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the impact of surveillance on the exercise of political rights:
an interdisciplinary analysis 1998-2006 Amory Starr, Luis
Fernandez, Randall Amster, Lesley Wood
abstract This paper analyzes the impact of surveillance on the
exercise of foundational political rights in the United States. We
link protected assembly and association rights to social movements
theory. The analysis assesses the impacts of surveillance on the
analytical dimensions of social movements identified by scholars:
resources, political opportunities, framing, cultures of
resistance, political consciousness, and social movement
organizations. We draw on interviews with 71 formal and informal
“social justice” organizations experiencing different levels of
surveillance from 1998-2006 in 4 regions of the U.S. Our findings
suggest important implications for social movements scholars and
for future litigation of surveillance-related issues.
key words social movements, surveillance, repression, assembly,
First Amendment
introduction Our central research question in this project is
how social movement activity has been impacted by surveillance in
what we refer to as the post-Seattle era.2 We do not, as do most
social movements scholars, take state repression for granted.
Instead we begin our analysis of the impact of surveillance from
the perspective of the First Amendment. The preponderance of legal
discourse about the First Amendment focuses on the protection of
individual speech acts. These acts are often viewed as isolated,
discrete events. Each has an individual speaker, a space, a speech.
But as social movements scholars, we might ask how did the speaker
get there? Were they alone? What were their fears and risks? How
did they have the courage to be there? How did they learn about
what they spoke about? How much time did they spend in meetings in
advance of that speech act? Was the tactical plan for the event at
which they spoke developed democratically? Social movements
scholars recognize that most political speech is not isolated, but
exists in an institutional and cultural context which supports
it.
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A less litigated aspect of the First Amendment is assembly.
Since Seattle, public events like marches and rallies have been
subject to increasingly rigid constraints. Civil litigation has
focused on protecting access to public space with “time, place, and
manner” reasonable to groups organizing the expression of dissent.
This has generally not gone well, with protests confined to
“protest pits,” surrounded with riot cops, or re-located far from
(protected) access “sight and sound” of targets. As with the case
of litigation on speech, these assembly issues have been litigated
as isolated, discrete events. Questions from a social movements
perspective would include: Are assemblies about different issues
treated differentially in their access to public space? How does
the restriction of opportunities for dissenting assembly impact the
quantity and quality of dissent expressed, and by whom? What kind
of resources are required to access and use public space for
dissenting assemblies? What are the physical and social conditions
of organizing people into that space -– who is included and how are
they notified? What are the network dynamics of a given assembly?
What form does decision making about the format of the assembly
take? Who is excluded? Who controls the diversity of individual and
group expression? The unit of analysis of such inquiries is a
Social Movement Organization, or even a coalition, or, in some
cases the wider community of individuals and groups which receives
invitations, or doesn’t find out, or is excluded.
Extending these queries and our principal argument further, we
have likewise explored the implications for rights of
“association.” From a legal perspective, the right of political
association sits somewhere on the cusp between First Amendment
rights to freedom of speech and assembly, the Fourth Amendment
right to be free from unreasonable search and seizure, and the
Fourteenth Amendment’s implicit right to privacy. While not
explicitly enumerated in the Constitution, this broad right is
recognized as fundamental to the workings of a healthy democracy:
“There can no longer be any doubt that freedom to associate with
others for the common advancement of political beliefs and ideas is
. . . protected by the First and Fourteenth Amendments.” (Kusper v.
Pontikes, 414 U.S. 51, 56 (1973)). Still, despite this foundational
quality, legal scholars and social movement theorists alike have
not analyzed the right of association in its full measure. The
interdisciplinary version of our research agenda thus reads: How
has the exercise of the constitutionally-protected rights to
dissenting assembly and association been impacted by government
surveillance programs in the post-Seattle Era? In this study we
attempt to answer this central question by investigating tangible
impacts of surveillance schemes on the basic rights of individuals
and groups to organize, associate, and assemble for political
purposes.
As a basic proposition, it may be said the right of association
derives from enumerated rights of speech, assembly, and petition,
while simultaneously working to preserve those same rights. In this
sense, associational rights are somewhat unique in American
jurisprudence, yet are no less vital for this uniqueness, as the
Supreme Court has opined: “[S]tate action which may have the effect
of curtailing the freedom to associate is subject to the closest
scrutiny.” (NAACP v. Alabama, 357 U.S. 449, 461 (1958)). Indeed, as
the Court subsequently affirmed, “it is now beyond dispute that
freedom of association for the purpose of advancing beliefs and
ideas and airing grievances is protected” (Bates v. City of Little
Rock, 361 U.S. 516, 523 (1960)). Moreover, the Court has repeatedly
“emphasized that such a right is necessary to
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promote free expression,” and has acted to protect “collective
action [that] is necessary for effective advocacy” (Kaminsky, p.
2281). In the final analysis, despite its derivative nature, it is
clear that “freedom of association is so essential to the First
Amendment that in its absence, the First Amendment would lose much
of the protective force that it was intended to have” (Kaminsky, p.
2282). Thus, the freedom of association is properly seen as a
foundational touchstone for a democratic society.
Still, there remains significant confusion as to whether rights
of association and assembly are individual rights or group rights.
From a legal perspective, the rights afforded by the Constitution
are generally seen as rights obtaining to individuals; thus even
rights of assembly and equal protection are viewed as applicable to
groups but are held by the individuals in a given group. This
implies that the rights of the group qua group are rarely
recognized as such, although association may stand as an exception:
“[T]he right to associate only serves an instrumental role. That
is, it can only be invoked when individuals exercise their First
Amendment rights through collective action.” (Kaminsky, p. 2283,
citing Roberts v. United States Jaycees, 468 U.S. 609 (1984)).
While not dispositive of the legal perspective, this does suggest
that application of the right of association is group-centric,
which certainly makes sense when one considers even a basic
dictionary understanding of what it means to “associate.”
From a social movements perspective it is painfully obvious that
assemblies simply do not exist without social movements and social
movement organizations. Even spontaneous insurrections depend, if
not on formal organization, on cultures of resistance, the
development of a political “frame,” and on social networks as an
organizational resource. In the United States today, there appears
to be a dