition; and the likelihood of that harmful event or condition occurring. With no perspective on likelihood, a strategist can have no firm
perspective on risk. With no firm perspective on risk, strategists cannot purposefully discriminate among alternative choices. Without purposeful choice, there is no strategy.
One of the most widely read books in recent years on the complicated relation- ship between strategy and uncertainty is Peter Schwartz’s work on scenario-based planning, The
Art of the Long View. Schwartz warns against the hazards faced by leaders who have deterministic habits of mind, or who deny the difficult implications of uncertainty for
strategic planning. To overcome such tenden- cies, he advocates the use of alternative future scenarios for the purposes of examining alternative strategies. His view of scenarios
is that their goal is not to predict the future, but to sensitise leaders to the highly contingent nature of their decision-making.37 This philosophy has taken root in the strategicplanning processes in the Pentagon and other parts of the US government, and properly so. Examination of alternative futures and the potential effects of surprise on current
plans is essential. Appreciation of uncertainty also has a number of organisational impli- cations, many of which the national-security establishment is trying to take to heart,
such as encouraging multidisciplinary study and training, enhancing information sharing, rewarding innovation, and placing a premium on speed and versatility. The arguments
advanced here seek to take nothing away from these imperatives of planning and operating in an uncertain environment. But appreciation of uncertainty carries hazards of its
Questioning assumptions is critical, but assumptions must be made in the end.
own.
Clausewitz’s ‘standard of
judgment’ for discriminating among alternatives must be applied. Creative, unbounded speculation must resolve to choice or else there will be no strategy. Recent history
suggests that
unchecked scepticism regarding the validity of prediction can marginalise analysis,
empower parochial interests in decision-making, and undermine
trade significant cost for ambig- uous benefit,
flexibility. Accordingly, having fully recognised the need to broaden their strategic-planning aperture, national-security policymakers would do well now to reinvigorate
their efforts in the messy but indispensable business of predicting the future.
Scenario planning is good – allows us to make better choices
Han, 10 [ Dong-ho Han, Ph.D. Candidate in Political Science at the University of NebraskaLincoln, , “Scenario Construction and Implications for IR Research: Connecting Theory to a Real
World of Policy Making,”
http://www.allacademic.com/one/isa/isa10/index.php?cmd=Download+Document&key=unpu
blished_manuscript&file_index=1&pop_up=true&no_click_key=true&attachment_style=attac
hment&PHPSESSID=3e890fb59257a0ca9bad2e2327d8a24f
How do we assess future possibilities with existing data and information? Do we have a systematic approach to analyze the future
events of world politics? If the problem of uncertainty in future world politics is increasing and future
international relations are hard to predict, then it is necessary to devise a useful tool
to effectively deal with upcoming events so that policy makers can reduce the risks of
future uncertainties. In this paper, I argue that the scenario methodology is one of the most effective
methods to connect theory to practice, thereby leading to a better understanding of future world events. The purpose
of this paper is to introduce the scenario methodology to the field of IR in a more acceptable fashion and to explore its implications
for a real policy world. To achieve this goal, I will explain the scenario methodology and why it is adequate to provide a better
understanding of future world events. More specifically, I will clarify what the scenario method is and what its core components
are and explain the importance and implications of the scenario method in IR by analyzing existing IR literature with an emphasis
on security studies that primarily provide the prospect of future security issues. 1. Introduction How do we assess future
possibilities with existing data and information? Do we have a systematic approach to analyze the future events of world politics?
Given various theoretical ideas for predicting and analyzing future events in the field of international relations (IR), to understand
these events properly it is important both to cast out all plausible outcomes and to think through a relevant theory, or a
combination of each major theory, in connection with those outcomes. This paper aims to explain the scenario methodology and
why it is adequate to provide a better understanding of future world events. After clarifying the scenario methodology, its core
components, and its processes and purposes, I will explore other field’s use of this methodology. Then I will explain the importance
and implications of the scenario method in the field of IR. I will conclude with summarizing the advantage of the scenario method
in a real world of policy making. 2. What is the Scenario Methodology? This section begins with one major question – what is
the scenario methodology?
To answer this, some history regarding the development of this method should be
mentioned.1 Herman Kahn, a pioneer of the scenario method, in his famous 1962 book Thinking about the Unthinkable, argued
that the decision makers in the United States should think of and prepare for all possible
sequences of events with regard to nuclear war with the Soviet Union.2 Using scenarios and connecting
them with various war games, Kahn showed the importance of thinking ahead in time and using the scenario method based upon
imagination for the future.3 According to Kahn and his colleagues, scenarios are “attempts to describe in some
detail a hypothetical sequence of events that could lead plausibly to the situation envisaged.”4
Similarly, Peter Schwartz defines scenarios as “stories about the way the world might turn out tomorrow, stories that can help us
recognize and adapt to changing aspects of our present environment.”5 Given a variety of definitions of scenarios,6 for the purpose
of this research, I refer to the scenario-building methodology as a means by which people can articulate different
futures with trends, uncertainties, and rules over a certain amount of time . Showing
all plausible future stories and clarifying important trends, scenario thinking enables decision makers to make an important
decision at the present time. Key Terms in the Scenario Methodology The core of the scenario method lies in
enabling policy makers to reach a critical decision at the present time based on thinking
about all plausible future possibilities. Key concepts in the scenario method include: driving forces, predetermined
elements, critical uncertainties, wild cards and scenario plot lines.7 Driving forces are defined as “the causal elements that
surround a problem, event or decision,” which could be many factors, including those “that can be the basis, in different
combinations, for diverse chains of connections and outcomes.”8 Schwartz defines driving forces as “the elements that move the
plot of a scenario, that determine the story’s outcome.”9 In a word, driving forces constitute the basic structure of each scenario
plot line in the scenario-making process. Predetermined elements refer to “events that have already occurred or that almost
certainly will occur but whose consequences have not yet unfolded.”10 Predetermined elements are “givens” which could be safely
assumed and understood in the scenario-building process. Although predetermined elements impact outcomes, they do not have
a direct causal impact on a given outcome. Critical uncertainties “describe important determinants of events whose character,
magnitude or consequences are unknown.”11 Exploring critical uncertainties lies at the heart of scenario construction in the sense
that the most important task of scenario anaysts is to discover the elements that are most uncertain and most important to a
specific decision or event.12 Wild cards are “conceivable, if low probability, events or actions that might undermine or modify
radically the chains of logic or narrative plot lines.”13 In John Peterson’s terms, wild cards are “not simple trends, nor are they
byproducts of anything else. They are events on their own. They are characterized by their scope, and a speed of change that
challenges the outermost capabilities of today’s human capabilities.”14 Wild cards might be extremely important in that in the
process of scenario planning their emergence could change the entire direction of each scenario plot line. A scenario plot line is “a
compelling story about how things happen” and it describes “how driving forces might plausibly behave as they interact with
predetermined elements and different combinations of critical uncertainties.”15 Narratives and/or stories are an essential part of
the scenario method due to the identical structure of analytical narratives and scenarios: “both are sequential descriptions of a
situation with the passage of time and explain the process of events from the base situation into the situation questioned.”16
Process and Purpose of Scenario Analysis Scenario analysis begins with the exploration of driving forces
including some uncertainties. However, scenario building is more than just organizing future
uncertainties; rather, it is a thorough understanding of uncertainties , thereby distinguishing
between something clear and unclear in the process of decision making.17 As Pierre Wack has pointed out, “ By carefully
studying some uncertainties, we gained a deeper understanding of their interplay,
which, paradoxically, led us to learn what was certain and inevitable and what was not.” In other
words, a careful investigation of raw uncertainties helps people figure out more “critical uncertainties” by showing that “what may
appear in some cases to be uncertain might actually be predetermined – that many outcomes were simply not possible.”18
Exploring future uncertainties thoroughly is one of the most important factors in scenario analysis. Kees van der Heijden argues
that in the process of separating “knowns” from “unknowns” analysts could clarify
driving forces because the process of separation between “predetermineds” and
uncertainties demands a fair amount of knowledge of causal relationships surrounding the issue
at stake.19 Thus, in scenario analysis a thorough understanding of critical uncertainties leads to a well-established knowledge
of driving forces and causal relations.20 Robert Lempert succinctly summarized the scenario-construction process as follows:
“scenario practice begins with the challenge facing the decisionmakers, ranks the most significant driving forces according to their
level of uncertainty and their impact on trends seemingly relevant to that decision, and then creates a handful of scenarios that
explore different manifestations of those driving forces.”21
at: menand/tetlock
Tetlock’s study was so biased that it rigged the game against experts—in reality,
experts make better predictions—without defaulting to them, policymakers just
make ideological gut-checks
Caplan 7 - associate professor of economics at George Mason University [Bryan, “Have the
experts been weighed, measured, and found wanting?,” Critical Review 19.1]
This is one of the rare cases where Tetlock gets a little defensive. He writes that he is sorely
tempted to dismiss the objection that “the researchers asked the wrong questions of the wrong
people at the wrong time” with a curt, “‘Well, if you think you’d get different results by posing
different types of questions to different types of people, go ahead.’ That is how science is
supposed to proceed” (184). 3 The problem with his seemingly reasonable retort is that Tetlock
deliberately selected relatively hard questions. One of his criteria was that questions pass the
“don't bother me too often with dumb questions” test. … No one expected a coup in the United
States or United Kingdom, but many regarded coups as serious possibilities in Saudi Arabia,
Nigeria, and so on. Experts guffawed at judging the nuclear proliferation risk posed by Canada
or Norway, but not the risks posed by Pakistan or North Korea. Some “ridiculous questions”
were thus deleted. (244) On reflection, though, a more neutral word for “ridiculous” is “easy.” If
you are comparing experts to the chimp's strategy of random guessing, excluding easy questions
eliminates the areas where experts would have routed the chimps. Perhaps more compellingly, if you are comparing
experts to laymen, positions that experts consider ridiculous often turn out to be popular (Caplan 2007; Somin 2004; Lichter and Rothman 1999; Delli Carpini and Keeter 1996;
Thaler 1992; Kraus, Malmfors, and Slovic 1992). To take only one example, when asked to name the two largest components of the federal budget from a list of six areas, the
National Survey of Public Knowledge of Welfare Reform and the Federal Budget (Kaiser Family Foundation and Harvard University 1995) found that foreign aid was
respondents' most common answer, even though only about 1 percent of the budget is devoted to it. Compared to laymen, then, experts have an uncanny ability to predict
. Tetlock also asks quite a few questions that are controversial among the
experts
If his goal were solely to distinguish better and worse experts, this would be
fine. Since Tetlock also wants to evaluate the predictive ability of the average expert, however,
there is a simple reason to worry about the inclusion of controversial questions: When experts
sharply disagree on a topic, then by definition, the average expert cannot do well. But Tetlock
does more to help the chimp than just avoiding easy questions and asking controversial ones. He
also crafts the response options to make chimps look much more knowledgeable than they are.
foreign aid as a percentage of the budget
themselves.4
When questions dealt with continuous variables (like GDP growth or stock market closes), respondents did not have to give an exact number. Instead, they were asked whether
variables would be above a confidence interval, below a confidence interval, or inside a confidence interval. The catch is that Tetlock picked confidence intervals that make the
chimps' strategy fairly effective: The confidence interval was usually defined by plus or minus 0.5 of a standard deviation of the previous five or ten years of values of the
variable. … For example, if GDP growth had been 2.5 percent in the most recently available year, and if the standard deviation of growth values in the last ten years had been 1.5
Assuming a normal distribution, Tetlock
approach ensures that variables will go up with a probability of 31 percent, stay the same with a
probability of 38 percent, and go down with a probability of 31 percent.5 As a consequence, the
chimp strategy of assigning equal probabilities to all events is almost automatically wellcalibrated. If, however, Tetlock had made his confidence interval zero—or three—standard
deviations wide, random guessing would have been a predictive disaster, and experts would
have shined by comparison. To truly level the playing field between experts and chimps, Tetlock
could have asked the experts for exact numbers, and made the chimps guess from a uniform
distribution over the whole range of possibilities. For example, he could have asked about
defense spending as a percentage of GDP, and made chimps equally likely to guess every
number from 0 to 100. Unfair to the chimps? Somewhat, but it is no more unfair than using
complex, detailed information to craft three reasonable choices, and then concluding that the
chimps' “guesswork” was almost as good as the experts' judgment. To amplify this lesson,
consider the classic question of how long it would take a chimp typing at a keyboard to write
War and Peace. If the chimp could type anything he wanted, the sun might go out first. But
what if each key on the keyboard printed a book rather than a letter, and one of those books was
War and Peace? It is a lot easier for a chimp to “write” War and Peace when someone who
actually knows how to do so paves the chimp's way. At this point, one could reasonably object
that my corrections merely increase the advantage of experts over chimps. But they do nothing
percent, then the confidence band would have been bounded by 1.75 percent and 3.25 percent. (244)
to narrow the gap between experts and the real winners of Tetlock's horserace: case-specific
extrapolations and formal statistical models. Both of these methods continue to work well when
questions are easy and/or require exact numbers. Fair enough, but what are the implications?
Suppose that, properly measured, experts crush chimps, but still lose to extrapolations and
formal models. Does that make experts' forecasting abilities “good,” or “bad”? In my view, the
right answer is: pretty good. Almost no one is smart enough to run extrapolations or estimate
formal models in his head. For experts to match formal models, they would have to approach
Tetlock's questions as a consulting project, not “just a survey.” Speaking at least for my own
discipline, most economists who are seriously interested in predicting, say, GDP growth rely on
formal statistical models. But very few economists would estimate a formal model just to answer
a survey. Our time is too valuable, or, to put it less charitably, we're kind of lazy. It is hardly
surprising, then, that economists lost to formal models, considering the fact that Tetlock took
the time to open his favorite statistical program, and the economists did not. All that this
shows is that statistical forecasting is better than from-the-hip forecasting, and
that experts are not smart enough to do statistical forecasting without the help of a
computer. Experts cannot escape all of Tetlock's indictment. He makes a convincing case that
experts break some basic rules of probability, overestimate their predictive abilities for “nonridiculous” and controversial questions, and respond poorly to constructive criticism. But
contrary to the radical skeptics, experts can easily beat chimps in a fair game. For the chimps to
stand a chance, the rules have to be heavily slanted in their favor. The Egalitarian
Misinterpretation Tetlock tells us that political experts “barely best the chimp.” It is easy to
conclude that these so-called “experts” are a bunch of quacks. Question: What would happen if
the average voter accepted this conclusion? Would he start relying on the winner of Tetlock's
horserace—formal statistical models? No. In all likelihood, if the average voter came to see
political experts as quacks, he would rely even more heavily on his own
preconceptions. As a result, policies would shift in a populist direction. For example, if the
public lost whatever respect it now has for experts, one would expect policy to move away from
the free-trade prescription of the vast majority of economists, and towards the protectionist
policies that most people instinctively favor. If Tetlock is right, wouldn't a shift toward populism
be a good thing—or at least not a bad thing? Many readers will be quick to make this inference,
but it is mistaken. Even though Tetlock races experts against a long list of competitors, he says
very little about the relative performance of experts versus laymen. As far as I can tell, the only
laymen Tetlock tested were a group of: briefly briefed Berkeley undergraduates. In 1992, we
gave psychology majors “facts on file” summaries, each three paragraphs long, that presented
basic information on the polities and economies of Russia, India, Canada, South Africa, and
Nigeria. We then asked students to make their best guesses on a standard array of outcome
variables. (2005, 56) Out of all the competitors in Tetlock's tournament, these undergraduates
came in dead last: The undergraduates were both less calibrated and less discriminating than
professionals working either inside or outside their specialties. … If one insists on thinking like a
human being rather than a statistical algorithm … it is especially dangerous doing so equipped
only with the thin knowledge base of the undergraduates. The professionals—experts and
dilettantes—possessed an extra measure of sophistication that allowed them to beat the
undergraduates soundly. … (56) The upshot is that Tetlock does nothing to show that experts
are “no better than the rest of us.” When he does race the two groups, laymen lose decisively.
Tetlock, like Voltaire, finds that “common sense is not so common.” The poor performance of the Berkeley undergraduates is particularly noteworthy
because these laymen were elite in absolute terms, and received basic information before they made their predictions. We can only imagine how poorly
the average American would have done using nothing but the information in his head—and shudder when we realize that “the average American, using
nothing but the information in his head” roughly describes the median American voter.6
at: security/pos peace
Zero chance they cause foreign policy realignment—pursuit of security is locked in
McDonough 9 (David. S. McDonough, Fellow at the Centre for Foreign Policy Studies at
Dalhousie University, “Beyond Primacy: Hegemony and ‘Security Addiction’ in U.S. Grand
Strategy”, Winter 2009, Orbis, ScienceDirect)
The reason that the current debate is currently mired in second-order issues of multilateral versus unilateral legitimacy can be attributed to the post 9/11 security environment.
A grand strategy is, after all, ‘‘a state’s theory about how it can best cause security for itself.’’ 35 It
would be prudent to examine why the neoconservative ‘‘theory’’ proved to be so attractive to American decision-makers after the 9/11 attacks, and why the Democrats
have begun to rely on an equally primacist ‘‘theory’’ of their own. As Charles Kupchan has demonstrated, a sense of vulnerability is
often directly associated with dramatic shifts in a state’s grand strategy. Kupchan is, of course, largely concerned with vulnerability to changes in the global distribution of
the 9/11 terrorist attacks have dramatically increased the U.S. sense of strategic
vulnerability to both global terrorist organizations like Al Qaeda and even to more traditional threats that are seen, as Donald Rumsfeld said, ‘‘in a dramatic new
power. 36 Even so,
light–through the prism of our experience on 9/11.’’ 37 Perhaps more than any previous terrorist action, these attacks demonstrated the potential influence of non-state terrorist
groups like Al Qaeda. U.S. strategic primacy makes conventional responses unattractive and ultimately futile to potential adversaries. The country’s societal vulnerability to
terrorist attacks will likewise lead to extremely costly defensive reactions against otherwise limited attacks. For
both the United States and its asymmetrical adversaries, the advantage clearly favors the offense over the defense. With the innumerable list of potential targets, ‘‘preemptive
and preventive attacks will accomplish more against. . .[terrorists or their support structures], dollar for dollar, than the investment in passive defenses.’’ 38 As former
Undersecretary of Defense for Policy Douglas Feith has argued, a primary reliance on defense requires instrusive security measures that would inevitably endanger American
civil liberties and curtail its free and open society. 39 Strategic preponderance ensures that the United States will continue to face adversaries eager to implement asymmetrical
tactics, even as it offers the very resources necessary to implement both offensive and less effective defensive measures. Unfortunately, terrorist groups with strategic reach (i.e.,
capable of influencing the actions of states) will likely increase in the coming years due to a combination of factors, including the ‘‘democractization of technology,’’ the
As more groups are imbued with sophisticated technological
capabilities and are able to employ increasingly lethal weapons, the United States will be forced to rely even further on
its unprecedented global military capabilities to eliminate this threat. The global war on terror, even with tactical successes against al Qaeda, will likely result
‘‘privatization of war’’ and the ‘‘miniaturization of weaponry.’’
in an inconclusive ending marked by the fragmentation and proliferation of terrorist spoiler groups. The ‘‘Israelization’’ of the United States, in which ‘‘security trumps
everything,’’ will be no temporary phenomenon. 40 Realism provides an insufficient means for understanding the current post-9/11 strategic threat environment and
underestimates the potential impact of the terrorist threat on the American sense of vulnerability. Globalized terrorism must be confronted by proactive measures to reduce the
domestic vulnerability to attack and to eliminate these organizations in their external sanctuaries. Even then, these measures will never be able to ensure ‘‘perfect security.’’ As a
significant public pressure for expanded security measures will arise after any attack. The
billions of dollars will
continue to be spent by both parties in a never-ending competition to convince the American
public that their party’s programs are different and more likely to succeed.’’ 41 This addiction has an
important impact on the dramatically rising levels of homeland security spending. Indeed, while this increased spending is
an inevitable and prudent reaction to the terrorist threat, it also creates high public expectations that will only amplify outrage in a security
result,
United States will be consumed with what Frank Harvey has termed security addiction: ‘‘As expectations for acceptable levels of pain decrease,
failure. 42 Relatedly, American strategic preponderance plays an important role in facilitating a vigorous international response to globalized terrorism, including the use of
coercive military options and interventions. A primacist strategy has the dual attraction of both maximizing U.S. strategic dominance and convincing the public of a party’s
the Republicans had developed a strong advantage in electoral
politics by its adherence to a strong military and aggressive strategy, and the Democrats in turn
‘‘learned the lesson of its vulnerability on the issue and [...] explicitly declared its devotion to national security and support for the
national security credentials. Indeed,
military.’’ 43 The 9/11 attacks may not have altered the distribution of power amongst major states, but it has directly created a domestic political situation marked by an
addiction to expansive security measures that are needed to satisfy increasingly high public expectations. In such a climate, it is easy to see why the neo-conservatives were so
The fact that the United States has effectively settled on a grand
strategy of primacy in the post-9/11 period should come as no surprise. It is simply
inconceivable that a political party could successfully advocate a grand strategy
that does not embrace military preeminence and interventionism, two factors that are seen to provide
a definite advantage in the pursuit of a ‘‘global war on terror.’’ Political parties may disagree on the necessary tactics to eliminate the
terrorist threat. But with increased vulnerability and security addiction, the United States will continue to embrace strategies of
primacy– rather than going ‘‘beyond primacy’’–for much of the Long War.
successful in selling their strategic vision.
Even if gender dynamics are involved in all wars, that doesn’t mean they turn our
impacts or have an explanation for specific wars
Thom Workman (Assistant Professor of Political Science University of New Brunswick) January
1996 “Pandora's Sons: The Nominal Paradox of Patriarchy and War”
http://www.yorku.ca/yciss/publications/OP31-Workman.pdf
To the extent that war is contingent upon such gendered constructs, constructs that the practice itself appears to threaten and endanger, the
relationship between war and gender might be said to be paradoxical. The paradoxical dynamic between gender and war, however, is softened by the
profundity of the links between war and patriarchy. The gendering of experiences during war, along with the restoration of traditional gendered
constructs after war, more than compensate for any war induced sundering of the patriarchal tapestry. While
the practice of war
suggests that it might encourage a rupture in the gendered fabric of society, it overwhelmingly
contributes to patriarchal reproduction. Questions oriented around the emancipatory potential of war where women are
concerned, therefore, run the risk of losing a perspective on the overall role of modern warfare in the reproduction of women's oppression. II The
gender critique of war provides a generalized account of wars and the way they are fought. The
gender critique tells us why we have wars at all. While it is suggestive with respect to the
frequency, character, and scope of war, it does not try to account for the timing and location of
specific wars. It tells us why war is viewed widely as an acceptable practice or way to resolve human differences (although this acceptance
invariably is accompanied with obligatory protestations of reluctance). The gender critique of war, for example, cannot
account for the timing and location of the 1991 Gulf War, although it can provide an explanation of the warring
proclivities of modern Western states, especially the inconsistency between the peaceful rhetoric of the US and its incessant warring practices. It can
account for the spectre of war in the aftermath of Vietnam, with the end of the Cold War, and with the election of George Bush. It is less able to account
for the appearance of war in the Middle East in January of 1991. The opening intellectual orientation of the gender critique of war rests upon a
constructivist view of human understanding and practice, that is, a view that anchors practices, including war, within humankind's self-made historicocultural matrix. This view is contrasted starkly with those that ground human practices psychologically or biologically or genetically. War is not viewed
as a natural practice as if delivered by the Gods; it arises out of human-created understandings and ways-ofliving that have evolved over the millennia.
More specifically, the assumption that men (the nearly exclusive makers and doers of war) are biologically hard-wired for aggression and violence is
resisted, as is the related notion that women are naturally passive and non-violent. The explanation for war will not be found in testosterone levels. It is
not the essential or bio-social male that makes war. War is the product of the gendered understandings of life—understandings of the celebrated
masculine and the subordinated feminine—that have been fashioned over vast tracts of culturaltime. And since war arises from human-created
understandings and practices it can be removed when these understandings change. War is not insuperable. Indeed, the rooting of war in human
created phenomena is recognized as a response to the political incapacitation associated with biologically determinist arguments: "Attempts of genetic
determinists to show a biological basis for individual aggression and to link this to social aggression, are not only unscientific, but they support the idea
that wars of conquest between nations are inevitable."8
legislation cp
1nc legislation cp
The 50 United States state governments should regulate police surveillance
technologies, including <the plan’s technology>, by curtailing the indiscriminate
collection and retention of data collected by law enforcement surveillance
technology, establishing a maximum timeframe for data retention, limiting the
sharing of personally identifiable information, requiring a legitimate investigative
purpose for identifying and accessing data, and providing the state attorney
general authority to bring lawsuits against police departments that fail to abide by
these regulations.
Solves the aff --- avoids Court/federal DA’s
Rushin 13 [Stephen, Visiting Assistant Professor, University of Illinois College of Law, “The
Legislative Response to Mass Police Surveillance,” 79 Brooklyn L. Rev. 1, Fall 2013, Brooklyn
Law Review] //khirn
In this article, I
present a model statute that a state could enact to regulate the digitally efficient
investigative state. This statute adheres to three major principles about the regulation of police
surveillance. First, any regulation must provide clear standards that law enforcement can easily
understand and apply. n23 Second, as communities differ substantially in their need for public surveillance, any
legislation must provide local municipalities with some ability to vary standards to
meet their legitimate law enforcement needs . Third, any regulation must articulate the
narrow scope of technologies and devices that fall under its regulatory purview. Because
technology changes rapidly, this ensures that the law will not be misapplied to future,
emerging technologies.
The model statute I offer in this article honors these three important principles. The statute regulates the
indiscriminate collection and retention of data by law enforcement surveillance technologies,
while also permitting the use of technological surveillance for mere observational comparison.
The statute [*5] establishes a maximum length of time for data retention . It also limits the
sharing of personally identifiable information, and requires that law enforcement demonstrate a
legitimate investigative purpose for identifying and accessing data. To enforce these broad
regulations, the statute gives the state attorney general the authority to bring lawsuits against
police departments that fail to abide by these regulations and excludes from criminal court any
locational evidence obtained in violation of the statute.
This statute would not address all of the concerns of the digitally efficient investigative state. After
all, no statute can fully predict and control the development of new and emerging technologies. Nevertheless, it would be a
major step toward coherency . This legislation would give a police department discretion to
craft unique data policies tailored to its community's specific needs, while also encouraging
some level of statewide consistency. To date, only a small handful of law review articles have
addressed the unique issues raised by digitally efficient community surveillance technology,
such as automatic license plate readers (ALPR). n24 Furthermore, none of this work has offered a
comprehensive legislative response that could guide future regulation. Thus, this article fills a void in the
available legal scholarship.
2nc crime/terror net benefit
Allows flexible implementation that solves the crime/terror DA
Rushin 13 [Stephen, Visiting Assistant Professor, University of Illinois College of Law, “The
Legislative Response to Mass Police Surveillance,” 79 Brooklyn L. Rev. 1, Fall 2013, Brooklyn
Law Review] //khirn
Second, communities
differ in their need for public surveillance. For example, New York City and
Washington, D.C. have previously been targets for international terrorism. Given their plethora
of high value targets and landmarks, these two cities may have a legitimate need for more public
surveillance than other communities. n279 In arguing for a malleable standard for local departments, the IACP has
suggested that some locations--namely bridges, critical infrastructure, and other high value targets--demand more surveillance and
data retention to ensure public safety. n280 As an example, the IACP cites the fact that locations targeted on September 11, 2001
were part of a terrorist attack that took many years to plan and execute. n281 [*45] Thus, certain communities may
legitimately need and prefer longer retention periods around certain important targets. Conversely,
a medium-sized suburb with low crime that places a higher value on privacy might prefer a bar
on the retention of surveillance data all together. While any state statute should establish minimally acceptable
requirements on data retention, the law must be sufficiently broad to permit necessary variation at the local level. A one-sizefits-all approach may not be workable, given the unique law enforcement needs of each city.
Third, any regulation must clearly articulate the narrow scope of technologies and devices that fall
under its regulatory purview. Because technology changes rapidly, this ensures that the law will not be misapplied to
future, emerging technologies. Kerr has previously argued that regulations of technology ought to proceed cautiously until the
technology has stabilized. n282 Technology may have unforeseen uses that will take time to develop and understand. For example,
in 1988, Congress passed the Video Privacy Protection Act. n283 This law protected the privacy of videotape rental information.
n284 Congress passed the law after Judge Robert Bork's video rental history became public during his Supreme Court nomination
process. n285 But in crafting this limitation on video rentals, Congress defined the term "video tape service provider" expansively as
"any person, engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual
material." n286
2nc solvency
The regulations set forth by the counterplan solve any negative usage of the aff
Rushin 13 [Stephen, Visiting Assistant Professor, University of Illinois College of Law, “The
Legislative Response to Mass Police Surveillance,” 79 Brooklyn L. Rev. 1, Fall 2013, Brooklyn
Law Review] //khirn
[*51] C. Model Statute to Regulate Police Surveillance
The presently available statutes and model guidelines suggest a key set of concerns that any
future state legislative body must consider. They demonstrate five common regulatory needs:
data retention, identification, access, sharing, and training. The model statutory language I offer
includes a possible solution for each of these areas. In doing so, I also try to honor the foundational
principles for the regulation of police surveillance identified above. The model statute provides a
clear standard that law enforcement agencies can implement. It attempts to give departments
some latitude to alter their own policies to meet local needs. But the law also includes specific and
detailed regulations in hopes of preventing organizational mediation.
The proposed statute also includes multiple enforcement mechanisms to ensure compliance.
The model excludes from criminal court any evidence obtained in violation of this statute, thus
removing the incentive for police departments to violate the policy. Of course, evidentiary exclusion is
"limited as a means for promoting institutional change" because it is filled with exceptions and is narrower than the scope of police
misconduct. n330 Thus, I propose two additional enforcement mechanisms. First, the model statute gives the state
attorney general authority to initiate litigation against departments that fail to comply with these
mandates. Other statutes regulating police misconduct, like 42 U.S.C. § 14141, have used a similar
mechanism. n331 Second, the model mandates periodic state audits of departmental policies and
data records to ensure compliance. Overall, the proposed law broadly addresses many of the
problems implicit in the digitally efficient state and establishes a number of enforcement
mechanisms to ensure organizational compliance.
1. Applicability, Definitions, and Scope
The first part of the proposed statute defines the scope of the legislation, including the
technologies regulated by the statute. In this section of the statute, I tried to reflect the foundational
principle of regulating police surveillance technologies by creating a tightly defined scope of presently available technologies that fall
under the statute's regulatory purview. This might make the statute under-inclusive at some point in [*52]
the future, but works to the benefit of avoiding over-inclusivity that can stifle the development of
new technologies. n332
§ 1 Applicability, Definitions, and Scope
This statute applies to all community surveillance technologies used by law enforcement that collect personally identifiable,
locational data.
"Community surveillance technology" means any device intended to observe, compare, record,
or
ascertain information about individuals in public through the recording of personally
identifiable information. This includes, but is not limited to, surveillance collected with automatic
license plate readers, surveillance cameras, and surveillance cameras with biometric
recognition.
This scope provision specifically addresses community surveillance devices, such as ALPR and
surveillance cameras, as distinguished from traditional surveillance tools like GPS devices and
wiretaps. As I have previously argued, "networked community surveillance technologies like ALPR surveil an entire community
as opposed to a specific individual." n333 While the use of a GPS device to monitor the movements of one criminal suspect over a
long period of time might be constitutionally problematic, such a practice raises an entirely different set of public policy questions.
At minimum, the kind of tracking at issue in Jones was narrowly tailored to only affect one criminal suspect. The digitally efficient
investigative state uses community surveillance technologies like ALPR and surveillance cameras that can potentially track the
movements of all individuals within an entire community regardless of whether there is any suspicion of criminal wrongdoing.
Hence, this statute is carefully limited to a small subset of technologies that pose similar risks and thus require similar regulation.
2. Differential Treatment of Observational Comparison and Indiscriminate Data Collection
Next, I propose that state laws
should differentiate between observational comparison and
indiscriminate data collection. n334 The model law permits the use of community [*53] surveillance
technologies for observational comparison. When a department uses these technologies for
observational comparison, the device is "an incredibly efficient law enforcement tool that is
reasonably tailored to only flag the suspicious." n335
§ 2 Observational Comparison and Indiscriminate Data Collection
Police departments may use community surveillance technologies as needed for observational
comparison. But police departments using community surveillance technologies for
indiscriminate data retention must abide by data integrity, access, and privacy restrictions
outlined in § 3 through § 6.
"Observational comparison" is defined as the retention of locational or identifying data after an
instantaneous cross-reference with a law enforcement database reveals reasonable suspicion of
criminal wrongdoing.
"Indiscriminate data collection" is defined as the retention of locational or identifying data
without any suspicion of criminal wrongdoing.
This distinction strikes a reasonable balance by facilitating law enforcement efficiency in
identifying lawbreakers, but also avoiding the unlimited and unregulated collection of data. When applied to
ALPR, this statute would mean that police could use that technology to flag passing license
plates that match lists of stolen cars or active warrants. But they could not retain locational data
on license plates that do not raise any concerns of criminal activity without abiding by the
regulations that follow.
3. Data Integrity, Access, and Privacy
I recommend that the indiscriminate collection of data be subject to four separate requirements that limit the retention,
identification, access, and sharing of data. The statutory language below was designed to give law enforcement some leeway to create
workable internal policies that meet organizational and community needs. As a result, the policy simply serves as a minimum floor
of regulation, above which departments could adopt their own regulations.
[*54] § 3 Data Retention
Police departments using community surveillance technologies for indiscriminate data
collection must establish and publicly announce a formalized policy on data retention. Departments
may not retain and store data for more than one calendar year unless the data is connected to a specific and ongoing criminal
investigation.
The one-year retention period is the most significant regulation this statute would place on indiscriminate data collection. Even the
IACP acknowledges that the "indefinite retention of law enforcement information makes a vast amount of data available for
potential misuse or accidental disclosure." n336 Without limits on retention, police surveillance can develop into "a
form of undesirable social control" that can actually "prevent people from engaging in activities
that further their own self-development, and inhibit individuals from associating with others, which is sometimes
critical for the promotion of free expression." n337 At the same time, law enforcement often claim that information
that seems irrelevant today may someday have significance to a future investigation. n338
Without regulation, there is a cogent argument to be made that police would have every
incentive to keep as much data as possible. n339 Thus, I recommend that data retention be capped at one year.
This would prevent the potential harms of the digitally efficient investigative state that come
from long-term data aggregation.
The one-year time window represents a reasonable compromise. The median law enforcement department today
retains data for around six months or less. n340 But before accepting this retention limit, state legislatures
should critically assess their own state needs to determine whether there is a legitimate and
verifiable need for retention beyond this point. The next section of the statute addresses identification of stored
data.
[*55] § 4 Data Identification
Police employees must have a legitimate law enforcement purpose in identifying the person
associated with any data retained by community surveillance technologies.
The limit on data identification is somewhat different than most current statutory arrangements.
This measure would, potentially, limit the ability of law enforcement to use the stored data for
secondary uses. A secondary use is the use of data collected for one purpose for an unrelated, additional purpose. n341 This
kind of secondary use can generate[] fear and uncertainty over how one's information will be used in the future." n342 By limiting
the identification of the data, the statute attempts to prevent such secondary use. Another way
to avoid secondary use is to limit access to data and external sharing, as I attempt to do in the
next portions of the statute.
§ 5 Internal Access to Stored Data
Departments must establish a formal internal policy documenting each time a police employee
accesses community surveillance databases. Departments shall not allow anyone except
authorized and trained police employees to access and search these databases.
§ 6 External Data Sharing
Police departments may share information contained in community surveillance databases with
other government agencies, as long as all participating departments honor the minimum
requirements established in this statute.
I propose that police limit access to data even among police employees. And each time a police employee accesses data, I require that
the department document this event. This achieves two results. First, it creates a record of previous access
points that the attorney general or state criminal courts can, theoretically, use to hold police
accountable for improper data access. Secondly, and relatedly, this formalized documentation process
may prevent nefarious secondary uses of the information. Because some evidence suggests that police retain
community surveillance data in databases accessible to [*56] private companies and civilians, n343 this would place the
impetus on police departments to take responsibility for internal data management. And while
the model statute does not limit the sharing of digitally efficient data, it does require that all
departments with access to data abide by the statutory limits. This would promote the sharing of
data across jurisdictional lines to facilitate efficient investigations, while providing a consistent
level of minimum privacy protection in the state.
Attorney general enforcement solves --- police will follow the counterplan’s
restrictions
Rushin 13 [Stephen, Visiting Assistant Professor, University of Illinois College of Law, “The
Legislative Response to Mass Police Surveillance,” 79 Brooklyn L. Rev. 1, Fall 2013, Brooklyn
Law Review] //khirn
To remedy the concern over resource limitations, I
propose that the state attorney general have statutory [*59]
authority to audit police departments. This would expand the regulatory reach of the statute
while also harnessing the power of public opinion to force police compliance. This
would also guarantee regular interaction between the attorney general and local
departments, allowing the attorney general to check up on data practices. Rather than facing
only the remote possibility of a pattern or practice lawsuit, departments would be faced with
regular, random audits of their data policies. Because the results of this regular audit system would be posted
online, the departments would also be publicly accountable if they fail to abide by the
statute . This could incentivize administrators to follow state law for fear of public
embarrassment that could threaten their job security. Rachel Harmon has suggested the DOJ utilize a similar
policy to overcome resource limits and expand the potential impact of § 14141. n358
In sum, these regulations attempt to holistically regulate the digitally
efficient investigative state
by limiting data retention and ensuring stored data are handled in a way that protects individual
privacy, while still leaving ample room for legitimate law enforcement purposes. The enforcement
mechanisms are sufficiently varied to ensure widespread compliance. And the statute as a whole
follows the foundational principles of police surveillance regulations. The regulations are clear
enough to avoid organizational mediation . They allow for individual variation. And they
define the scope narrowly to only include a small subset of technologies like ALPR and
surveillance cameras that pose a similar social risk.
CONCLUSION
The digitally efficient investigative state is here to stay. The empirical evidence clearly
demonstrates that extremely efficient community surveillance technologies are an increasingly
important part of American law enforcement. The language in Jones suggests that the judiciary may somehow limit
public surveillance technologies in the future. To do so, the Court will have to confront the jurisprudential assumptions of police
surveillance. That is no easy task. Much of the Court's previous treatment of police surveillance has rested on the belief that
individuals have no expectation of privacy in public places, and [*60] that surveillance technologies that merely improve the
efficiency of police investigations comport with the Fourth Amendment.
At present,
it remains unclear how and when the Court will begin to alter these important
assumptions. The language in Jones offers little guidance. But even when the Court does eventually broach this
subject, the judiciary's institutional limitations will prevent it from crafting the type of expansive
solution necessary to protect against the harms of the digitally efficient investigative state. In the
absence of regulation, police departments across the country have developed dramatically different
policies on the use of public surveillance technologies. Legislative bodies must take the
lead and proactively limit the retention, identification, access, and sharing of personal
data acquired by digitally efficient public surveillance technologies. The model state statute proposed in this
Article would be a substantial step in reigning in the "unregulated efficiency of emerging investigative and surveillance
technologies." n359
court stripping cp
1nc court stripping
The United States Congress should curtail/prohibit <technology that the plan prohibits>.
Congress should exercise its Article III power to eliminate the jurisdiction of any
Federal Court to hear any challenges to the constitutionality of this legislation or
to the authority of Congressional interpretation of Congress’ Article VI treaty
powers. Congress should direct that the judges of every state, pursuant to Article
VI, treat this law as authoritative, that it must be followed, and that the United
States Supreme Court, pursuant to its holdings in Testa, ensure that state courts
both follow this directive and accept the interpretation of Congress of the
Constitution as authoritative.
Solves the aff – The counterplan creates a progressive moment in Congress – it
spills over and would empower the Congress to reassert its authority
West 94 [Robin, Prof. of Law. Georgetown, Progressive Constitutionalism, 1994, p. 218-220]
The concluding section of this chapter argues that even in the short term, and certainly in the long term, there are good reasons for
developing an alternative, non- or postliberal, and explicitly progressive paradigm of constitutional interpretation, even if it is clear,
as it seems to be, that the present conservative Supreme Court will not embrace it. It also argues, however, that for both
strategic and theoretical reasons, the proper audience for the development of a progressive
interpretation of the Constitution is Congress rather than the courts. The progressive Constitution should
be meant for, and therefore must be aimed toward, legislative rather than adjudicative change. The strategic reasons for this
proposed reorientation of progressive constitutional discourse should be self-evident. Although the progressive Con-
stitution is arguably consistent with some aspects of the liberal-legalist paradigm of the middle of this century, it is utterly
incompatible with the conservative paradigm now dominating constitutional adjudication. It does
not follow, however, that the progressive Constitution is incompatible with all constitutional decision making: both legislatures and
citizens have constitutional obligations, engage in constitutional discourse, and can be moved, presumably, to bring electoral politics
in line with the progressive mandates of the Constitution, as those mandates have been understood and interpreted by progressive
constitutional lawyers and theorists. I also argue, however, that for theoretical and strategic reasons, the long-range success,
the sense, and even more modestly the relevance
of the progressive interpretation of the Constitution depend
not only on the merits of its interpretive claims but also, and perhaps more fundamentally, on a federal Congress
reenlivened to its constitutional obligations. First, of course, it is Congress, not the Supreme Court, that is
specifically mandated under the Fourteenth Amendment to take positive action to ensure equal protection and due process rights—
the core constitutional tools for attacking illegitimate social and private power. If Congress is ever to fulfill this
obligation, it will need the guidance of interpretive theories of the meaning of equal protection, due process,
equality, and liberty that are aimed explicitly toward the context of legislative action and are not constrained
by the possibilities and limits of adjudicative law. But more fundamentally, the progressive Constitution, I
argue, will never achieve its full meaning—and worse, will remain riddled with paradox and contradiction—so long
as it remains in an adjudicative forum. This is not only because of the probable political composition of the Court
over the next few decades, but also because of the philosophical and political meanings of adjudicative law itself: the
possibilities of adjudicative law are constrained by precisely the same profoundly conservative
attitudes toward social power that underlie conservative constitutionalism. By acquiescing in a
definition of the Constitution as a source of adjudicative law, progressives seriously undermine its progressive potential. Only by
reconceptualizing the Constitution as a source of inspiration and guidance for legislation, rather than a superstructural
constraint on adjudication, can we make good on its richly progressive promise. Therefore, the concluding
section of this chapter argues that, for structural long-term as well as strategic short-term reasons, the progressive Constitution—the
cluster of meanings found or implanted in constitutional guarantees by modern progressive scholars—should be addressed to the
Congress and to the citizenry rather than to the courts. The goal of progressive constitutionalists, both in the
academy and at the bar, over the coming decades should
be to create what Bruce Ackerman has called in other contexts a
"constitutional moment" 20 and what Owen Fiss might call more dramatically an "interpretive crisis.' Progressives
need to create a world in which it is clear that a progressive Congress has embraced one set of
constitutional meanings, and the conservative Court a contrasting and incompatible set. The
Supreme Court does, and always has, as Fiss reminds us, read the Constitution so as to avoid crisis.22 The
lesson to draw is surely
that only when faced with such a constitutional moment will this
conservative Court change paths.
Supreme Court activism destroys participatory democracy and leads to judicial
supremacy – only a congressional override and can solve
Lipkin 6 [Robert - Professor of Law, Widener University School of Law, Ph.D., Princeton
University, 1974, J.D., UCLA, 1984, “WHICH CONSTITUTION? WHO DECIDES?,” 28 Cardozo
L. Rev. 1055, lexis]
Does any institution exercising such enormous unchecked power and authority comport with republican self-government? If the
answer is no, what is the remedy? This Article first explains why such unchecked power and authority are
incompatible with republican democracy. In a nutshell, republican democracy is a form of selfgovernment where
complex deliberation is designed to articulate the community’s real interests or what the community reflectively judges its real
interests to be. Republican democracy rejects both direct and representative majoritarian democracy.2 Instead, it embraces the
distinction between the community’s reflective judgment and the everyday attitudes of the populace.3 Republican democracy
fortifies this distinction by constructing deliberative governmental filters to transform the electorate’s raw, unrefined, and possibly
transient beliefs into the reflective judgment of the community. Judicial review may be one of these filters by providing a chance for
the lawmaking community to express second-thoughts—or critical reflection—concerning legislation and other governmental
conduct.4 Ultimately, however, republican democracy is committed to the proposition that the electorate—after refining its
judgment deliberatively through its representatives and other institutional procedures—is the final arbiter of constitutional
meaning. Republican democracy founders when any governmental branch has final unchecked authority and uses it to shortcircuit
this process. In the American republic, no other political institution has anything like the judiciary’s
unchecked authority to invalidate or sustain5 federal and state legislation simply because the
Court views such legislation to be unconstitutional.6 This power—known as judicial supremacy—is
essentially a failure of accountability,7 not, as many jurists and commentators contend, a countermajoritarian
difficulty.8 Even if a super-majority or a mere plurality were required to pass ordinary legislation, the problem of judicial
supremacy would persist—not because it is countermajoritarian—but rather because no constitutional actor can effectively check the
Court when it chooses to speak.9 This point requires emphasis. Accountability need not be majoritarian to its core. Even in such
undemocratic governments as monarchies, aristocracies, or theocracies, a failure of accountability may exist when the institution
primarily designated to create law is checked by another institution whose role as authoritative reviewer has been garnered
informally. In other words, even when the primary designated decision-maker is unaccountable to the people, the problem of
accountability is present if a formally undesignated decision-maker can overturn or significantly modify the primary designated
decision maker’s decisions even if only on special occasions. Hence, one salient form of unaccountability is unchecked power by an
undesignated decision maker.10 Defending the practice of judicial supremacy requires too great a
tolerance for almost complete unaccountability in deciding constitutional meaning.11 This creates a
republic where the constitutional choices of the people are often blocked or come to a virtual dead-end. Such a dead-end republic
can, of course, survive; ours has for over 200 years. But it prevents citizens nevertheless from engaging in the joint enterprise of
integrating and reconstructing their reflective judgments into a conception of the common good as the only authentic fount of
sovereign authority over the society’s future.12 Rather than offering an internal remedy of judicial selfregulation— requiring judges
to adopt judicial restraint13 or to adhere to the “correct” judicial methodology—I offer instead an external solution to be
imposed on judges through a congressional override of Supreme Court decisions. My suggested
remedy does not eliminate judicial review, but rather augments this important constitutional practice by fashioning an institutional
safety net that permits the best reflective judgment of the people to prevail over the best reflective judgment of the courts.14 Article
V makes it clear that the Constitution is committed to the proposition that the best reflective judgment of the electorate should
prevail over other constitutional actors.15 However, while recognizing the promise of the electorate’s ultimate role in constitutional
change, Article V fails to fulfill this promise.16 This Article proposes a congressional override as a more effective way for the
electorate to fulfill its role as the ultimate constitutional arbiter. The idea of a congressional override has a grand legacy.17 But it is
not the only possible solution to the problem of judicial supremacy. Among the more prominent solutions are: councils of revision;
impeaching Justices; recalling Justices; electing Justices; a periodic reappointment procedure; referenda; random and temporary
selection of appellate judges to serve as Justices on the Court; formal term limits or informal incentives such as attractive retirement
packages; and most recently and controversially, congressional standing to challenge any attempt to strike down a congressional
statute. Each of these remedies warrants examination, and each has costs and benefits. However, a congressional override
of Supreme Court decisions as the solution to the problem of judicial supremacy has the
advantage of resting the authority for constitutional decision-making in the governmental body
representative of the electorate and one that can be held accountable by it.18
Participatory democracy prevents nuclear war and American economic collapse
Manley and Dolbeare 87 (John F., professor emeritus of political science at Stanford
University and Kenneth M., retired professor of political science who taught for many satisfying
years at the universities of Wisconsin, Washington, Massachusetts, and Colorado-Denver, "The
Case Against the Constitution" p. 138)
Our political system works by fits and starts. It is neither responsive nor accountable and it lacks solid grounding in the body
of its people. It sits and waits for the next crisis. Unfortunately, to solve that crisis, it may have to transform itself into
something that will be very difficult to rationalize as "democracy." We have not addressed the great issues of
nuclear war, planetary survival, or even American economic viability in a drastically changing world
economy - not because the people don't care, but because there is no linkage between the people's felt needs and their policymakers.
No such basic policies can be implemented, even if policymakers were to concur, without the
sustained support of some major portion of the people.
2nc gender impact
The current system fails – federal courts do not hold the same value to women’s
lives as they do men’s
West 88 (Robin West, Professor at Georgetown University Law Center, 1988, “Jurisprudence
and Gender”)
By the claim that modern jurisprudence is "masculine," I mean two things. First, I mean that the
values, the dangers, and what I have called the "fundamental contradiction" that characterize
women's lives are not reflected at any level whatsoever in contracts, torts, constitutional law, or
any other field of legal doctrine. The values that flow from women's material potential for physical connection are not
recognized as values by the Rule of Law, and the dangers attendant to that state are not recognized as dangers by the Rule of Law.
First, the Rule of Law does not value intimacy-its official value is autonomy. The material
consequence of this theoretical undervaluation of women's values in the material world is that
women are economically impoverished. The value women place on intimacy reflects our existential and material
circumstance; women will act on that value whether it is compensated or not. But it is not. Nurturant, intimate labor is
neither valued by liberal legalism nor compensated by the market economy. It is not
compensated in the home and it is not compensated in the workplace-wherever intimacy is, there is no
compensation. Similarly, separation of the individual from his or her family, community, or children is not understood to be a harm,
and we are not protected against it. The Rule of Law generally and legal doctrine in its particularity are coherent reactions to the
existential dilemma that follows from the liberal's description of the male experience of material separation from the other: the
Rule of Law acknowledges the danger of annihilation and the Rule of Law protects the value of
autonomy. Just as assuredly, the Rule of Law is not a coherent reaction to the existential dilemma
that follows from the material state of being connected to others, and the values and dangers
attendant to that condition. It neither recognizes nor values intimacy, and neither recognizes nor protects
against separation. Nor does the Rule of Law recognize, in any way whatsoever, muted or unmuted, occasionally or
persistently, overtly or covertly, the contradiction which characterizes women's, but not men's, lives:
while we value the intimacy we find so natural, we are endangered by the invasion and dread the
intrusion in our lives which intimacy entails, and we long for individuation and independence. Neither sexual
nor fetal invasion of the self by the other is recognized as a harm worth bothering with. Sexual
invasion through rape is understood to be a harm, and is criminalized as such, only when it
involves some other harm: today, when it is accompanied by violence that appears in a form men
understand (meaning a plausible threat of annihilation); in earlier times, when it was understood as theft of another man's
property. But marital rape, date rape, acquaintance rape, simple rape, unaggravated rape, or as Susan
Estrich wants to say "real rape"8 2 are either not criminalized, or if they are, they are not punished - to do so
would force a recognition of the concrete, experiential harm to identity formation that sexual
invasion accomplishes. Similarly, fetal invasion is not understood to be harmful, and therefore the
claim that I ought to be able to protect myself against it is heard as nonsensical. The argument that the
right to abortion mirrors the right of self defense falls on deaf ears for a reason: the analogy is indeed flawed. The right of self
defense is the right to protect the body's security against annihilation liberally understood, not invasion. But the danger an
unwanted fetus poses is not to the body's security at all, but rather to the body's integrity. Similarly, the woman's fear is
not
that the she will die, but that she will cease to be or never become a self. The danger of unwanted
pregnancy is the danger of invasion by the other, not of annihilation by the other. In sum, the Rule of Law does not
recognize the danger of invasion, nor does it recognize the individual's need for, much less entitlement
to, individuation and independence from the intrusion which heterosexual penetration and fetal
invasion entails. The material consequence of this lack of recognition in the real world is that women are
objectified-regarded as creatures who can't be harmed. The second thing I mean to imply by the phrase
"masculine jurisprudence" is that both liberal and critical legal theory, which is about the relation between law and life,
is about men and not women. The reason for this lack of parallelism, of course, is hardly benign neglect. Rather, the
distinctive values women hold, the distinctive dangers from which we suffer, and the distinctive
contradictions that characterize our inner lives are not reflected in legal theory because legal
theory (whatever else it's about) is about actual, real life, enacted, legislated, adjudicated law, and women have, from
law's inception, lacked the power to make law protect, value, or seriously regard our experience.
Jurisprudence is "masculine" because jurisprudence is about the relationship between human beings and the laws we actually have,
and the laws we actually have are "masculine" both in terms of their intended beneficiary and in authorship. Women are
absent from jurisprudence because women as human beings are absent from the law's
protection: jurisprudence does not recognize us because law does not protect us. The implication for
this should be obvious. We will not have a genuinely ungendered jurisprudence (a jurisprudence
"unmodified" so to speak) until we have legal doctrine that takes women's lives as seriously
as it takes men's . We don't have such legal doctrine. The virtual abolition of patriarchy is the necessary
political condition for the creation of non-masculine feminist jurisprudence. It does not follow, however, that there is no such thing
as feminist legal theory. Rather, I believe what is now inaccurately called "feminist jurisprudence" consists of two
discrete projects. The first project is the unmasking and critiquing of the patriarchy behind
purportedly ungendered law and theory, or, put differently, the uncovering of what we might call "patriarchal
jurisprudence" from under the protective covering of "jurisprudence." The primary purpose of the critique of
patriarchal jurisprudence is to show that jurisprudence and legal doctrine protect and define
men, not women. Its second purpose is to show how women-that is, people who value intimacy, fear separation,
dread invasion, and crave individuation-have fared under a legal system which fails to value intimacy, fails
to protect against separation, refuses to define invasion as a harm, and refuses to acknowledge
the aspirations of women for individuation and physical privacy. The second project in which feminist legal
theorists engage might be called "reconstructive jurisprudence." The last twenty years have seen a substantial amount of feminist
law reform, primarily in the areas of rape, sexual harassment, reproductive freedom, and pregnancy rights in the workplace. For
strategic reasons, these reforms have often been won by characterizing women's injuries as analogous to,
if not identical with, injuries men suffer (sexual harassment as a form of "discrimination;" rape as a crime of
"violence"), or by characterizing women's longing as analogous to, if not identical with, men's
official values (reproductive freedom-which ought to be grounded in a right to individuation-conceived instead as a "right to
privacy," which is derivative of the autonomy right). This misconceptualization may have once been a
necessary price, but it is a high price, and, as these victories accumulate, an increasingly
unnecessary one. Reconstructive feminist jurisprudence should set itself the task of
rearticulating these new rights in such a way as to reveal, rather than conceal their origin in
women's distinctive existential and material state of being. The remainder of this article offers a
schematization and criticism of the feminist jurisprudence we have generated to date under the umbrella concept described above,
in spite of patriarchy and in spite of the masculinity of legal theory. I then suggest further lines of inquiry.
There must be broader engagement outside of the political sector – gender issues
must be addressed both politically and socially
West 88 (Robin West, Professor at Georgetown University Law Center, 1988, “Jurisprudence
and Gender”)
The "separation thesis," I have argued, is drastically untrue of women. What's worth noting by way of conclusion
is that it is not entirely true of men either. First, it is not true materially. Men are connected to
another human life prior to the cutting of the umbilical cord. Furthermore, men are somewhat
connected to women during intercourse, and men have openings that can be sexually
penetrated. Nor is the separation thesis necessarily true of men existentially. As Suzanna Sherry has
shown, the existence of the entire classical republican tradition belies the claim that masculine biology mandates liberal values.76
More generally, as Dinnerstein, Chodorow, French, and Gilligan all insist, material biology does not mandate
existential value: men can connect to other human life. Men can nurture life. Men can mother.
Obviously, men can care, and love, and support, and affirm life. Just as obviously, however, most men
don't. One reason that they don't, of course, is male privilege. Another reason, though, may be the
blinders of our masculinist utopian visionary. Surely one of the most important insights of feminism has been that
biology is indeed destiny when we are unaware of the extent to which biology is narrowing our fate, but that biology is destiny only
to the extent of our ignorance. As we become increasingly aware, we become increasingly free. As we
become increasingly free, we, rather than biology, become the authors of our fate. Surely this is true both
of men and women. On the flip side, the "connection thesis" is also not entirely true of women, either
materially or existentially. Not all women become pregnant, and not all women are sexually penetrated. Women can go
through life unconnected to other human life. Women can also go through life fundamentally unconcerned with other human life.
Obviously, as the liberal feminist movement firmly established, many women can and do individuate, speak the
truth, develop integrity, pursue personal projects, embody freedom, and attain an atomistic
liberal individuality. Just as obviously, most women don't. Most women are indeed forced into motherhood
and heterosexuality. One reason for this is utopian blinders: women's lack of awareness of
existential choice in the face of what are felt to be biological imperatives. But that is surely not the main
reason. The primary reason for the stunted nature of women's lives is male power .
Perhaps the greatest obstacle to the creation of a feminist jurisprudence is that feminist jurisprudence must
simultaneously confront both political and conceptual barriers to women's
freedom . The political barrier is surely the most pressing. Feminists must first and foremost counter a
profound power imbalance, and the way to do that is through law and politics. But jurisprudence-like law-is persistently utopian and
conceptual as well as apologist and political: jurisprudence represents a constant and at least at times a sincere attempt to articulate
a guiding utopian vi- sion of human association. Feminist jurisprudence must respond to these utopian
images, correct them, improve upon them, and participate in them as utopian images, not just
as apologies for patriarchy. Feminism must envision a post-patriarchal world , for without
such a vision we have little direction. We must use that vision to construct our present goals, and we should, I believe, interpret our
present victories against the backdrop of that vision. That vision is not necessarily androgynous; surely in a utopian world the
presence of differences between people will be cause only for celebration. In a utopian world, all forms of life will be recognized,
respected and honored. A perfect legal system will protect against harms sustained by all forms of life, and will recognize life
affirming values generated by all forms of being. Feminist jurisprudence must aim to bring this about and, to
do so, it must aim to transform the images as well as the power. Masculine jurisprudence must become
humanist jurisprudence, and humanist jurisprudence must become a jurisprudence unmodified.
2nc democracy impact
Status quo emerging democracies model US judicial supremacy -- only an
abandonment of judicial supremacy in the US can end the pressures towards it
around the world.
Hiebert 4 [Janet L., Associate Professor of Political Studies, Queen's University, Canada, 2004,
82 Tex. L. Rev. 1963]
The reason for caution does not arise out of any inherent conceptual shortcomings with this
model, but from the strong influence of American constitutional ideas. Despite the innovative
approach these models take, it remains to be seen to what extent these political communities
can resist the emphasis on judicial hegemony when interpreting rights and resolving legislative
conflicts where rights claims arise. It seems remarkable that the idea of judicial hegemony
remains so influential, particularly in light of the cumulative force of challenges posed first by
Legal Realists 95 and reinforced by a diverse range of critical perspectives from Critical Legal
Studies, 96 feminist, 97 critical race, 98 and lesbian and gay 99 scholarship, all of which
have [*1987] challenged the idea that legal reasoning and methodology embody objective
principles that negate the political ideology of the judge or the influence of dominant social
norms. It is equally remarkable that this judicial hegemony would be accepted in a
contemporary environment where bills of rights are overlaid against a modern welfare state that
presumes and requires substantial state involvement. Answers to questions of whether a right
has been infringed can rarely be assessed by reference to abstract associations of the limited
state in classical liberal theory, which assumes that the state is the enemy of freedom. Rather,
these resolutions must address numerous questions: How does the activity associated with a
claim to a right relate to the normative reasons for protecting certain human activities from the
coercive powers of the modern state? How important are the values or objectives that the
impugned legislation seeks to advance? Are these values consistent with a free and democratic
society? But since these questions may give rise to a range of reasonable answers, it makes little
sense to pretend that judges have superior or exclusive insights. 100 Nevertheless, the power of
this assumption transcends American constitutional ideas. It influences the assumptions about
appropriate political behavior even within polities that have constructed an alternative model
recognizing the legitimacy of legislative judgments, and even where these are different from
judicial judgments. Only time will tell whether it is possible to establish a bill of rights that will
evolve in a manner that can resist the notion that judicial hegemony is required for responsible
judgments about rights.
Judicial hegemony entrenches elite power – it hampers democratic transitions
Hirschl 4 [Ran, Professor of Political Science & Law, University of Toronto, Towards
Juristocracy, p. 1-2]
While the benefits of constitutionalization for economic libertarians and judicial elites appear obvious, its appeal for hegemonic
sociopolitical forces and their political representatives may at first glance look questionable. However, when their policy
preferences have been, or are likely to be, increasingly challenged in majoritarian decision-making arenas, elites that
possess disproportionate access to, and influence over, the legal arena may initiate a constitutional
entrenchment of rights and judicial review in order to transfer power to supreme courts. Based on the
courts' relatively high public reputation for professionalism and political impartiality, their record of adjudication, and the justices'
ideological preferences, these elites may safely assume that their policy preferences will be less
effectively contested under the new arrangement. Judicial empowerment through constitutionalization
may provide an efficient institutional solution for influential groups who seek to preserve their
hegemony and who, given an erosion in their popular support, may find strategic drawbacks in adhering to majoritarian policymaking processes. More "demographically representative" political processes are, in other words, a catalyst, not an outcome, of
constitutionalization. The constitutionalization of rights is therefore often not a reflection of a genuinely progressive revolution in a
polity; rather, it is
evidence that the rhetoric of rights and judicial review has been appropriated by
threatened elites to bolster their own position in the polity. By keeping popular decision-making mechanisms
at the forefront of the formal democratic political process while shifting the power to formulate and promulgate certain policies to
semiautonomous professional policy-making bodies, those who possess disproportionate access to, and have a decisive influence
upon, such bodies minimize the potential threat to their hegemony. '
This turns the case and causes global war
Mansfield and Snyder 6 [Edward D., associate professor of political science at Columbia, and
Jack, professor of political science and director of the institute of war and peace studies at
Columbia, 2006, National Interest]
THE BUSH Administration has argued that promoting democracy in the Islamic world, rogue states and China will enhance
America's security, because tyranny breeds violence and democracies co-exist peacefully. But recent experience in Iraq and
elsewhere reveals that the early stages of transitions to electoral politics have often been rife with
violence. These episodes are not just a speed bump on the road to the democratic peace. Instead,
they reflect a fundamental problem with the Bush Administration's strategy of forced-pace democratization in countries that lack the
political institutions needed to manage political competition. Without a coherent state grounded in a consensus
on which citizens will exercise self-determination, unfettered electoral politics often gives rise to
nationalism and violence at home and abroad. Absent these preconditions, democracy is
deformed, and transitions toward democracy revert to autocracy or generate chaos. Pushing
countries too soon into competitive electoral politics not only risks stoking war, sectarianism and terrorism, but it
also makes the future consolidation of democracy more difficult.
2nc progressive constitutionalism
Progressive Constitutionalism sparks progressive legislations which is key to
ending societal domination, solving case.
West 94 [Robin, Prof. of Law. Georgetown, Progressive Constitutionalism, 1994]
By way of conclusion, let me briefly characterize some of the gains of reorienting progressive constitutional discourse toward
legislative rather than adjudicative action, and toward a congressional rather than a judicial audience. First, and perhaps most
important, if we were to recharacterize our progressive understanding of the constitutional
guarantees of liberty and equality as political ideals to guide legislation, rather than as legal
restraints on legislation, many of these tensions within the progressive understanding of the
Constitution would disappear. If we imagine Congress, rather than the Court, as the implicit
audience of constitutional argument, it becomes far easier to envision arguments to the effect
that the Fourteenth Amendment requires, rather than permits (as within the liberal paradigm) or
precludes (as in the conservative) progressive objectives such as affirmative action programs, child
care and support programs, greater police responsiveness to private and domestic violence,
reform of marital rape laws, and the criminalization of homophobic, racist, and sexist assaults.
Congress, after all, has the textual obligation to do something about the states’ refusal to provide
what the progressive means by “equal protection”: to protect the citizenry against the damaging
effects of rampant social and private inequality.
ALSO, Only in Congress – where the emphasis is on transformation, not
conservation – can a truly progressive politics begin
West 94 [Robin, Prof. of Law. Georgetown, Progressive Constitutionalism, 1994, p. 313-14]
Within the congressional context, and given congressional purposes, it is not unreasonable to ascribe to the idea of law—and
particularly the idea of a higher or supreme law—a quite different essential jurisprudential nature. Congress, again, does not exist to
do legal justice, to treat like cases alike, or to judge in a way that respects the similarity of present circumstances with past
precedent. To the contrary, Congress has as its central mission the alteration, the deviation, and the
transformation—not the conservation—of the past. It exists to bring our present circumstances in line with our
ambitions and aspirations of the future, not to bring our present circumstances in line with the authoritative traditions of the past.
The law relevant to such an endeavor, then, including the constitutional law, would not, presumably, be a law of binding historical
precedent in search of similarly situated present circumstances. It would be a law of ideal moral principles—those principles of
distributive justice toward which our politics aspire. The congressional Constitution no less than the judicial
Constitution would be law, but the significance of the appellation would be quite different . The
law of which the congressional Constitution would be an instance would be a law of moral principle and high
ideals, not, as is the case with the judicial Constitution, a law of precedent and past rule facilitating the provision of
legal justice. For these two reasons alone, congressional interpretation of the Constitution might produce
authoritative meanings more conducive to progressive change than those produced by the Court. And
again, the argument is not simply that the constitutional text, like any text, can have an infinite number of meanings, can therefore
have progressive as well as conservative meanings, and is therefore likely to be interpreted in a progressive manner by legislators
who happen to be more progressive than the present political composition of the Supreme Court. Rather, congressional
interpretation of the Constitution might be freed of the conservatism of judicial interpretation
because of the quite different purposes that define each branch. The purpose of adjudicating law is
conservation and preservation—respect for the traditions of the past is indeed at the heart of the work of doing legal
justice. Maintaining continuity with what has gone before is a way of making sense of our present lives, and it is that form of
integrity—that urge to maintain our collective identities through the affirmation of our similarities with our history—that constitutes
much of the work of judicial or adjudicative law." Given that the Constitution is itself a part of law, it is inevitable that
constitutional law, when understood as a part of judicial work, will take on a conservative hue:
the idea of constitutionalism in that purposive context simply underscores the ideal of legalism. Law exists to provide a mechanism
for maintaining continuity with the past, and constitutional law exists to provide a mechanism for
maintaining continuity with the most definitive and ennobling moments of that past ." But it does not
follow that either law or the constitution, when undertaken by a community of interpreters unified by a very different set of
motivating and defining purposes, will think of, perceive, or use either concept in the same way; in fact, what follows is quite the
contrary. If the conservatism of constitutional law, of the concept of constitutionalism, and of the concept of law is in part a product
of the purposes of the judicial community of its interpreters, as suggested by the reader-response work in interpretive and
hermeneutic theory, it then follows that an interpretive community defined and constituted by a different
set of purposes might develop quite different understandings.
AND, only Congress can distribute collective resources
West 94 [Robin, Prof. of Law. Georgetown, Progressive Constitutionalism, 1994, p. 41-44]
Another reason that even a minimalist version of the abolitionist interpretation may not have
prevailed is structural. As the Supreme Court has always been quick to point out, the federal
judiciary is ill equipped to remedy the structural, institutional, and social inequalities, practices,
and attitudes that result in constitutionally problematic states of affairs, such as unequal sentences for killers of white victims
and black victims, or the unequal participation of blacks on the Washington, D.C., police force. The federal judiciary is similarly ill
equipped to fashion the massive re- structuring of our market economy that would be necessary to end the millennium-long era of
unpaid domestic labor and the subsequent undervaluing of women's work in the market economy. The judiciary could, of course, do
some things: it could easily declare marital rape laws unconstitutional; it could reverse itself and affirm our right to protection by a
police force; and it could insist that the state compensate victims of violence such as Joshua DeShaney, who are now denied that
protection. But it could do little or nothing to redirect our community resources to guarantee the
funds necessary to meaningfully effectuate that promise: to actually create the programs needed
to deter domestic violence, to provide additional support for police forces assigned to high-crime neighborhoods, or to
ensure that the social services agencies charged with protecting Joshua DeShaney would become a reality for the community at
large, rather than for the rare individual who can marshal the funds and fortitude to file a lawsuit. The conservative Court and
conservative theorists are probably right to insist that the reordering of priorities and redirecting of collective resources necessary to
make these programs a reality must originate with legislative, not judicial action. They are wrong, though, to imply from that
structural limit the nonexistence of the background constitutional right. The last obstacle I want to mention to modern
implementation of interpretation of the equal protection clause is jurisprudential: it concerns the nature of the "law" discovered or
created by courts, as contrasted with the nature of "law" created by legislative process. Here, a quick contrast with the formal
equality model presently adopted by the current Supreme Court is helpful. To determine whether or not a statute violates the equal
protection clause under the formal equality model, the Court must essentially decide whether the legislature is "treating like groups
alike." Whatever may be the shortcomings of this model, and I think there are many, it has one unassailable strength: the formal
equality model of equal protection that requires rational categorization in legislation demands of
the Court what might be called adjudicative virtues. The work required of the courts under the formal equality
model in deciding whether a rule treats like cases alike converges perfectly with the essential core of the judicial task. Deciding
whether a precedent or a rule treats like cases alike is what courts do all the time, and, moreover, it is what courts should do all the
time. To do this well, to decide whether rules and decisions are rational in precisely this way, is the mark
of a good judge. The rationality and the conception of formal justice on which it depends, and
which is the central demand of the formal equality model, is itself an "adjudicative virtue": to
treat like cases alike is the ideal of good judging toward which judges aspire. It is not at all
surprising that judges gravitate toward an understanding of the equal protection clause that, in
turn, rests on an understanding of equality that, also in turn, requires of them the exercise of
precisely this familiar virtue. By contrast, the general concept of equal protection advanced by
the abolitionists (as well as modern antisubordinationists) requires the exercise not of this
adjudicative virtue but of citizen and legislative virtues. To know what the equal protection
clause requires us to protect, and what it requires us to protect against, requires a view,
articulated or not, widely accepted or not, debated and debatable or not, of the content of
liberty, of human nature, of natural rights, and, given our commitment to democracy, of human
and citizen obligation. We need to know who we are and how we should distribute our collective
resources: what we owe to whom. It ultimately demands a theory of distributive, not equal or
formal, justice. These distributive and redistributive questions may not be questions that judges
can or should answer. They are precisely the questions we need to ask of ourselves and of our representatives, however. If we
are to make sense of the equal protection clause as understood by the abolitionists, and as understood by at least many of its
framers, we need to do two things. First, we need to reacquaint ourselves with old ways of thinking about our human nature and the
natural rights that follow—we need to suspend our postmodernist doubts that this is a sensible and fruitful way to think about
political morality. Second, and to my mind of greater importance, if we are to take seriously the view of the equal
protection clause intended by its framers and advocates, we need to quit asking what that clause
requires of our courts, what it directs our judges to do or refrain from doing, and how much of
its vision is compatible with judicial review—whether it does or does not accord with our
tripartite common-sensible conception of individual rights, majority rule, and judicial role. We
need to ask instead what the clause demands of us as legislators, as citizens, as lawmakers, and
as members of a community. When we ask what we are required to do to guarantee to each of us
the equal protection of the law, rather than what judges are required to do, we may see very
different answers. The answers to that question urged by the abolitionists well over a century
ago—to which we may have blinded ourselves through our peculiarly modern intellectual focus
on equality and rights rather than equal protection and responsibility and our peculiarly historic
insistence on judicial enforcement rather than the congressional enforcement called for by the
amendment itself—may be more progressive, more astute, more just, and more caring than
either the color-blind or egalitarian charter of equality that we currently read into the clause,
and which has stalemated debate and stalled our constitutional, as well as moral, progress .
Only Congress is free of judicial constraints – courts must right narrow decision,
treat all cases alike, and have respect for precedent.
Robin West ‘94 Prof. of Law. Georgetown (Progressive Constitutionalism p. 142-143)
What this implies is simply that if we follow the suggestion of the growing number of commentators—neo-civic-republican and
otherwise—arguing for an end to the monopolization by the Court of constitutional interpretation, then we should expect to see a far
wider range of interpretations of the "liberty" which the state must respect, nurture, or "leave alone" than that represented by the
Scalia-Brennan poles of debate in Michael H. v. Gerald D. Freed of the constraints of the panoply of demands imposed by
the adjudicative
virtues—the various needs to write narrow decisions, to respect the rights of
similarly situated persons, to adhere to the patterns established by past decisions—constitutional interpreters,
whether citizens, legislators, or commentators, may see any number of potential meanings in the due process
clause to which the Court, by virtue of its identity as a court, is blind. It may be, for example, that liberty is impossible in the face of
chronic homelessness, joblessness, or hunger and that this fact should operate as a constitutional constraint on what the state may
refuse to do, as well as what the state may do. It may also be that liberty is impossible in the face of stultifying, demoralizing,
constant, private oppression and that this fact as well should constrain constitutionally what the state may neglect as well as what it
may do. The due process clause may grant us, in other words, both "affirmative" liberty rights and rights to be free of private
oppression. Nonjudicial constitutional interpreters, freed of the constraints of judicial ethics, may
find these arguments more persuasive than virtually any court would, not only as the conservative
Rehnquist Court would. The modern Court, of course, has held to the contrary: it has ruled consistently that liberty does not
embrace affirmative welfare rights and that the Fourteenth Amendment does not reach private action. Whether they were right or
wrong in doing this is not the argument of this chapter. All I want to suggest is that they have reached these conservative
interpretations in large part because they are a court. Should other interpreters enter the debate—should
Congress, for example, accept its section 5 burden of passing legislation for the purpose of enforcing the liberty
guarantee of the Fourteenth Amendment—they may see very different and much broader meanings in the
general phrases of the amendment than the Court has seen to date. Congress is not burdened by the ethical imperative to
write decisions consistent with previous decisions. It is not burdened with the need to treat like cases
alike. Nor is it charged with the task of "conserving" the societal traditions of the past. It has no reason
to interpret liberty in such a way as to maintain a "seamless web" of precedent. It is charged with the task of enforcing the mandate
of the Fourteenth Amendment, and it is generally charged with the work of distributing resources in a just manner. It is not asking
too much, then, to expect Congress to do its distributive and redistributive work in a way that promotes rather than impedes or
frustrates true individual "liberty"—understood not as societal tradition and not as judicial precedent, but as the necessary societal
conditions for a genuinely free, autonomous life.
Finally, progressive strategies will only succeed if they originate in the Congress
Robin West ‘94 Prof. of Law. Georgetown (Progressive Constitutionalism p. 6)
Thus, taken collectively, the essays in this book urge a substantive, institutional, and jurisprudential reorientation of our
understanding of the Fourteenth Amendment. Substantively, I argue that the state action doctrine, the formal understanding of the
equal protection clause, and a negative rather than positive understanding of the substantive due process clause are all untrue to the
history and language of the Fourteenth Amendment. Institutionally, I urge that a progressive understanding of the
Fourteenth Amendment is far more likely to be realized through legislative action than judicial
intervention, and that, accordingly, progressive constitutional advocates should refocus their attention
away from courts and toward the legislative arena. Finally, jurisprudentially, I argue that the Fourteenth
Amendment should be grounded in a progressive conception of a responsible democratic state charged with the task of guaranteeing
the conditions of positive freedom and guarding against the dangers of social or private enslavement. Such a conception, somewhat
paradoxically, is closer to the overriding abolitionist concerns of the framers of the amendment than are the interpretations
currently argued by both liberal commentators and the conservative Court. It is also, of the competing conceptions, the interpretation most likely to point us toward a more just society—a society worthy of the costs of the political and deliberative struggle
undoubtedly necessary to achieve it.
at: no culture shift
Only Congress culture shifts and rule shifts
Stoddard ’97 72 N.Y.U.L. Rev. 967
The arena of change may also have influenced the scope and power of the result. Imagine that the
new rules enacted by the Civil Rights Act of 1964 had, instead, emanated from a ruling of the U.S. Supreme Court.
(Such a decision, even under the Warren Court, would have seemed unlikely, but not completely implausible. The Court could
arguably have relied on a Thirteenth Amendment theory, because the Thirteenth Amendment, unlike the Fourteenth Amendment, is
not limited in scope to state action, 19 or it could have turned alternatively to the principle relied on by the Court in Shelley v.
Kraemer 20 to invalidate restrictive covenants in housing - the idea that the government must not be an accessory to private
discriminatory schemes.) Imagine further no substantial difference between the provisions of the Civil Rights Act of 1964 as enacted
and the holdings of one or several hypothetical decisions from the Supreme Court. Would American history have
evolved in the same way? Would the [*977] difference in the forum of decisionmaking have resulted in a different public
reaction to the new rules of law? I think history would have been different. The new rules of law were
widely disliked, especially by whites in the South, but the opponents of the Civil Rights Act of 1964 never rose in
rebellion, either formal or informal, against enforcement of the statute. If the new rules had come down from on high
from the Supreme Court, many Americans would have probably considered the change of law
illegitimate, high-handed, and undemocratic - another act of arrogance by the nine philosopherkings sitting on the Court. Because the change emanated from Congress, however, such sentiments of
distrust (whether grounded in principle or in simple racism) never came to affect the legitimacy of this
stunning change in American law and mores. The Civil Rights Act of 1964 came into being because a majority of the
members of the national legislature believed it represented sound policy and would improve the life of the country's citizens as a
whole; the ideas motivating the Act must therefore have validity behind them. In general, then, not only did the historical fact of the
continuing national debate on race facilitate the public's acceptance of the Civil Rights Act of 1964, even in the South, but so did the
additional (I believe crucial) fact that the change came through legislative consideration rather than
judicial or administrative fiat - lending it "culture-shifting" as well as "rule-shifting" power. 21 The
astonishing effectiveness of the Civil Rights Act of 1964 - the breathtaking sweep of its cultural tailcoats - suggests that it
should be a model for social change in other settings. It also indicates that how change is made matters almost as
much as what is, in the end, done.
Again – the court can’t culture shift
Stoddard ’97 72 N.Y.U.L. Rev. 967
Changes that occur through legislative deliberation generally entail greater public awareness
than judicial or administrative changes do. Public awareness is, indeed, a natural concomitant of
the legislative process. A legislature - any legislature - purports to be a representative collection
of public delegates engaged in the people's business; its work has inherent public significance.
Judicial and administrative proceedings, by contrast, involve private actors in private disputes.
Those disputes may or may not have implications for others, and they are often subject to the
principle of stare decisis, but they are not public by their very nature. (Administrative
rulemaking is a diff- [*981] erent animal, akin - at least in theory - to legislative activity, but it
is still typically accorded less attention than the business of legislatures.) Legislative lawmaking
is, by its nature, open, tumultuous, and prolonged. It encourages scrutiny and evaluation. Thus,
it is much more likely than other forms of lawmaking to promote public discussion and
knowledge. For that reason alone, such lawmaking possesses a special power beyond that of
mere rulemaking. Indeed, the real significance of some forms of legislative lawmaking lies in the
debate they engender rather than the formal consequences of their enactment. Between 1971
and 1986, the New York City Council had before it every year a bill that would amend the city's
human rights laws to protect lesbians and gay men from discrimination in employment,
housing, and public accommodations. The bill failed each year until 1986, principally because of
the personal opposition of the council's majority leader. (In 1986, the majority leader retired,
and the election of a new majority leader allowed the measure to emerge from committee and
then attain the approval of the entire council.) As a perennial lobbyist for the gay rights bill, and
a gay man to boot, I publicly bemoaned the bill's failure year after year. However, in hindsight, I
am not unhappy that enactment of the bill took fifteen years. Over those fifteen years, the city
council and the citizens of New York more generally had to confront continually the issue of
discrimination against lesbians and gay men. They had to hear again and again the assertions
made by my colleagues and by me that gay people exist; that gay people encounter constant
scorn, disapproval, and prejudice; and that gay people deserve protection from discrimination in
the basic necessities of life. The city council, for a full decade and one-half, became a city-wide
civic classroom for a course on sexual orientation discrimination - an intracity teach-in, if you
will. If we had our platform during the fifteen years of the bill's pendency, so did our opponents,
but in many ways the other side's comments (especially the more rancorous observations)
bolstered our advocacy, for the comments prolonged the discussion - and also helped to
demonstrate our claims of the existence of prejudice. Immediate passage of New York City's gay
rights bill as early as 1971 or 1972 would have afforded immediate political gratification to me
and my colleagues (I would have been very gratified indeed), but immediate passage would also
have deprived the city and its residents of the extended exploration of the subject of gay people
and their rights. And, I am now convinced, it is the city-wide debate of the subject, rather than
mere passage itself, that has helped to open eyes and hearts. Mere passage would have added up
to "rule-shifting" [*982] when "culture-shifting" is what this controversial and often
misunderstood issue really required. Mere passage would have given lesbians and gay men who
suffered discrimination (and who could prove their assertions) a form of redress, and it would
probably have led some especially principled employers to adopt implementing guidelines, but
enactment of the gay rights bill would have eluded the attention of many, if not most, non-gay
New Yorkers. The fifteen years of struggle, however, made the subject ultimately inescapable to
New Yorkers - and led to genuine and deep "culture-shifting." 24 From my experience on the gay
rights bill, and my experience as an activist more generally, I harbor a bias in favor of legislative
reform. Legislative reform makes real change - "culture-shifting" - more probable, since it is
much more likely than other forms of lawmaking to engage the attention of the public. "Ruleshifting" has its merits and advantages, but it is simply less potent than "culture-shifting" in
Congress is the most flexible, innovative and prepared to approach societal
problems
Dodd, prof law Florida, 01
(Lawrence Dodd. Prof. at University of Florida, 2001, “Re-Envisioning Congress: Theoretical
Perspectives on Congressional Change”) [Dan Li]
What we know at this point is that we have adjusted our governing perspectives during these
decades and that, despite the bitter partisan battles that have come with the experimentation
and shift, and to some extent because of them, our society is as prosperous and productive as
ever. We also know one other thing: that Congress, the parties, and the electorate are capable of
reassessing governing strategies, experimenting with new ones, learning innovative approaches,
and addressing societal problems. To appreciate this capacity, we must attend to the conceptual
lenses through which we examine Congress and craft multiple theoretical perspectives that can
aid us in looking beyond momentary personalities and short-term stalemate to see the dynamic,
historical processes at play. In doing so, we must bring to Congress the common-sense judgment
we bring to daily life, taking care to focus on the motives and strategic behavior of participants
in the foreground, on the shifting background contexts, and then ultimately on the critical ways
in which the ideas that participants hold about politics and society shape their strategies and
actions.
at: perm
No Net Benefit- It’s a weak congressional challenge.
Robert Justin Lipkin ‘6 Professor of Law, Widener University School of Law (28 Cardozo L. Rev.
1055)
A congressional override provides a safety net while at the same time permitting the benefits of
judicial review to continue. Two conceptions of a congressional override exist: a weak version
and a strong version. The weak version permits Congress to override a Supreme Court decision
by passing the appropriate legislation, which the Court may then strike down. The strong
version makes Congress the final arbiter. The weak version provides a cooperative inter-branch
relationship within a modified form of judicial supremacy. In essence, the weak override
requires the Court to defer to Congress whenever possible, and strike down an override only as a
last resort. There is some value to a weak congressional override. Such an override is
at [*1113] least an improvement over our current form of judicial supremacy for two reasons.
First, it makes Congress a partner - albeit a junior partner - in determining constitutional
meaning. In short, it explicitly rejects the notion that courts have an exclusive role in
constitutional interpretation. Second, this partnership may be enhanced by Congress publicly
explaining its reasons for overriding the Court's decision. Then, if the Court strikes down that
override, it in turn must explicitly reply to Congress's rationale and analysis. Accordingly, an
explicit, dynamic constitutional dialogue between Congress and the Court is formally created. A
Court acknowledging Congress' authority to weakly override its decisions might decline
reviewing a challenge to an override by publicly requesting the electorate to chasten the
legislators who enacted the override. If this fails, the Court has a choice to defer to the electorate
or to strike down the override in an appropriate case. Though this is an improvement over our
present system, in all probability it would be insufficient. The Court remains the final arbiter of
constitutional meaning. The benefit, however, would be requiring the Court to respond
analytically to serious objections from a co-equal branch of government. 172 In the end, however,
congressional overrides should be made of sterner stuff. 173
This snowballs into total court control
Mark Tushnet ‘3 (53 Univ. of Toronto L.J. 89)
Professor Roach's important examination of the extensive experience Canada has had in
operating the world's leading weak-form system of judicial review shows that we should be
cautious about endorsing weak-form judicial review as an alternative to strong-form judicial
review. The materials he presents suggest that Canada's weak-form review has become strongform judicial review, in part because of a lack of political will and in part because of structural
obstacles to the legislature's actual ability to respond to Court decisions. The fact that in-yourface statutes are enacted will continue to place on the Canadian constitutional agenda the
question of judicial restraint, as such statutes force us to consider whether weak-form systems
require that courts exercise restraint when faced with constitutional interpretations with which
the judges disagree but which they cannot fairly describe as unreasonable. In the end, then, the
invention of weak-form judicial review may not displace the long-standing controversy in
strong-form systems over judicial activism and restraint.
AND, reliance Courts destroys progressivism, which is key to solvency. – Also
impact is above
(Conservativism fails)
Robin West ‘94 Prof. of Law. Georgetown (Progressive Constitutionalism p. 281-284)
In this conclusion I want to suggest briefly that there may be reasons to suspect some deeper tensions, not just
between the progressive and conservative interpretations of the Constitution, but between the progressive
paradigm and the idea of adjudicative law within which both liberal and conservative courts operate. To the
degree that progressives acquiesce in an understanding of the Constitution and of constitutional guarantees as a body
of adjudicative law—as something that courts enforce as law against unwilling parties—they may be committed
to a definition of constitutionalism that is antithetical to the goals of progressive politics; the phrase
"progressive constitutionalism" may remain an anomaly. The idea of "adjudicative law" may be antithetical to the
progressive understanding of the Constitution for at least four reasons. First, progressives understand constitutional
law as possibilistic and open, as change rather than regularity, and as freedom rather than constraint. This understanding of constitutionalism may be right, and it may even be right as an account of law, but as an account of
adjudicative law—of what courts in fact do—it is perverse. Adjudicative law is persistently authoritarian:
demonstration of the "truth" of legal propositions (arguably unlike other truth statements) relentlessly
requires shows of positive authority. Existentialism may not be an odd foundation for a theory of politics,
legislation, or constitutionalism, but it is certainly an odd (to say the least) grounding for a theory of adjudication.
The lesson from this tension between the possibilistic Constitution envisioned by progressives and the authoritarian
structure of adjudicative law is not necessarily that the conventional account of adjudicative law as requiring
demonstrations of binding authority is wrong; rather, the important point may be that the identification of constitutional process and choices with the sphere of adjudicative rather than legislative legality—with law rather than
politics—is misguided. Second, the instrumental goal toward which the progressive Constitution is
aimed is the abolition of subordinating and damaging hierarchies. The justice to which it aspires is not
corrective but distributive. Yet the ideal of justice to which adjudicative law aspires has historically
been primarily corrective and compensatory, rather than redistributive.121 Another way to put the point is
that adjudicative law has for the most part been essentially conservative: it maintains, stabilizes, and
reifies the status quo against change. It exists to protect against change. Antisubordination is accordingly a peculiar
goal to establish for adjudicative law. It is not, however, a peculiar goal for legislation, nor is it an odd or outlandish
understanding of the import of the Fourteenth Amendment. Perhaps, again, we should conclude from this not that it
is misguided to understand adjudicative law as aimed at corrective rather than redistributive justice, but, rather, that
it is misguided to conceive of a progressive and radically redistributive directive document such as the Fourteenth
Amendment as a source of adjudicative law, rather than as a source of inspiration or guidance for legislative change.
Third, the "morality" that adjudicative law undoubtedly absorbs from time to time is almost invariably
conventional and traditional rather than aspirational or utopian. The Court may indeed read the "Law"
through the lens of morality, but the morality that comprises the lens is the morality embraced by the dominant
forces in the community,122 not an aspirational morality of unlived ideals informed by experiences of
oppression.123 Adjudicative law typically reflects a community's moral beliefs, and only rarely its aspirational
ideals. Perhaps, then, we should conclude not that the conventional understanding of the relation between
adjudicative law and conventional morality is wrong, but that the Constitution—because it is indeed open to an
aspirational interpretation—is simply not exclusively a source of adjudicative law. Fourth, the form and
processes of "adjudication" create additional tensions for the progressive paradigm, quite apart
from and no less serious than those created by the idea of adjudicative law. As anyone who has ever been
unwillingly caught in the process knows, adjudication is profoundly elitist, hierarchic, and
nonparticipatory. It is itself a form of domination that creates experiences of subordination. The protestations of
modern civic republicans notwithstanding, it is the antithesis of participatory democratic politics. The
obsessive attention given by civic republican and liberal constitutionalists alike to the "antimajoritarian difficulty"
posed by aggressive judicial review has not done anything actually to solve the difficulty; it has only served to
highlight the utter incompatibility of both liberals' and republicans' substantive commitment to egalitarian and participatory democracy with their simultaneous endorsement of nonparticipatory, antidemocratic, and intensely
hierarchical adjudicative processes for achieving it.124 There are still other distorting constraints imposed by
adjudication on the progressive paradigm. To name just a few: Adjudication presupposes bipolar conflicts;
progressivism does not. Adjudication requires at every turn in the road recitation of and support from
"authority"; progressivism is constitutively distrustful of authority. Adjudication requires a recalcitrant, guilty,
state defendant, one consequence of which is a judicially constructed "nightwatchman"-like Constitution that can act
only against pernicious state action, while progressivism understands the problems of inequality, subordination, and
bondage in our lives to stem not from state action, but from private and social action followed by state inaction—the
failure of the state to act against private oppression. Adjudication is particularistic and individualistic;
progressivism is anything but. Finally, adjudication blames, condemns, and punishes; progressivism is
fundamentally uninterested, on many levels and for complex reasons, with blame and innocence. These are surely
good reasons to fear that a progressive Constitution is not going to fare well in any adjudicative body, not just in
front of a conservative Supreme Court. The consequence of the tension between adjudication and progressivism is
that the legalization of constitutional discourse may have seriously impoverished the progressive
tradition. When we read our progressive politics through the lens of the Constitution, and then
read the Constitution through the lens of law, we burden progressivism with the constraints, limits,
doctrines, and nature of law. Progressivism, its very content, becomes identified with that which courts
might do and that which lawyers can feasibly argue. In the process, progressivism in the courts becomes weak and
diluted. The consequence of this tension is not only, however, that progressivism in the Supreme Court is
impoverished, although clearly it is. The consequence is also that progressive politics outside the Court
is robbed of whatever rhetorical and political support it might have received from a de-legalized
conception of the progressive Constitution. In a culture that routinely identifies its political aspirations with constitutionalism, it becomes extremely difficult to demand progressive change of a nature that the adjudicated Constitution
cannot support. Redistributive progressive politics, for example, may be burdened by the "shadow effect" of the
refusal, both on the Court and outside it, to understand poverty as a suspect basis of classification, or minimal
material well-being as a fundamental right. More generally, any antisubordinationist progressive
legislation is marginalized by the inability of the Court to "find" an antisubordination principle
in the Constitution. Constitutionalism defines our public morality, to some extent, and the failure of the
adjudicated Constitution to accommodate progressive ends accordingly impoverishes progressive morality. Thus,
progressive politics is impoverished by the adjudicated Constitution simply because it loses the
force, and power, of constitutional thought. The legal profession pervasively, and the larger culture somewhat, has
come to view the Constitution as the repository of public morality; as the source, genesis, and articulation of our
political obligations. If our collective social morality and our moral aspirations are embedded in our Constitution, if
the Constitution is a form of adjudicative "law," and if adjudicative law exists in a state of profound and perpetual
(and not particularly creative) tension with progressive morality and ideals, then this conclusion is inescapable:
progressive morality will never become part of our public morality, regardless of the composition of the Supreme
Court. Progressive constitutionalism may be part of the problem (as the saying goes), not part of the solution. If
progressive constitutionalists care as much about progressive politics as they care about the Constitution (a big "if"),
then the imperative is unavoidable: the circle must be broken.
at: strike down
The court will uphold the strip – they’ve done a million times
Phyllis Schafly ‘4 President, Eagle Forum (The Supremacists p. 116-123)
Congress has the duty to curb the power of the judicial supremacists. We don't trust the federal courts or
the Supreme Court to tamper with the definition of marriage by applying supremacist notions of "emerging awareness" or "evolving
paradigm." We don't trust the courts to tamper with our right to acknowledge God, whether in the Pledge of Allegiance, the Ten
Commandments, our national motto, or voluntary prayer. Therefore, Congress should remove power from all federal courts to
impose the rule of judges over our rights of self-government. Our great Constitution has within it the checks and
balances we need to
deal with the problem of judicial supremacy. This includes the ability of Congress to
limit the jurisdiction (judicial power) of all federal courts. Article I, Section 8 of the Constitution states: "The Congress shall
have power . . . to constitute tribunals inferior to the Supreme Court." Article III, Section states: "The judicial power of the United
States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and
establish." These two sections mean that all federal courts except the Supreme Court were created by Congress, which defined their
powers and prescribed-what kind of cases they can hear. Whatever Congress created, it can uncreate, abolish, limit or
regulate. Article III, Section 2 states: "The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such
exceptions, and under such regulations as the Congress shall make. This section means that Congress can make
"exceptions" to the types of cases that the Supreme Court can decide. This is the most important
way that Congress can and should bring an end to the reign of judicial supremacy. There is nothing new or
wrong about Congress telling the federal courts what cases they can and cannot hear. Limiting court jurisdiction is a tool the liberals
have used many times. In 2002, Congress passed a law (at Senator Tom Daschle's urging) to prohibit all federal courts from hearing
cases about brush clearing in South N Dakota. Surely other issues are as important as brush fires in South Dakota. The Record of
Congressional Action. A long historical record conclusively proves that Congress has the power to
regulate and limit court jurisdiction, that Congress has used this power repeatedly, and that the courts have
accepted it. In Turner v. Bank of North America (1799), Justice Chase commented: "The notion has frequently been
entertained, that the federal courts derive their judicial power immediately from the Constitution; but the political truth is, that the
disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the
power to this Court, we possess it, not otherwise: and if Congress has not given the power to us, or to any other Court, it still remains
at the legislative disposal." Even Chief Justice John Marshall, the judicial supremacists' hero, made similar assertions.
For example, in Ex parte Bollman (1807), Marshall said that "courts which are created by written law, and whose jurisdiction is
defined by written law, cannot transcend that jurisdiction." The early decisions of the Supreme Court were sprinkled with the
assumption that the power of Congress to create inferior federal courts necessarily implied, as stated in U.S. v. Hudson & Goodwin
(1812), "the power to limit jurisdiction of those Courts to particular objects." The Court stated, "All other Courts [except the Supreme
Court] created by the general Government possess no jurisdiction but what is given them by the power that creates them." The
Supreme Court held unanimously in Sheldon v. Sill (1850) that because the Constitution did not create inferior federal courts but
rather authorized Congress to create them, Congress was also empowered to define their jurisdiction and to withhold jurisdiction of
any of the enumerated cases and controversies. This case has been cited and reaffirmed numerous times. It was applied in the Voting
Rights Act of 1965, in which Congress required covered states that wished to be relieved of coverage to bring their actions in the
District Court of the District of Columbia. The Supreme Court broadly upheld Congress's constitutional power
to define the limitations of the Supreme Court "with such Exceptions, and under such Regulations as the Congress
shall make" in Ex parte McCardle (1869). Congress had enacted a provision repealing the act that authorized the appeal
McCardle had taken. Although the Court had already heard argument on the merits, it dismissed the case for want of jurisdiction.
"We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and
the power to make exceptions to the appellate jurisdiction of this court is given by express
words." McCardle grew out of the stresses of Reconstruction, but the principle there applied has been affirmed and applied in later
cases. For example, in 1948 Justice Frankfurter in National Mutual Insurance Co. v. Tidewater Transfer Co. (dissenting)
commented: "Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it
may do so even while a case is sub judice [already before the court]." In The Francis Wright (1882), the Court said: While
the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual
jurisdiction under the power is confined within such limits as Congress sees fit to prescribe. . . . What those powers shall be, and to
what extent they shall be exercised, are, and always have been, proper subjects of legislative control. . . . Not only may whole
classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may
be subjected to re-examination and review, while others are not. Numerous restrictions on the exercise of appellate
jurisdiction have been upheld. For example, Congress for a hundred years did not allow a right of appeal to the Supreme Court in
criminal cases except upon a certification of divided circuit courts. In the 1930s, liberals in Congress thought the federal courts were
too pro-business to fairly handle cases involving labor strikes. In 1932 Congress passed the Norris-LaGuardia Act removing
jurisdiction in this field from the federal courts, and the Supreme Court had no difficulty in upholding it in Lauf v. E. G. Shinner &
Co. (1938). The Supreme Court declared, "There can be no question of the power of Congress thus to define and limit the jurisdiction
of the inferior courts of the United States." Liberals followed the same procedure when they passed the Hiram Johnson Acts in order
to remove jurisdiction from the federal courts over public utility rates and state tax rates. These laws worked well and no one has
suggested they be repealed. Another celebrated example was the Emergency Price Control Act of 1942, in which Congress removed
from federal courts the jurisdiction to consider the validity of any price-control regulation. In the test case upholding this law,
Lockerty v. Phillips (1943), the Supreme Court held that Congress has the power of "withholding jurisdiction from them [the federal courts] in the exact degrees and character which to Congress may
seem proper for the public good."
Even if the strip is unconstitutional, it wouldn’t be struck down – empirically
proven
Lawrence Sager ’81 Prof of Law, NYU (95 Harv. L. Rev. 17)
To start with, a great weight of institutional precedent favors the view that Congress can
withhold from the Supreme Court some of the cases that would otherwise fall within the Court's
article III jurisdiction. In the Judiciary Act of 1789, a Congress familiar with the drafting of
article la" withheld from the Court large portions of section z jurisdiction. This was no oversight,
to be corrected in short order, but the forging of an enduring pattern. Thus, for example, the
review of state court decisions favorable to federal claims of right was withheld from the Court's
jurisdiction for 125 years, and the Court has never been empowered to review state court litigation between private parties of diverse citizenship. Congress has always understood the
exceptions clause to permit it to subtract legal issues and cases from the article III jurisdiction of
the Supreme Court. The Court itself has shared this understanding. In no opinion h. the Court
taken a contrary view." Indeed, in the pertinent opinions, the Court displays an almost unseemly
enthusiasm in discussing Congress' power to lop off diverse heads of the Court's article III
jurisdiction.
civilian oversight cp
1nc civilian oversight cp (local police)
The 50 United States state governments should expand support for “Loyal
Opposition” Policy Review Boards, served with the task of conducting civilian
oversight of police surveillance technologies. “Loyal Opposition” Policy Review
Boards should regularly release their findings and recommendations to the
general public.
Optional: include that LOPRB’s should recommend of the plan.
The counterplan establishes recommendations for best police surveillance
practices in local communities --- they’ll recommend the plan and allow policies to
be best tailored to their jurisdiction
Seybold 15 [Steven D., J.D. candidate, “Somebody's Watching Me: Civilian Oversight of DataCollection Technologies,” March, 2015, Texas Law Review, 93 Tex. L. Rev. 1029] //khirn
civilian oversight of
surveillance must be specifically designed to address the unique problems raised by the
advancement in data-collection technologies, including that the public is often unaware of how new technologies
While scholars have offered a variety of methods for improving civilian oversight generally, n191
are being used and even when informed, often discount the potential effect of such technologies because of privacy myopia.
Through a membership of invested and knowledgeable "Loyal Opposition" citizens, a more
directed focus on policy review, and an emphasis on community outreach, Loyal Opposition
Policy Review Boards (LOPRBs) can ensure that the privacy rights of individual citizens are
protected while still allowing police departments to use data-collection technologies
to improve law enforcement and public safety.
[*1054]
A.
"Loyal Opposition" Membership
First, LOPRBs would be composed
of a group of Loyal Opposition members to ensure the
community's and police department's interests are effectively balanced. "Loyal Opposition" refers to a
civilian oversight mechanism that would share a similar commitment as police departments to effective policing and ensuring public
safety but holds alternative views regarding how those goals can appropriately be achieved. n192 Particularly, the Loyal Opposition
of the LORPB would have not only a differing viewpoint on how data-collection technologies can and should be used by police
departments n193 but would also be particularly invested in ensuring that such technologies do not unnecessarily infringe on a
citizen's rights.
This is accomplished by having the board membership composed of individuals representing
public-interest or community organizations that are particularly concerned with technology and
privacy or with protecting constitutional rights. n194 Membership can also be drawn from
academics specializing in criminal justice issues n195 or from individuals particularly concerned
with privacy rights, regardless of law enforcement experience. n196 LOPRBs would thus be staffed
by highly knowledgeable experts in the field, who would, through their interaction with the police
departments, have a keen understanding of how data-collection technologies are currently used and how they may be used in the
future. Ultimately, this positions LOPRBs to effectively balance the long-term privacy costs with the
short-term policing gains of data-collection technologies.
By drawing membership from these sources, a LOPRB can act as an effective oversight mechanism by
providing a countervailing viewpoint to police departments. A fundamental problem with self-regulation is the
lack of incentive for police departments to voluntarily implement policies that [*1055] are against their interests. n197 On the other
hand, the LOPRB mechanism relies on the self-interest of the loyal opposition to counter that of
the police department, creating a system similar to the checks-and-balances approach of the
tripartite federal government. The investigative interest of the police department and the constitutional rights and
privacy interests of the LOPRB will interact against one another to create the proper balance of interests. n198 Furthermore, the
public will likely perceive the actions of LOPRBs as not being unduly influenced by the police
department because of the loyal opposition members' competing interests to the police
department. Thus, the existence of an entity championing the competing privacy interests ensures that the use of data-collection
technologies by police departments will neither stray into Orwellian totalitarianism nor into powerless policing.
B. Reviewing Policy, Not Complaints
LOPRBs would also make a significant departure from the traditional civilian oversight
paradigm by abandoning complaint review to focus purely on reviewing and
recommending police department policies for data-collection technologies. The policy
review undertaken by LOPRBs would concern all aspects of data-collection technology, from
recommending policies for the use of surveillance technologies to addressing how long collected
information should be retained by police departments. The emphasis on policy review means LOPRBs provide
proactive oversight of police departments' use of data-collection technologies. Other regulatory approaches, especially
complaint-directed civilian oversight, usually only reactively respond to the filing of a complaint . n199
Reactive responses only provide a remedy to current practices without providing sufficient
guidance on potential future issues that may arise because of advancing technologies that are
often significantly dissimilar compared to past technologies. n200 And, because citizens are often unaware of
the implementation of data-collection technologies, there is a very low likelihood that a sufficient number of complaints would arise
to even correct current practices. By
reviewing and recommending proactively, LOPRBs can establish
"best practices" for both current and new technologies , providing adequate
oversight to protect the constitutional rights and privacy interests of the community. n201
Policy review thus is a powerful tool because it allows civilian oversight to proactively address
current and future issues facing [*1056] police departments rather than only focusing reactively on
complaints against the past actions of departments and their officers.
Furthermore, LOPRBs, by focusing on policy review at the local level, can provide a more nuanced
best practice policy for the local community. Policing is primarily a local activity, n202 and the
effects of data-collection technologies will be greatest in the local community where the police
department uses such technologies. Just as different states often have diverging viewpoints on a variety of issues, each
local community may have a unique viewpoint regarding what the community considers a reasonable expectation of privacy.
LOPRBs can formulate policy recommendations that represent the local community's privacy
expectations, creating a best practices approach that provides community-sensitive protections
above the floor set by constitutional protections. While one LOPRB may recommend
relaxed policies for the use of ALPRs in a community with significant car thefts ,
n203 another LOPRB may recommend strict data retention policies in a community with
a history of discriminatory police practices . n204
Finally, having LOPRBs review data-collection-technology procedures ensures such policies will actually be addressed, compared to
being reliant on civilian complaints to bring such technology procedures to the board's attention. A
policy-centric
approach also helps bring data-collection technologies and how police departments use
those technologies into the public consciousness , as the publically available reports and
recommendations of LOPRBs would provide the public with greater information regarding how
data-collection technologies affect the everyday privacy of the average citizen. This is especially
relevant, considering that the public may often be unaware of the use of data-collection
technology by police departments.
1nc civilian oversight cp (federal level)
The United States federal government should establish a civilian oversight agency,
comprised of a board of citizens with the task of conducting oversight of federal
law enforcement and intelligence gathering. The Board should regularly release its
findings and recommendations to the general public.
Optional: include that Board should recommend of the plan.
Solves the 1ac without any political backlash
Weinbeck 11 [Michael P. Weinbeck, J.D. Candidate, William Mitchell College of Law, 2011,
“NOTE: WATCHING THE WATCHMEN: LESSONS FOR FEDERAL LAW ENFORCEMENT
FROM AMERICA'S CITIES,” 36 Wm. Mitchell L. Rev. 1306, William Mitchell Law Review]
//khirn
C. A Proposed System of Federal Civilian Oversight
A federal system of civilian oversight should exploit the best practices of the municipal oversight
models and abandon - or at least minimize - the practices that have burdened the local systems. Recalling
the discussion above, civilian oversight appears to be at its zenith when it operates to call attention to
gross misconduct, encourage political pressure for reform, and create the perception of
unbiased, direct citizen oversight. And civilian review is hampered when public disclosure is
limited, discipline for misconduct is lax, and the board members are unqualified for the work. n158
With these attributes in mind, what might a civilian oversight model look like at the federal
level ?
Ideally, the agency would be made up of a board of citizens who have been thoroughly trained in
the work of the agency. The board would be structured to allow for areas of specialization, and
the members would be given security clearances to view classified information that may be
contained in the complaints.
To prevent the political conflicts that have sometimes plagued municipal boards, n159 board members would be
selected for four-year terms , and the terms would expire in odd-numbered years. These
changes avoid the politicization of the major election cycles. Half of the members would be
congressional appointees and half would be appointed by the President.
To aid in systematic data-gathering and reporting, the agency would be an arm of one of the
government's auditing functions - possibly the Government Accounting Office. Funding for the [*1331] oversight
agency would be statutorily guaranteed.
Alternatively, a system of civilian oversight might be achieved by expanding the auspices of the Intelligence Oversight Board. Since
the board is established through an enabling executive order, legislative wrangling is avoided and an operational system could be
implemented more quickly. However, without a legislative mandate, the Intelligence Oversight Board rests on the goodwill of the
President. A board created by statute (negotiated between the White House and Congress) may have a better base
for long-term survival and effectiveness.
Given the complex and specialized nature of the complaints, it would probably be infeasible for
any civilian oversight agency to have its own investigative staff. Instead, the civilian oversight
board would serve as an auditor to investigations being carried out by the law enforcement and
intelligence agencies. All complaints under investigation would be dual-filed with the board, and the members would select
which cases would undergo a board review.
As noted above, the imposition of discipline is a key consideration. If the board finds an investigation or an
imposition of discipline inadequate, it should have the authority to require the law enforcement or intelligence agency head to
reconsider the case. If the agency head makes no changes to the disposition, he or she would be required to provide the board with
an explanation of the decision. If the board is still dissatisfied with the outcome, it would have the authority to refer the case to the
President and to the appropriate congressional committee for further action.
The board would also establish a federal system for filing citizen complaints. No matter which federal law
enforcement agency the citizen interacted with, the board would serve as a one-stop
clearinghouse for complaint filing. Complaints could be filed on the web. All individuals who are
taken into federal custody or subjected to federal investigation would be apprised of the
existence of the board and given an opportunity to file a complaint.
D. Applying Civilian Oversight to Intelligence Services
In the post-9/11 world, the U.S. government has deliberately attacked the traditional wall of separation between federal law
enforcement and intelligence-gathering activities. n160 Today, the FBI [*1332] regularly engages in intelligence-
gathering work to protect national security and has run into corollary problems with abuses of
power. n161 A former general counsel to the CIA and the National Security Agency has concluded that, absent major
changes to the congressional approach to oversight, progress on oversight reforms are
unlikely to be realized : "Nor can progress be achieved as long as the Congress misuses its
oversight role as a point of attack on executive branch primacy in foreign relations, and misuses
the oversight committees as the forum for partisan foreign policy disputes with the
Administration." n162
Consequently, it bears mentioning that, while civilian oversight has traditionally been applied strictly to
law enforcement, there is little to suggest that its use could not extend to oversight of
intelligence-gathering activities. Indeed, given the blurring of lines within the FBI between its
traditional law enforcement roles and its developing intelligence-gathering roles, it would seem
counterintuitive not to apply an oversight model holistically.
V. Conclusion
Civilian oversight has been met with many challenges in America's cities. But, with
more than 100 civilian oversight
agencies in the United States, it appears to be a solution that provides enough community
satisfaction to justify its continued existence.
In addition, oversight mechanisms that the federal government currently employs are insufficient
to stand up to the expansive authority that has been granted to America's law enforcement
agencies. Given the inconsistent results that come from each branch of the government when
trying to oversee the nation's law enforcement and domestic intelligence-gathering activities,
new approaches are needed. A system of civilian oversight will provide some measure of
satisfaction to a public deeply concerned for the stewardship of its civil liberties.
2nc civilian oversight cp
Judicial oversight fails
Seybold 15 [Steven D., J.D. candidate, “Somebody's Watching Me: Civilian Oversight of DataCollection Technologies,” March, 2015, Texas Law Review, 93 Tex. L. Rev. 1029] //khirn
[*1044] 3. Judicial Oversight. - Police
departments could be regulated by judicial oversight, ensuring that
regulating
data-collection technologies presents a unique challenge for the judiciary. The Fourth
Amendment and other constitutional and statutory provisions provide privacy rights some
protection from encroachment. n115 However, civil claims, such as § 1983 claims, n116 face significant
obstacles to protecting privacy rights from encroachment, including that litigation is "too rare to deter
misconduct" and unlikely to encourage changes to systemic police misconduct. n117 Furthermore,
judicial oversight through constitutional protections only sets a floor of the minimum-required conduct
for police officers and departments. n118 As Armacost recognizes: "Even when criminal laws are enforced
effectively, they do not describe sufficiently high norms of behavior to constrain police
discretion within professionally acceptable boundaries." n119 Judicial oversight thus only provides
a "minimum guarantee," rather than a best practices approach. n120
constitutional and statutory rights are adequately protected from certain uses of data-collection technologies. But
The judicial regulatory mechanisms can only provide that minimum guarantee if a claimant can overcome the hurdle of showing that
use of the data-collection technologies has created an actionable claim. n121 And the minimum guarantee provided by the Fourth
Amendment may weaken as data-collection technologies become more prevalent. The determination of a person's "reasonable
expectation of privacy" under the Fourth Amendment turns on whether (1) the individual had a subjective expectation of privacy,
and (2) society recognizes that expectation as reasonable. n122 As data-collection technologies are further integrated and become
more common in the public space, it is less likely that society would recognize privacy in public as reasonable. Judicial
oversight thus becomes weaker the more widespread and common mass surveillance becomes.
n123 That is, society's shifting perspective regarding what [*1045] constitutes a reasonable
expectation of privacy lowers the minimum guarantee of constitutional protections. n124
The Supreme Court's difficulty in fitting new data-collection technologies within current Fourth Amendment jurisprudence tracks
with the judiciary's general problems responding to technological changes. When the Supreme Court had the opportunity in United
States v. Jones n125 to decide whether long-term monitoring over four weeks using a GPS device violated the Fourth Amendment,
the Court punted the issue. n126 Rather than recognizing the changing technology and updating modern judicial precedent to
address new and emerging technologies, n127 the Court instead held that the GPS device's physical installation on the vehicle
constituted a "search" and a Fourth Amendment violation. n128
Jones does little to address current and future data-collection technologies that do not involve a physical intrusion of a person's
property. n129 This is unsurprising because courts often have difficulty analogizing emerging data-collection
technologies with the past technology that precedent is based upon. n130 Even as the Court has
previously recognized that such surveillance may violate the Fourth Amendment, n131 subsequent
precedent has failed to address whether the use of data-collection technologies constitutes such
surveillance. The difficulties of judicial oversight to adapt precedent to changing technologies,
coupled with the only minimum guarantee provided from constitutional protections, cuts
against utilizing judicial oversight as the primary mechanism for regulating police department
use of data-collection technology.
Civilian oversight solves better than the plan --- allows tailoring policy to local
jurisdictions
Seybold 15 [Steven D., J.D. candidate, “Somebody's Watching Me: Civilian Oversight of DataCollection Technologies,” March, 2015, Texas Law Review, 93 Tex. L. Rev. 1029] //khirn
Civilian oversight can effectively address the failings of other oversight mechanisms .
Historically, civilian oversight entails "institutions that empower individuals who are not sworn
police officers to influence how police departments formulate policies and dispose of complaints
[*1046] against police officers." n132 These oversight bodies are generally "created by ordinance or
referendum" n133 and exist at all levels of law enforcement. n134 More than 100 civilian oversight
bodies exist, and approximately 80% of large American cities have some form of civilian
oversight mechanism. n135
Civilian oversight bodies regulating one police department may differ significantly from another
civilian oversight body. Traditionally, civilian oversight emphasized reviewing complaints
against police officers, n136 but civilian oversight may also include policy review and public
outreach . n137 Civilian oversight has generally been categorized based on two characteristics: (1)
the structural independence of the civilian oversight body from the regulated police department, often either as an internal division
of, or an independent and external body from, the police department, and (2) the scope of the body's powers, ranging from purely
supervisory to investigative or auditing powers. n138 For example, the Civilian Complaint Review Board (CCRB) in New York City
was originally an internal unit of the police department that could review reports and make recommendations to the police
commissioner; n139 in contrast, the Office of the Police Monitor in Austin, Texas, is an independent city office that assesses citizen
complaints and monitors internal affairs investi-gations. n140
Data-collection technologies represent fertile ground of concern regarding police department
policies and procedures. In the past, the public's reaction to the persistent problem of police misconduct helped spur the
proliferation of civilian oversight. n141 Well-publicized incidents of [*1047] police misconduct made the issue
politically salient, creating an impetus for governmental bodies to form civilian oversight
mechanisms. n142 As police departments begin to set policies and procedures for new
technologies, there exist very real concerns that the local community will disagree with how the
police department plans to use new data-collection technologies. Civilian oversight thus
provides the public with a formal voice in police department activities, providing the
local community with a ready means to communicate regarding perceived misuses and
abuses of such technologies.
The local nature of civilian oversight also allows for a tailored regulatory mechanism. Policing is primarily a local
task , and the vast majority of law enforcement agencies are local police departments. n143 Local
oversight boards reviewing local police department policy can tailor which police misconduct
issue to review and what recommendation would best address that issue, based on the needs and desires
of the local community. n144 Thus, the closeness of civilian oversight to the immediate community allows
the regulatory mechanism to exert significant corrective power on local police
departments based on the concerns most pressing to the local community .
Finally, the fundamental attribute of civilian oversight - civilian participation in the oversight mechanism - makes civilian oversight
an attractive remedy. While each of the other three regulatory mechanisms - self-regulation; executive and legislative action; and
judicial oversight - involve civilian participation, that participation is indirect. Civilians may pressure police
departments to self-regulate, lobby legislatures to enact new laws, and advocate courts to update
legal doctrine, but ultimately they are reliant on those other parties (police departments, legislators, and
judges) to actually act. That lack of direct participation likely makes it more difficult for
communities to believe such regulatory mechanisms are legitimate oversight mechanisms.
Yes enforcement
Seybold 15 [Steven D., J.D. candidate, “Somebody's Watching Me: Civilian Oversight of DataCollection Technologies,” March, 2015, Texas Law Review, 93 Tex. L. Rev. 1029] //khirn
B. Strengths of the Civilian Oversight Regulatory Paradigm
1. Independence. - Perhaps the greatest strength of
civilian oversight is its independence from police
departments. The structural independence of civilian oversight mechanisms from police departments ensures that departments
do not unduly influence the civilian oversight mechanism and provides the necessary independence for informed judgments. n152
That independence ultimately "helps ensure the integrity" of the oversight and provides
legitimacy to the civilian oversight decisions. n153
For instance, public distrust often exists toward internal review because of the perception "that a
police-oriented perspective necessarily colors complaint review by police, resulting not only in
concealment of officers' past misdeeds but also in encouragement of further abuse of authority." n154 By providing an
independent review mechanism on police department use of data-collection technologies,
civilian oversight is not hampered by potential biases undermining legitimate review or plagued
by the perception of bias often associated with internal review mechanisms. n155
2. Transparency. - Second, civilian
oversight can improve transpar-ency in regulating police
departments. n156 Some have called for trans-parency from the perspective that "law enforcement's business, in general, is the
public's business." n157 Police departments have historically been "closed, self-protective bureaucracies." n158 This led to
many reforms designed to make police departments less isolated from the public. n159
Just the existence of an external regulatory mechanism increases transparency by forcing a closed bureaucracy to share information
with outside parties. Furthermore, civilian oversight entities can use pamphlets, public hearings, and
other methods to increase public awareness of the [*1050] oversight and of any corrective action
taken. n160 Such actions help achieve civilian oversight's goal of "enhancing public confidence
in the police generally." n161 This increased transparency and openness helps reduce policecommunity tensions and improves the perception of legitimacy in the process. n162
3. Individual Deterrence and Systemic Correction. - Finally, civilian oversight has some meaningful
deterrence on individual actors while also providing a functioning mechanism to address local
systemic issues. n163 Individual police officers are more likely to undertake regulation of their
own behavior when the officer knows that they are being watched by an oversight body .
n164 External civilian oversight can ensure greater accountability not only among rank-and-file
officers, but also among command officers, and can also address systemic issues facing dysfunctional departments. n165 Approximately two-thirds of civilian oversight entities undertake policy
review in addition to complaint review, n166 allowing civilian oversight bodies to review general
policies and advocate for systemic reform. n167 Samuel Walker, a scholar whose work focuses on police
accountability, emphasized that successful civilian oversight bodies "take a proactive view of their role and actively seek out the
underlying causes of police misconduct or problems in the complaint process." n168 If civilian oversight mechanisms
continually provide policy recommendations to police departments, those
recommendations as a whole can have a significant effect on police misconduct, while at the
same time making the police department more "accustomed to input from outsiders." n169
Civilian oversight thus can have a transformative impact on entire police departments
rather than only correcting the actions of a singular officer.
Establishes community outreach --- solves social signal better
Weinbeck 11 [Michael P. Weinbeck, J.D. Candidate, William Mitchell College of Law, 2011,
“NOTE: WATCHING THE WATCHMEN: LESSONS FOR FEDERAL LAW ENFORCEMENT
FROM AMERICA'S CITIES,” 36 Wm. Mitchell L. Rev. 1306, William Mitchell Law Review]
//khirn
C. Community Outreach and Education
Third, LOPRBs would devote the remainder of their resources to community outreach, particularly the dissemination of their policy
research. Community outreach would involve both informing the community about the purpose
and incentives of the LOPRB and teaching the community about potential future issues arising
from how technological changes impact policing in the community. Policy recommendation has
a qualitative [*1057] impact on police departments, rather than the quantitative impact of complaint review; for this
reason, policy recommendations make it more difficult for the community to have simple metrics to understand the impact of
LOPRBs. LOPRBs must establish open and continuous dialogue with the community at large so
that the community can learn of the qualitative impact of LOPRBs. That dialogue also provides
LOPRBs the opportunity to inform the community not only of the LOPRB's policy
recommendations but also to teach the public regarding the changing nature of policing and the
impact of data-collection technologies on individuals' privacy and constitutional rights.
Community outreach will also provide greater legitimacy to LOPRBs as a regulatory form. The
legitimacy of civilian oversight mechanisms is correlated to the activeness and effectiveness of
community outreach; n205 thus, the emphasis of LOPRBs on effectively using community outreach
to establish a dialogue with the community will give LOPRBs greater legitimacy. LOPRBs will
also have greater legitimacy than traditional civilian oversight because LOPRBs are specifically
designed to represent and protect the interests of the general population, rather than merely to
function as a punitive measure against police departments.
Strong community outreach can also help overcome the problem of "privacy myopia." n206 By
educating the public regarding data-collection technologies and the LOPRB's policy
recommendations for effective regulation, the community becomes more informed on the
privacy costs associated with data-collection technologies. This will allow the public to overcome
internal discounting that makes it difficult for individuals to properly value future costs
compared to apparent present gains.
at: links to politics
Avoids political backlash
Weinbeck 11 [Michael P. Weinbeck, J.D. Candidate, William Mitchell College of Law, 2011,
“NOTE: WATCHING THE WATCHMEN: LESSONS FOR FEDERAL LAW ENFORCEMENT
FROM AMERICA'S CITIES,” 36 Wm. Mitchell L. Rev. 1306, William Mitchell Law Review]
//khirn
B. The Perceived Benefits of Civilian Oversight
There are more than 100 civilian oversight agencies in the United States covering about eighty percent of the largest cities and
serving nearly one-third of the American population. n48 As Jerome Skolnick and James Fyfe observe, the underlying attraction to
civilian oversight is plain:
When citizens ask for review of police conduct by civilians, they do so because they don't trust the police to investigate themselves.
The demand for civilian review thus implies a failure of police administration that ... probably cannot be put right simply by
employing more responsive administrators... . Like the institution of the jury, which arose not because judges were incompetent to
hear and evaluate evidence and reach verdicts, but because judges were mistrusted, so too with civilian review of police misconduct.
n49
A police department's internal affairs unit, operating on its own, lacks the credibility to conduct
an independent investigation that is satisfactory to the community. n50 Minneapolis city council members,
in an attempt to assuage community members and preserve their own political futures, established the city's review authority. n51 In
theory, at least, a system of civilian oversight inserts into the police investigation process a
watchman without allegiance to the police who will ensure that the investigation is conducted
without bias. n52 This, in turn, generally supports a perception by the community that its police
department is operating with a proper respect for individual rights. n53 As a result, a greater level of
trust develops between the police and the [*1315] community that ultimately greases the cogs of
crime detection and prevention. n54
There are other benefits that municipalities enjoy when establishing a system of citizen oversight. Chief among them is the political
coverage that the city's elected officials receive when establishing the agency. n55 For example, the Minneapolis Civilian Police
Review Authority came into being in 1990 after police officers identified the wrong house in a drug raid. n56 During the course of the
botched raid, the police killed an elderly couple who lived in the house. n57 In another episode not long after, the Minneapolis Police
Department broke up a peaceful party of college-aged African Americans at a Minneapolis hotel. n58 In response to both incidents,
outraged community members engaged in vehement and highly publicized demonstrations. n59
Besides providing a measure of political coverage, citizen oversight may also operate as a
mechanism for saving cities money. n60 Wronged citizens, instead of bringing their grievances to
court, enter the civilian oversight system where they may achieve redress that ends up
costing the city nothing more than the administrative costs of the investigation . n61
at: police resistance
LOPRBs solve department backlash
Seybold 15 [Steven D., J.D. candidate, “Somebody's Watching Me: Civilian Oversight of DataCollection Technologies,” March, 2015, Texas Law Review, 93 Tex. L. Rev. 1029] //khirn
While LOPRBs would function as an effective regulatory mechanism for police department use of data-collection technologies, there
are two potential concerns with the approach: (1) police department resistance to LOPRBs and (2) the potential application of
LOPRBs to very small police departments. While these concerns at first glance appear to be significant hurdles to LOPRBs, neither
truly presents a serious issue.
First, even a highly effective LOPRB providing quality policy recommendations to a police
department would likely encounter some department resistance to the civilian oversight. This
resistance may be created because of police department views of a civilian entity "meddling" or
just the potential perception of an adversarial relationship between the [*1058] LOPRB and police department.
n207 However, the structure of LOPRBs help overcome most of this resistance traditionally leveled
against civilian oversight from police departments. The emphasis on policy review, rather than
complaint review, means that LOPRBs will not directly regulate individual police officers but
rather the department as a whole . This change in focus will likely reduce the intensity of any
police department resistance because the potential adversarial relationship will be between the
LOPRB and the police department instead of individual officers. n208 Furthermore, any resistance
can be ameliorated by public pressure on police departments to enact the LOPRB's policy
recommendations. The LOPRB's outreach will inform the local community of the use of datacollection technologies, potentially generating popular support behind LOPRB
recommendations. LOPRBs can thus indirectly enforce their recommendations through utilizing that popular support and
pressure on police departments. That indirect pressure on police departments will help reduce potential
police department resistance because policy changes brought about through public pressure will
be a reaction by the police department to the public at large, rather than directly reacting to the
adversarial LOPRB. Thus, while police department resistance likely cannot be completely overcome, LOPRBs can
ameliorate this traditional civilian oversight problem .
LOPRB solves their DA’s
Seybold 15 [Steven D., J.D. candidate, “Somebody's Watching Me: Civilian Oversight of DataCollection Technologies,” March, 2015, Texas Law Review, 93 Tex. L. Rev. 1029] //khirn
Technology has provided police departments with powerful tools to collect extensive data on
private citizens. Those tools have captured images of every license plate passing through an
intersection; n1 used facial-recognition technology to determine whether Super Bowl attendees had criminal records; n2 and
implemented multi-technology systems that "aggregate[] and analyze[] information from approximately 3,000 surveil-lance
cameras around the city ... ." n3 New technologies allow police departments to collect a range of data
on
the public space, including private citizens not under investigation, raising concerns regarding
how that data may be used in the future. n4 And as storage and database capabilities have become cheaper and more
efficient, the potential for expansive databases has become not only a science-fiction trope n5 but a reality. n6
[*1030] But despite potential, these new tools fit poorly within the current regulatory framework. Police departments
have
embraced the information age with little guidance or oversight, raising significant privacy
concerns regarding the effect of mass-data collection on the privacy rights the general public has
enjoyed for centuries. n7 At the same time, current regulatory mechanisms have not adequately
addressed how police departments should use cutting-edge surveillance technologies. n8 Such
regulatory mechanisms often are inhibited by conflicting motivations n9 or poorly adapted to
technological change. n10 Scholars have proposed a variety of solutions to address the privacy
and criminal law concerns raised by these "data-collection technologies," but these approaches
often provide inadequate flexibility to local jurisdictions to address their unique problems n11 or
focus too narrowly on correcting a particular, novel iteration of the problem. n12
[*1031] To overcome this regulatory deficit, civilian
oversight can provide effective regulatory oversight of
police departments' use of new and emerging technologies. Specifically, I argue that a specialized form
of civilian oversight, the "Loyal Opposition" Policy Review Board (LOPRB), would function as a
regulatory mechanism that not only provides proactive regulatory guidance on technology usage
by police departments but would also allow for that guidance to be specifically tailored to the
local community. n13 LOPRBs, composed of members who are informed on and invested in
technology and civil rights, would undertake policy review of police department procedures for
the use of new technologies and recommend "best practices" approaches to ensuring that
individual privacy rights and police department investigative needs are effectively balanced. n14
Such a civilian oversight mechanism would ensure that the privacy concerns of the average citizen
remain protected as new technologies are incorporated into the daily operations of
police departments.
at: won’t oversee every community
Doesn’t matter
Seybold 15 [Steven D., J.D. candidate, “Somebody's Watching Me: Civilian Oversight of DataCollection Technologies,” March, 2015, Texas Law Review, 93 Tex. L. Rev. 1029] //khirn
Second, the valid criticism can be raised that not
all jurisdictions or departments have the resources to create
a local LOPRB. A LOPRB requires not only financial resources but also a sufficient number of
invested and informed community members to draw from to form the Loyal Opposition. n209 In
smaller towns and communities where the police department may contain only a few officers, it may be particularly difficult to
justify the expense of a LOPRB, let alone draw qualified members to sit on the board. However, LOPRBs
do not have to
be created in every jurisdiction for LOPRBs to provide effective regulatory oversight
of data-collection technologies nationwide. The exclusive policy-review focus of LOPRBs
means that even in communities that do not have their own LOPRB, that community can look to
other cities or towns to find the best practices to implement in their own community .
This sharing of policy recommendations across communities is also facilitated by the
civilian outreach of LOPRBs; just as the local community can learn about data-collection
technologies and policy recommendations from their LOPRB's website or other resources,
other communities can also access those resources. And communities that are too small
to feasibly implement a LOPRB would be able to look to a variety of approaches taken by other
[*1059] cities' LOPRBs, allowing those communities to determine which approach is most appropriate
for their own community.
other offcase arguments
politics links
Their advantages prove it’s a big ruling – guarantees politicization
Smith 7 [Joseph L., University of Alabama “Presidents, Justices, and Deference to
Administrative Action”, The Journal of Law, Economics, & Organization 5/9, (23)2]
consequences of the institutional choice are
far-reaching.
The
more complex and potentially
A decision endorsing the
disputed agency action not only allows the agency decision to stand (with whatever policy consequences that entails) but also signals to the lower courts that agencies should
be given latitude to take the disputed action. Every decision upholding a disputed agency action expands, ever so slightly perhaps, the ability of agencies to implement their
agendas. Because lower courts are supposed to implement the legal doctrines articulated by the Supreme Court, the effects of this institutional choice, whether or not to defer
to the agency decision, will ripple throughout the lower courts and should affect the decisions in many disputes. This article continues a line of research begun by Linda
Cohen and Matt Spitzer in the 1990s. Cohen and Spitzer began with the insight that Supreme Court decisions evaluating agency actions do more than merely uphold or
overturn the action being litigated. These decisions also communicate legal doctrine to the lower courts, sending signals regarding the level of deference they should show to
Given the small number of administrative law cases the Supreme Court hears each
term, they assert that the signal- sending or doctrinal element of these decisions will have a
larger impact on policy than the direct effects on the litigants. Cohen and Spitzer argue that Supreme Court Justices can best
achieve their policy-related goals if they consider their ideological relationship with the
executive branch and then factor this relationship into their decisions evaluating
administrative actions. Their model generally suggests that as the median member of the Court gets ideologically closer to the president, the Court
should become more deferential to the administrative action.
agency decisions.
terrorism da links
Surveillance cameras can monitor, detect, and deter terrorism---Boston Marathon
bombing proves
Manjoo 13 [Farhad, technology columnist for the New York Times and the author of True
Enough, “We Need More Cameras, and We Need Them Now,” Slate, April 18, 2013] //khirn
On Thursday afternoon, the
FBI released photos and video of two persons of interest in the Boston
Marathon bombing. According to FBI special agent Richard DesLauriers, authorities are looking for two men,
whom he labeled Suspect No. 1 (who was wearing a dark hat) and Suspect No. 2 (who was wearing a white hat). DesLauriers also
said that Suspect No. 2 was seen planting a device just before Monday’s explosions before heading west on Boylston Street.
What’s notable about the images the FBI released is how clear they are . Though DesLauriers did
not indicate the source of the images, the Boston Globe reported earlier that authorities were focusing on video “from
surveillance cameras on the same side of Boylston Street as the explosions.” If it turns out that the
people in the FBI’s photos are the guys who did it, they shouldn’t be surprised that
surveillance cameras turned out to be their undoing. Neither should you. We should see this
potential break in the case as a sign of the virtues of video surveillance. More than that, we
should think about how cameras could help prevent crimes, not just solve them once they’ve
already happened.
Cities under the threat of terrorist attack should install networks of cameras to monitor
everything that happens at vulnerable urban installations . Yes, you don’t like to be watched.
Neither do I. But of all the measures we might consider to improve security in an age of terrorism,
installing surveillance cameras everywhere may be the best choice . They’re cheap,
less intrusive than many physical security systems, and—as will hopefully be the case with the Boston
bombing— they can be extremely effective at solving crimes .
Surveillance cameras aren’t just the bane of hardcore civil libertarians. The idea of submitting to constant monitoring feels wrong,
nearly un-American, to most of us. Cameras in the sky are the ultimate manifestation of Big Brother—a way for the government to
watch you all the time, everywhere. In addition to normalizing surveillance—turning every public place into a venue for criminal
investigation—there’s also the potential for abuse. Once a city is routinely surveilled, the government can turn every indiscretion into
a criminal matter. You used to be able to speed down the street when you were in a hurry. Now, in many places around the world, a
speed camera will record your behavior and send you a ticket in the mail. Combine cameras with facial-recognition technology and
you’ve got a recipe for governmental intrusion. Did you just roll a joint or jaywalk or spray-paint a bus stop? Do you owe taxes or
child support? Well, prepare to be investigated—if not hassled, fined, or arrested.
These aren’t trivial fears. The costs of ubiquitous surveillance are real. But these are not intractable
problems. Such abuses and slippery-slope fears could be contained by regulations that circumscribe how the government can use
footage obtained from security cameras. In general, we need to be thinking about ways to make cameras work for us, not reasons to
abolish them. When you weigh cameras against other security measures, they emerge as the least
costly and most effective choice. In the aftermath of 9/11, we’ve turned most public spaces into
fortresses—now, it’s impossible for you to get into tall buildings, airports, many museums, concerts, and even public celebrations
without being subjected to pat-downs and metal detectors. When combined with competent law enforcement,
surveillance cameras are more effective, less intrusive, less psychologically draining,
and much more pleasant than these alternatives . As several studies have found, a network of
well-monitored cameras can help investigators solve crimes quickly, and there’s even evidence
that cameras can help deter and predict criminal acts , too.
CCTV is an effective counter-terror solution
Manjoo 13 [Farhad, technology columnist for the New York Times and the author of True
Enough, “We Need More Cameras, and We Need Them Now,” Slate, April 18, 2013] //khirn
If the guys in the photos turn out to be the Boston bombers, it
won’t be the first time we’ve caught terrorists
with surveillance cameras. It happened in London, the world’s most-surveilled city, almost a decade ago. When a team of
suicide bombers attacked the city’s transportation systems on July 7, 2005, officials relied primarily on closed-circuit television
cameras to identify the attackers. Thanks
to CCTV cameras, the identities of the bombers and their
co-conspirators were determined in a few days’ time . Two weeks later, another team of
bombers attempted to attack London’s subway and bus system. Their bombs failed. The
suspects fled. But the cops had them on camera. Within a day, police had isolated images of the
attackers and released pictures to the media. Tips from the public poured in—and within a week,
the police had arrested the attackers and their accomplices. (During the course of the stakeout, the
cops also shot and killed an innocent man.)
court da links
Plan causes backlash and saps Court capital --- overturns past support for video
surveillance and has widespread popularity
Timberg 14 [Craig, February 5, “New surveillance technology can track everyone in an area for
several hours at a time,” Washington Post,
http://www.washingtonpost.com/business/technology/new-surveillance-technology-can-trackeveryone-in-an-area-for-several-hours-at-a-time/2014/02/05/82f1556e-876f-11e3-a5bd844629433ba3_story.html] //khirn
As Americans have grown increasingly comfortable with traditional surveillance cameras, a new,
far more powerful generation is being quietly deployed that can track every vehicle and person
across an area the size of a small city, for several hours at a time. Although these cameras can’t read license
plates or see faces, they provide such a wealth of data that police, businesses and even private
individuals can use them to help identify people and track their movements.
Already, the cameras have been flown above major public events such as the Ohio political rally
where Sen. John McCain (R-Ariz.) named Sarah Palin as his running mate in 2008, McNutt said. They’ve been
flown above Baltimore; Philadelphia; Compton, Calif.; and Dayton in demonstrations for police. They’ve also been used for traffic
impact studies, for security at NASCAR races and at the request of a Mexican politician, who commissioned the flights over Ciudad
Juárez.
Defense contractors are developing similar technology for the military, but its potential for civilian use is raising novel civil liberties
concerns. In Dayton, where Persistent Surveillance Systems is based, city officials balked last year when police considered paying for
200 hours of flights, in part because of privacy complaints.
“There are an infinite number of surveillance technologies that would help solve crimes . . . but
there are reasons that we don’t do those things, or shouldn’t be doing those things,” said Joel Pruce, a
University of Dayton postdoctoral fellow in human rights who opposed the plan. “You know where there’s a lot less crime? There’s a
lot less crime in China.”
The Supreme Court generally has given wide latitude to police using aerial surveillance as
long as the photography captures images visible to the naked eye.
minimization cp
Text: replace “substituted selected warrant” with “warrant equivalent”
Solves the aff and avoids the crime/terror DA
Blitz 4 [Marc Jonathan, professor at Oklahoma City University School of Law, “Video
Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World
that Tracks Image and Identity,” Texas Law Review 82.6 (May 2004): 1349-1481, lexis] //khirn
1. Warrant Substitutes and Minimization .-Even in suspicionless searches where a warrant or
probable cause requirement cannot exist without destroying the effectiveness of the search, courts can and should
demand "a constitutionally adequate substitute for a warrant."482 Even in such suspicionless searches, there
is some constitutionally-mandated requirement or set of requirements that serves the key functions of a warrant, which are to
"assur[e] citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents" and
that "the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope."483 Notably, courts do not
suggest that the need for such a "warrant equivalent" disappears in the face of a significant
security risk. On the contrary, there is an expectation that even when a warrant is impracticable, a
warrant equivalent is generally required.
In earlier cases, courts have found adequate constraints in a number of factors. Specifically, the warrantless searches that
courts have allowed are often constrained in three ways:
(1) They leave the searching official with little discretion because of the standardization in:
(a) the purposes for which the search will be administered;484
(b) how the search is conducted;485 and
(c) the population on whom the search will be administered.486
(2) They are relatively nonintrusive in that they:
(a) are brief-and often only operate as an "entry condition" rather than an ongoing monitoring system;487
(b) are often entirely avoidable;488
(c) reveal little information-often only the presence or absence of drugs or metallic objects;489 and
(d) occur against the backdrop of regulated environments-leaving freer environments relatively untouched.490
(3) The necessity of the search is clear even without a review by a neutral magistrate
because:
available to those who created the search regime made it clear that the security
problem it targets is a serious one;491 and
(a) the evidence
(b) the type of search used is well-suited to address this problem.492
Not all of these limitations are feasible in the context of public video surveillance in public streets. Unlike searches in schools or
workplaces, the effects of searches in streets or parks are not limited to regulated environments, leaving freer environments
undamaged. Nor does it seem possible to make the cameras entirely avoidable; on the contrary, doing so might defeat their purpose
by giving would-be criminals a means of eluding them.
However, governments can make public cameras less privacy-invasive by imposing some of the
constraints listed above. Perhaps the most obvious step they might take is to significantly limit
the purposes for which video surveillance may be used. One version of such a purpose limitation
is set out in the ABA Standards for Physically-Assisted Physical Surveillance, which requires that police use public
video surveillance only when doing so is "reasonably likely to achieve a legitimate law
enforcement objective."493
This standard puts some valuable limits on use of powerful new surveillance technologies. Police,
for example, could not build profiles of hundreds of law abiding citizens simply on a
hunch that such profiles might one day prove useful in solving a crime. But the ABA's limitation is still too
broad. Authorizing the use of video surveillance for any law enforcement purpose allows officials
to take video cameras, reluctantly accepted as tools for fighting violent criminals, and turn them on suspected
shoplifters or petty thieves. As Jeffrey Rosen observes, such a transformation is precisely what occurred in
Great Britain when public cameras proved to be of little help in fighting terrorism.494 While use of
video surveillance to solve relatively minor, nonviolent crimes does benefit society (for example, in
the form of less theft), it also carries a significant cost for anonymity and privacy in public life. As Michael
Adler has noted in discussing electronic computer searches, such interest in nonviolent crimes brings pervasive
police scrutiny closer to the realm of ordinary citizens' day-to-day lives.495 Camera operators charged
with stopping shoplifters or pickpockets will have reason to closely scrutinize more ordinary activity than operators charged only
with looking for evidence of violent crimes.
2nc minimization solves
Blitz 4 [Marc Jonathan, professor at Oklahoma City University School of Law, “Video
Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World
that Tracks Image and Identity,” Texas Law Review 82.6 (May 2004): 1349-1481, lexis] //khirn
Apart from limiting the purposes to which public camera systems are put, courts
can also ensure that even when
cameras are being used to counter serious crime, they are focused as narrowly as possible on
achieving that purpose. Just as the existing legal regime for wiretap demands that police avoid, wherever possible, capturing
details of innocent conversations,503 a legal regime for video surveillance might require that governments
take reasonable measures to keep innocent, law-abiding activities off of government video
screens. As Christopher Slobogin has observed, perhaps the most important measure of this kind is a strict
limitation on suspicionless tracking of individuals .504 It is here, in a determination of a
search technique's reasonableness, that the "minimization" requirement explored earlier is most
useful. Cameras should not be locked onto particular people merely because
government officials are interested in observing them , nor should officials be able to easily retrace
someone's movements on camera footage without adequate grounds for doing so. As the Ninth Circuit stressed in Taketa, video
searches are most offensive to Fourth Amendment values when they are "directed straight at" a person and are not simply searches
of a place he happens to be.505
There are a number of measures government might take to ensure that cameras are not easily used to track or spy upon individuals.
First, cameras might be trained on places or events instead of specific people. The police might
point them only at areas, like subway platforms, where there is concern about crime, or at events, like large rallies, where
there is a need for heightened security or crowd control. As Slobogin suggests, neighborhood-wide camera systems
might be used only in areas where crime is a significant problem.506 Likewise, cameras might be
activated only at specific times, such as when a terrorist alert requires heightened scrutiny in
particular parts of a city. Moreover, even where spaces seem to require monitoring, courts might
still ask whether camera systems can make public spaces sufficiently safe by monitoring people
only at certain "entry-points" to various spaces, instead of subjecting them to pervasive
observation when inside.
Second, cameras and recording devices might track suspicious activities or objects instead of
particular people, with the aid of pattern recognition software designed to identify guns or other
weapons. Even if currently available pattern-recognition software does not allow for visual identification of bombs or other
dangerous devices, one might ask whether video networks can be used in conjunction with , and activated
by, other technologies that detect the chemical or magnetic "signatures" of such devic es.507
foucault links
Status quo surveillance enforces a two binary system, which utilizes information
technology to meet ends of concretely identifying genderqueers
Conrad 9
2009, Kathryn Conrad, Department of English University of Kansas, “Surveillance, Gender, and
the Virtual Body in the Information Age”
http://www.academia.edu/233018/Surveillance_Gender_and_the_Virtual_Body_in_the_Info
rmation_Age//TK
The legal regulation of sexual practices as well as the social stigma attached to non-normative sexual identities and behaviours have
meant that those people practicing non-normative sex have had to create strategies for functioning in so-called 'normal' society—
whether those strategies include 'outing' oneself and working for legal and social change, 'passing' as normative ('straight'), or, as is
the case for many, some combination of these and other strategies. In this sense, surveillance contributes to the
reinforcement of sexual norms both by facilitating exposure for deviance, which is then often
punished, and by promoting self-regulation and concealment by those who operate outside of
the norms. Tied closely to the surveillance and regulation of sexual behaviour and identity—tied
in part because of the ways gender identity and sexual object choice are linked in the West—is
the surveillance and regulation of gender. The genderqueer body—the intersexed, the
hermaphroditic, the transgender(ed), the transexual, and even the 'effeminate male' or the
'masculine' female—is one that does not conform to the accepted biological binary of 'man' and
'woman' and/or its attendant 'masculine' and 'feminine' behaviours and physical markers. The
history of lesbian and gay activism is closely tied to that of genderqueer activism (perhaps first
and most obviously with the Stonewall Riots in New York in 1969, which saw the birth both of
contemporary gay rights activism and transgender activism), and activism to challenge the
gender system is one strategy for confronting a system into which genderqueers have not fit. But
even those who are 'out' about their genderqueer status must often 'pass' as one of two genders
in order to survive—quite literally—in a two-gendered world. According to the group Gender Education and
Advocacy, the between 1970 and 2004, 321 murders of trans people have been tallied; and 'more than one new anti-transgender
murder has been reported in the media every month since 1989' (GEA 2004a, c2004b). Although gathering reliable statistics for the
number of people killed because they were genderqueer is impossible, these statistics along with more publicised cases, such as that
of the murder of Brandon Teena in 1993, suggest that being readably genderqueer, at least in the West, still comes with significant
risk. Information technologies, as I have suggested above, have given some gender and queer
theorists people hope for liberation from the sometimes oppressive gendered discourses that
accompany biological embodiment. But surveillance, whether driven by criminology or
marketing, has, as I have suggested above, been the engine for the very informatisation of the
body in which these feminist and queer theorists have placed their hope. Further, surveillance,
particularly the surveillance tied to prediction, is not only a use to which information
technologies have been put; it is also the inspiration for many of the new developments in
information systems technology. And the patterns that those information systems create, collect,
and circulate are, in turn, intricately and inextricably bound up with surveillance technologies.
This, I would suggest, should lead gender and queer theorists away from information
technologies as a tool for the transformation of the human subject. The predictive models that are at the
centre of current surveillance technologies have been created with the goal of prediction and therefore control of the future, but they
must rely on the past to do so. The past provides the patterns from which the models take their shape. Given this, predictive models,
and the surveillance systems that feed them, are inherently conservative. By this I do not mean to suggest that they are particularly
politically conservative; indeed, many political conservatives are just as invested in the ideology of privacy that surveillance
constantly transgresses. Rather, predictive models fed by surveillance data necessarily reproduce past
patterns. They cannot take into effective consideration randomness, 'noise', mutation, parody,
or disruption unless those effects coalesce into another pattern. This inability to accommodate
randomness may simply suggest that predictive models are ineffective. But they are not
ineffective; like other surveillance techniques discussed above, they are normative. The
potentially normative effect of predictive surveillance might be clearest, and of most concern, in
the case of the transsexual body who has transitioned from one gender to another. The virtual
body created by data, in the case of a transsexual person, appears contradictory, confusing; the
data history for a trans person comprises two bodies (male and female) rather than one
genderqueer body. A hopeful reading, inspired perhaps by an optimistic (and selective) reading of Butler, would be that this
contradictory data would have the effect of destabilising the gender system. But rather than abandoning the gender system that the
transsexual / genderqueer body clearly transgresses, predictive surveillance technology, relying on past data as it does, can only
reinforce it. The material body would thus be pressured to conform or be excluded from the system. Further, Lyon's concerns about
'leaky containers' of data are heightened when one's data history does not fit into accepted norms. The Director of the National
Center for Transgender Equity in the United States, Mara Keisling, has discussed the potential impact of
surveillance technologies on transgendered persons, expressing the fear that, for instance,
radio-frequency identification (RFID) tags embedded in identification cards—an option initially
considered in the United States REAL ID Act of 2005—would allow for the private gender data
of a genderqueer person to be read from afar by those with RFID readers (Keisling 2007;
NCTEquality 2008). As suggested above, the risks attending the exposure of personal data for a
genderqueer person can be profound. Just as importantly, however, dataveillance that is tied to
predictive strategies further embeds the very norms those bodies challenge. At the level of the
everyday, such technologies put subjects' ability to control their own self-presentation—and their
own decisions to accept, challenge, or 'pass' within the system—even further out of their hands. Conclusion. The potentially
transformative effects of the body-as-information depend at least in part on the subject's ability to control that information. When
the control of a person's information is out of that person's hands, however, so too is the nature of the potential transformation.
The risks to the individual and to society with the rise of dataveillance are many, as Clarke has
enumerated, including discrimination at the level of the individual and repression at the level of
government (Clarke 1988). Where non-normative bodies are concerned, the risks can be even
greater. The rise of information technology has corresponded to a rise in predictive surveillance
for multiple uses, including marketing and criminal justice. But the information on which predictive models
rely is always part of a larger system, embedded both in time and place. To disentangle information from its material instantiation is
inevitably to do some violence both to the data and the material. And while this violence may most obviously be felt by nonnormative physical bodies, it has the potential to affect us all.
Surveillance creates a virtual body – one that’s ontology is based completely on
how information technology spies on the body’s owner, and makes assumptions
based on data gained
Conrad 9
2009, Kathryn Conrad, Department of English University of Kansas, “Surveillance, Gender, and
the Virtual Body in the Information Age”
http://www.academia.edu/233018/Surveillance_Gender_and_the_Virtual_Body_in_the_Info
rmation_Age//TK
Although with a few exceptions, gender and sexuality have largely been invisible in surveillance studies,
women and queers—that is, those whose bodies, sexual desires, practices and / or identities fall
outside of the perceived heterosexual and gender-normative mainstream—have not been
invisible to contemporary surveillance technologies. Although, similarly, surveillance per se
remains largely unremarked in gender and queer studies and theories, the disciplines have
much to offer each other. As I have suggested elsewhere, "the conjunction of queer studies and
surveillance studies has the potential to illuminate the relationship between the state and
private forces that shape space, behaviour, subjectivity, consumerism, and citizenship" (Conrad
2009). This essay explores the implications of the increasing 'informatization of the body' (van der Ploeg 2003: 58) in the context of
surveillance, the relationship of feminist / gender theory to the ontological shift effected by this informatisation, and the impact of
information surveillance and predictive models on non-normative bodies and practices, particularly genderqueer subjects.
Predictive justice, predictive marketing: the rise of the virtual body. The rise of the virtual body has its roots in the interconnection
between new information technologies and new directions in surveillance. Several scholars have noted that the rise of the
contemporary surveillance society corresponds with 'a new form of penology based on "actuarial justice", which is legal
abandonment of individualised suspicion' (Norris & Armstrong 1999: 26). The result, as William Staples puts it, is that 'we may be
witnessing a historical shift from the specific punishment of the individual deviant to the generalized surveillance of us all' (Staples
1997: 6). This shift is part of a larger attempt to manage risk—a 'shift away from strategies of social control which are reactive (only
activated when rules are violated) towards proactive strategies which try to predict dangers one wishes to prevent' (McCahill 1998:
54). More technologically advanced versions of this 'proactive' approach rely on 'dataveillance', or the surveillance of data, which is
much cheaper as well as more comprehensive than physical surveillance techniques (Clarke 1994). The proactive approach also
relies on predictive models and simulations. As David Lyon argues, behind this proactive approach is the assumption that gathering
more and more information can lead to complete knowledge and thus more effective prediction (Lyon 2001)—a claim to which I will
return later in this article. The motivation toward body surveillance as a more effective predictive tool is
based on an assumption that the information gleaned from biometric technologies is more
reliable than other kinds of data (Staples 1997). Faith is placed in the anatomical body as a
repository for correct information about the subject, bypassing the mediating filter of human
language, memory, desire, need, and so forth—that is, the complex and fallible human subject
her- or himself. But perhaps paradoxically, since our culture has had an ambivalent relationship
to the body, the data gleaned from the body has increasingly been privileged over the material
body itself. Indeed, as N. Katherine Hayles as put it, since World War II, information has 'lost its
body' (Hayles 1999). In her examination of cognitive science, philosophy, literature, information
theory, cybernetics, and other disciplines and trends, Hayles traces a shift in Western thought
toward the 'erasure of embodiment' (4) and toward seeing human consciousness as disembodied
information. The physical body, in this 'posthuman' view, is effectively a prosthetic for thought
and information, and 'embodiment in a biological substrate is seen as an accident of history
rather than an inevitability of life' (2). Following Hayles, Irma van der Ploeg suggests that 'this "informatization of the
body" may eventually affect embodiment and identity as such. We may need to consider how the translation of (aspects of) our
physical existence into digital code and "information," and the new uses of bodies this subsequently allows, amounts to a change on
the level of ontology, instead of merely that of representation' (van der Ploeg 2003: 58-9). In other words, the body itself is changing
as a result of new information technologies and the ways in which we interact with them. She continues, 'with technological and
discursive practices converging toward an ontology of "information," it is unlikely that their mediating link, embodiment— even
while acknowledging its constraining and limiting power—will remain unaffected. And because embodiment concerns our most
basic experience of the body and of being in the world, these developments carry profound normative and moral implications we
ought to attempt to uncover' (59). In short, the information gleaned from body surveillance is not merely
a 'data image', an irrelevant or circumstantial collection of information, but indeed is
constitutive of the body. There is no distinct line between the biological body and the 'virtual
body', to use another of van der Ploeg's terms; and when the virtual body is circulated, probed,
even stolen (as in the case of 'identity theft'), those actions can impact the lived experience of the
body. As van der Ploeg points out, 'the new, intensive forms of monitoring, categorizing, scrutinizing and, ultimately, controlling
and manipulating of persons through their bodies and embodied identities that become possible in this new ontology suggest that
some form of integrity of the person may be at stake' (71). It is worth pointing out that the virtual body appears not simply as the
outcome of surveillance in a criminal justice or medical context. A Google search on the terms 'virtual body', for
instance, brings up links to anatomical / physiological models, but also brings up the suggestion
to 'see results for: virtual model' and links to sites that feature 'My Virtual Model', the latter
proclaiming Brand ME I am the brand and Introducing the FACE Your model is now YOU 'My
Virtual Model' provides visitors with the opportunity to enter data about their bodies in order to
create a virtual image that enables them, for instance, to 'try on' clothing to make more informed
purchases, to create an avatar to use in interactions on social networking sites, and to predict
and visualise the changes in their biological bodies as the result of weight loss. In rather obvious
terms, the site encourages the connection of self, avatar / virtual body, and consumption. What
these sites illustrate is the extent to which the drive toward information gathering is driven as
much by consumer capitalism as by criminal justice. There is a parallel drive between the
'actuarial justice' that surveillance has enabled and the 'predictive marketing' enabled by new
information technologies, particularly those operating on the internet via 'data mining'—both
part of the larger trend of 'dataveillance'. Such sites also offer the experience of the virtual body as one of agency and
control. But as Lyon has noted, 'the combined influence of deregulation and risk management has done much to permit leaky
containers to develop'—i.e., the sites where surveillance data is contained are not 'discrete' or 'sealed' (Lyon 2001: 39, 38, 37). As
much as one might like to imagine the virtual body as a discrete entity within one's own control, the body-as-information is
dispersed widely throughout an ever-proliferating number of information systems. Further, Hayles, following Frederic Jameson,
notes that 'when bodies are constituted as information, they can not only be sold but fundamentally reconstituted in response to
market pressures' (42).
Electronic surveillance enforces a panopticon like influence on the way that
women act
Abu-Laban 14
2014, Yasmeen Abu-Laban, University of Alberta, Canada. “Gendering Surveillance Studies: The
Empirical and Normative Promise of Feminist Methodology”
http://library.queensu.ca/ojs/index.php/surveillance-andsociety/article/download/gend/gendering //TK
Additionally, feminist analyses highlight how not only externalized control, but also how
internalized forms of self-regulation may be gendered and historically specific. This is evident,
for example, in a recent study of two generations of women in England reflecting on pregnancy.
The findings suggest that the more recent cohort of women experience a much more intense
form of public surveillance of pregnancy than their own mothers when it comes to their choices
of food, drink, and fashion, as well as their body shape and judging their care given to the
unborn (Fox, Heffernan and Nicolson 2009: 553-568). Research findings also suggest more widespread and
older technologies—like television—may work in distinct ways with new reality show formats to
feed into both public and internalized forms of surveillance and control. Thus Magubane (2008) traces
the way the show Starting Over uses African-American female characters to function as “modern mammies” by guiding and
monitoring white women to utilize self-discipline and seek self-improvement in such areas as weight control, self-esteem,
relationships and reducing personal financial debt. Sears and Godderis suggest that the TV reality show A Baby Story
engages a form of “lifestyle surveillance” that allows viewers to surveil reality TV participants,
and at the same time for the formulaic televised representations to ultimately promote selfsurveillance for the (mostly female) audience members. As they put it: “bringing together
Foucauldian and feminist theory we argue that the idea of an electronic panopticon is useful in
theorizing the potential impact of reality TV shows like A Baby Story” (Sears and Godderis 2011: 183).
Taking the panopticon further, studies of the print media, which have systematically shown that female leaders are treated
differently than males (Trimble 2007), also suggest that the print media watches with gendered effects. Thus in her analysis of the
damaging treatment of former Hewlett-Packard President and CEO Carly Fiorina in The Wall Street Journal, Norander suggests,
“For Foucault, the panopticon was the ultimate tool of surveillance—subjects could be watched, but did not know from which angle
they were being observed. Women in high profile positions are often subject to such surveillance through the watchful eyes of the
press—as well as through the transparency of the ‘glass ceiling’”(Noranger 2008: 103). The work on gender and surveillance also
reflects on how state surveillance may take gendered forms. One sphere in which women are especially prone to
encountering state surveillance is in the area of social welfare. As a contemporary example,
Monahan notes how electronic benefit transfer systems for American welfare and food stamp
recipients serve to surveil poor and often racialized women. Introduced in the U.S. as part of the
1996 reform of welfare, ostensibly to prevent fraud, these systems track purchases made with
electronic cards, with consequences for individual budgeting strategies and choices (Monahan
2010: 119; see also Eubanks 2012: 82). What is equally noteworthy is that as early as World War
One, Britain’s embryonic welfare state pension programme designed for war widows involved
gendered bureaucratic surveillance (Smith 2010). In this way, the state effectively replaced the
deceased husband as both the financial and moral guardian of war widows (Smith 2010: 524).
These findings suggest the deeply embedded forms of gendered bureaucratic surveillance contained in the welfare state, a finding
echoed about the judicial branch of the state by criminologists addressing gender and crime. Such work has much to say about how
surveillance practices relate to gender and other social divisions (Barak, Leighton and Flavin 2010), how new forms of surveillance
and surveillance technologies may reinforce existing social divides along new lines (Coleman and McCahill 2011: 286), and also how
a variety of state institutions may be mobilized. On the latter, for instance Flavin draws attention to how the courts, laws and law
enforcement agencies, and social welfare/child welfare agencies, work in tandem to effectively “police” women’s reproduction in the
United States in relation to conception, abortion, pregnancy and child-rearing (Flavin 2009). The importance of powerful
institutions of state and society is further amplified in the work of Virginia Eubanks which provides a feminist take on science,
technology and society studies. Specifically, focusing on American programs developed under the Bush and Obama administrations
which target the “digital divide,” Eubanks finds these have both underestimated the resources of “poor” communities and
neighbourhoods, as well as the ways in which institutions relating to criminal justice, welfare and employment work to shape the
relationship between “poor” people and information technology. Notably, in contrast to a dichotomous “digital divide,” the
marginalized women interviewed by Eubanks highlighted variable interaction with new technologies based on social location and
complex relations of power (2012: 37-39). As such, the interviews with specific women allowed for the emergence of situated
knowledge, so central to much feminist epistemology, and highly relevant for thinking about policies advancing “digital equity.”
Moreover, interviews with the subjects of surveillance provide one major way in which the technologically driven emphasis of much
Surveillance Studies work is not only challenged, but a wider array of experiences and knowledge(s) of surveillance may arise. This is
captured in the work of McCahill and Finn (2010) who utilize interviews with UK school-age children (ages 13-16) to illustrate how
the actual experience of surveillance varies in relation to class and gender. As such they argue that “it may be useful for future
research, including our own, to situate the ‘subjective experiences,’ and ‘behavioural responses’ of the ‘surveilled’ in a wider context
by drawing upon sociological theories on ‘identity formation’ in ‘late modernity’” (McCahill and Finn 2010: 286). The gender-
specific implications of certain technologies are also a consideration in work done more
explicitly on surveillance, gender and other forms of identity. As one chilling example, the
potential ways in which new technologies may be used for harmful ends is given in the recent
work of Mason and Magnet (2012) on violence against women, and specifically domestic
violence. They suggest violence against women is being increasingly facilitated by new
technological strategies like tracking of Facebook and Twitter, installing hidden GPS monitors in
cars, and use of computer SpyWare to monitor online activities. They show therefore how the
strategies abusive partners may utilize to stalk have been amplified (Mason and Magnet 2012:
107-109). In the process, these popular technologies also transform into technologies of violence
(Mason and Magnet 2012: 107). One of the more wide-ranging theoretical considerations of gender and surveillance has
been helpfully advanced by Torin Monahan who starts with the observation that control is not the only feature of surveillance
directed at women. As Monahan (2010: 113) notes, “Studies find that at least one in ten women are watched by control room
operators for voyeuristic reasons alone.” Monahan also suggests that the gendered implications of surveillance go beyond voyeurism
because modern surveillance involves not only what he calls “context or use discrimination” (e.g. males are often in control rooms
and may use video surveillance in voyeuristic ways with particular impact on some women) but also “body discrimination”
(privileging male young white and able bodies), as well as “discrimination by abstraction” (evident in the ways that technological
systems work on abstraction and often bypass context, and thus may be read as relying on “masculine” control at a distance)
(Monahan 2010: 114-117). The idea of masculine control at a distance is one that Monahan posits as the most controversial, and it is
a point I will return to from a different angle in considering care. To sum up then, by moving beyond the indifferent (and gender
blind) tradition of Michel Foucault, and by bringing gender into the heart of discussions, the empirical findings of the fledgling
literature explicitly linking gender and surveillance draws attention to how surveillance may work in ways that are technologically
mediated as well as in ways that are not. As such, the surveillant gaze may still equally be the human eye, not just the electronic eye,
and it may be differentially experienced as recent work on surveillant subjects makes clear. Work explicitly considering gender in
Surveillance Studies suggests that forms of external as well as internal control are socially constructed and historically specific, and
take gendered forms. The budding work that takes gender explicitly into account draws attention to
state surveillance, and also suggests that technologically mediated surveillance may facilitate
voyeurism, stalking and violence with specific implications for women. These important findings
provide a base from which to envision further gendering Surveillance Studies research by
building on methodological and epistemological pluralism.
1nc/2nc alt solves
Women’s active resistance is key to effective counter-surveillance
Pain 1 Professor of Geography and Environmental Management at the University of
Northumbria at Newcastle (Rachel, Urban Studies, “Gender, Race, Age and Fear in the City” p.
903 – 4, 2001, http://usj.sagepub.com/content/38/5-6/899.full.pdf) | js
Almost every survey of fear of crime finds that women report being more fearful of crime than men. Whether in the home, the
workplace or the city, it is fear of sexual violence and harassment from men which underpins women’s higher fear (Gordon and
Riger, 1989; Valentine, 1989). Feminists have viewed women’s higher fear of crime as a manifestation
of
gender oppression and a damaging form of control of women’s lives, reproducing traditional notions about
women’s ‘place’ in society (Hanmer and Saunders, 1984; Pain, 1991; Valentine, 1989). Sexual harassment in
masculinist, heterosexual environments, whether they are public places or workplaces, has also
been implicated in contributing to fear (Gardner, 1995; Junger, 1987). There is plenty empirical evidence about the
spatial outcomes of this control, particularly the welldocumented effects of coping strategies which many women employ to avoid
harassment and violence in public spaces (Pain, 1997; Painter, 1992; Valentine, 1989). However, there are some conflicts
between theoretical development and empirical evidence around women’s fear of urban spaces.
The most recent suggestion, that men’s fear may be considerably higher than previously thought, is dealt with later (in itself this
does not challenge the fact that women experience high levels of fear of crime). Much relevant research on women’s fear has
revolved around two key paradoxes. The first and earliest is the paradox between levels of fear and violence discussed in the
introduction—when women’s high fear of crime was first discovered, it appeared far greater than their actual risks of victimisation
(Balkin, 1979; Hough and Mayhew, 1983). In crime surveys in Britain and North America, reported rates of violence against women
in the earlier sweeps were extremely low, leading to the assumption that women’s fear must be irrational. This ‘vulnerability’
perspective has since been heavily criticised for implying that women are inherently weak and passive ‘born victims’ and for ignoring
structural explanations of violence which focus upon men (Stanko, 1985). This paradox has since been shown to be misleading,
produced by the unrepresentative way that criminologists have defined and measured crime against women (Stanko, 1988). More
sensitive and intensive research continues to show that levels of violence against women are far higher (Crawford
et al., 1990; Hall, 1985; Mirrlees-Black et al., 1998) and
easily justify women’s high levels of fear of attack. A
research shows a mismatch between the
types of location in which physical and sexual violence usually occur (private space) and the
locations in which most women fear (public spaces), calling into question the idea that levels of victimisation can
explain fear alone. To resolve this spatial paradox, feminists have argued that women are
misinformed about the main location of danger, through the institutions of the family, the
education system and the media (Hanmer and Saunders, 1984; Valentine, 1989). More recent research has indicated that
second paradox has been identified and explored by geographers—most
misinformation does underlie fear in public space; most women are aware that domestic violence is more common than stranger
attacks, but this knowledge has little effect on their fear of crime unless they have personal experience of domestic violence (Pawson
and Banks, 1993; Pain, 1997). The fact that urban public spaces are relatively safe compared with the
home has provoked attempts to reduce women’s fear through changing the physical fabric of city
centres and housing estates. Earlier feminist Downloaded from usj.sagepub.com at UNIV OF MICHIGAN on July 10, 2015 904
RACHEL PAIN contributions to the literature on women’s experiences of public spaces tended to focus on negative aspects,
including poor access to public transport, long distances between residential and shopping areas, and poor design which can make
movement around the city difficult for mothers out with prams or young children as well as contributing to women’s fear of assault
(Little, 1993; Matrix, 1984; Valentine, 1990; Whitzman, 1992). While raising important issues which had previously been neglected
by planners and architects, some of this literature has been criticised for taking an unintentionally essentialist perspective on women
and urban design. Where the arguments have been extended to women’s fear of crime, the overemphasis in policy on
design solutions, as well as having little chance of success, ignores the wider social causation of
women’s fear outlined above (Koskela and Pain, 2000). Meanwhile, feminist writers such as Wilson (1991) have
emphasised that the city is frequently a place of excitement and opportunity for women, not just a place to be feared. City centre
spaces at once have varying meanings to different people (Pain and Townshend, forthcoming). Different notions of femininity are
also entwined with different constructions of the fear of crime. For example, some have suggested that the emphasis
on ‘fear’ and its negative consequences in writing about women and crime reproduces notions
about feminine weakness (Segal, 1990). It has also been suggested that responses to the newly identified problem of
women’s fear from police forces and government departments tend to entrench stereotypes
further, rather than challenge them (Stanko, 1990b). Koskela’s (1997) analysis of women’s fear of attack in
Finland emphasises that women respond to the threat of crime with ‘boldness’ as well as fear
and ‘spatial confidence’ as well as spatial avoidance. She highlights the influence on women’s fear of the
particular cultural and geographical context of Finland, which has a better record on gender equality than many other European or
North American countries. She presents the stories of those women who are not afraid but respond to the threat of violence with
boldness and defiance rather than fear and the fact that, just as some women become fearful at certain times, others lose the ‘space
of fearfulness’ through certain life experiences. In so doing, she challenges the unintentional portrayal of previous research of
fearfulness as an essentially female quality: It has been pointed out in this study that women do not passively
experience space but actively produce, define and reclaim it. Many women in Finland reclaim
space for themselves through consciously routinised use, and are able to ‘tame’ space by various
expressions of courage. They have several ways of negotiating danger, reading the signs of danger, taking possession of
space, and using power on urban space: women show ‘spatial expertise’. This demonstrates that women’s everyday spatial
practices can be practices of resistance. By their presence in urban space women produce space that is more available
not only for themselves but also for other women. Women’s spatial confidence can be interpreted as a
manifestation of power. Hence, at the level of the whole society, women’s safety in public is
arguably improved more by women going out than by them staying inside (Koskela, 1999, Epilogue p. 3;
original emphasis).
Performative gender is resistance against gendered spaces, which encourage
conformity
Bondi 5 Professor of Social Geography at the University of Edinburgh (Liz, “Gender and the
Reality of Cities: embodied identities, social relations and performativities” p. 10 – 12, 2005,
https://www.era.lib.ed.ac.uk/bitstream/handle/1842/822/lbondi002.pdf?sequence=1&isAllow
ed=y) | js
I have argued that the ideology of separate spheres has been encoded within the fabric of cities, which can therefore be “read” for
their scripts about gender. In this section I shift my focus from the processes through which meanings of gender are incorporated
into urban landscapes, to the processes through which these meanings are activated in people’s everyday lives. On this account
gender is produced performatively, that is through the routine, unselfconscious citation or enactment
of gender scripts in the ordinary practices of urban life. These processes are as much about the embedding of
gender in urban space as in the bodies of city dwellers. Thus, gender and urban space are performed in relation to each other and are
mutually constituted (Rose 1999). Performances of gender and space are not unchanging or set in stone, but are recognisable only if
they draw upon at least some elements of previous performances. Consequently meanings of gender and space
tend to congeal through their repetition, and these routine, taken-for-granted forms constitute
dominant or hegemonic versions, or regulatory fictions (Butler 1990). Dominant gender scripts are like the air
that we breathe in that they are ordinarily invisible and unnoticed except in their absence. Consequently, it is often “gender
dissidents” whose experiences most easily highlight taken-for-granted ways of doing gender, and, among this group, sexual
dissidents – especially lesbians and gays – have been the subjects of most urban research. Gill Valentine (1996), for example, has
illustrated the intensely heteronormative qualities of urban space such that a heterosexual couple holding hands or kissing in a
street, shop or restaurant is unremarkable, whereas a same-sex couple doing likewise is not. Lesbians and gays have
responded to the oppressive qualities of heteronormative space in a variety of ways, often protecting
themselves by concealing their sexual orientation and “passing” as heterosexual (Valentine 1993b), and
sometimes by working to transform or queer urban space, whether through the creation of gay
neighbourhoods (see for example Lauria and Knopp 1985; Rothenberg 1995), or the temporary colonisation of
heterosexual spaces in gay pride parades (Johnston 2002; Munt 1995). These latter interventions have the potential
to alter the gendered meanings of particular urban spaces whether temporarily or enduringly. In an essay that highlights gender
dimensions of dissident performances, David Bell, Jon Binnie, Julia Cream and Gill Valentine (1994) discuss potentially subversive
enactments of exaggerated versions of normative masculinity and femininity by lesbians and gays. These include hyper-feminine
“lipstick lesbians” wearing make-up, high heels and conventionally feminine clothes and hair-dos, and hyper-masculine “gay
skinheads” with shaven heads, work boots and conventionally macho clothing (Bell et al. 1994, 33). In so far as such
performances are recognised as parodies of dominant gender scripts, they have the potential to
unsettle assumptions that map heterosexual masculinity and femininity as complementary
opposites, and lesbian and gay identities as somehow “twisted”. However, this account is limited by its
reliance on the active choices of performers and the recognition of parodic intent by observers (Nelson 1999). The mutual
performativity of gender and space, and the power of regulatory fictions, run deeper than these intentional acts and interpretations.
Indeed hyper-feminine and hyper-masculine styles are at least as likely to reinforce as to disrupt normative discourses of gender,
and those who adopt them are as likely to be pressed into, and to 11 find themselves colluding with, entirely conventional readings of
gender and sexuality, whatever their intentions might be. Gillian Rose (1993) has explored the spatial production of discourses of
gender as well as possibilities for their transformation. She argues that dominant conceptions of space privilege binary constructions
of gender and press non-dualistic differences back into this form, as I have described in the case of lipstick lesbians and gay
skinheads. Thus, while cities are sites in which women and men routinely enact a variety of masculinities and femininities, this
diversity generally remains firmly bound within the dominant binary structure, which reduces differences to variations on a theme.
Focusing on women’s experiences of space, Rose (1993, 150) describes a paradox in which women are simultaneously
“prisoners and exiles”, trapped within oppressive, hegemonic spaces, and yet also unable to
access legitimate positions within these spaces. The power of normative readings of gender is also illustrated by
Kath Browne (2004) who describes how women
whose bodies are (mis)read as masculine are subject to
punitive treatment, especially in the gender-segregated spaces of women’s washrooms (also see
Namaste 1996). Such accounts highlight the resilience of dominant, binary gender scripts, and might
appear to suggest that these regulatory fictions are unbreachable. But Rose (1993, 1999) does not take
this pessimistic view, arguing instead that women’s paradoxical positioning needs to be grasped as an
asset that contains possibilities for the tentative articulation of alternative versions of femininity
at the edges of available discourses. Stressing the mutual constitution of space and gender, and spatialising Luce
Irigaray’s (1993) efforts to re-imagine sexual difference, Rose (1999, 258) attempts to offer “a way of thinking, dreaming and
practising other spaces that carry other ways of producing differential relations”. Put another way, transcending the binary structure
of gender entails making space for other differences: gender and space are necessarily coperformed. The performativity of gender is
a vital ingredient in the production urban difference. Notwithstanding the power of binary discourses, the enactment of gender
necessarily varies in different contexts, and every citation of the available gender scripts contains possibilities for mis-citations
through which meanings of gender might shift. These possibilities are suggested in Hille Koskela’s (2005) account of different
performances of gendered space. Focusing on women’s experiences of urban streets, she differentiates
between spaces
experienced as unpredictable and anxiety-provoking, which she calls “elastic”; the boldness and
spatial confidence enacted in the “taming” of spaces that might otherwise induce anxiety; and
the “suppression” of spontaneity, difference and challenge associated with spaces subject to
continuous surveillance by technologies, such as closed circuit television cameras. The idea of gender as
performative is sometimes criticised on the grounds that it neglects pre-discursive practices and materiality. I have sought to
articulate an alternative view that avoids opposing discourse to practice or matter, at the same time as acknowledging limits to
discourse (Butler 1993). These limits are the limits of legibility and intelligibility, and can be illustrated by considering the troubling
effects of gender-ambiguous bodies in urban space. Most of us recognise the gender of others within the
terms of the binary model so swiftly and so routinely that our curiosity is swiftly aroused if we
are unable, almost instantly, to allocate someone to one category 12 or the other. Whatever our
response to such moments – pleasure, outrage, indifference – the point I wish to make is how they illuminate the power and reach of
the binary model, which operates beneath conscious awareness, and remains unarticulated most of the time. Only when brought into
question is it noticed. At such moments, and in all the unnoticed ones, discourse, practice and materiality are one and the same.
Approaching gender as performative cuts across the distinction between individual embodiment and social relations
discussed in the preceding sections, locating
gender as simultaneously attached to bodies and
transcending them. Performative approaches to gender can therefore serve to enrich
consideration of gender identities and gender relations in urban life.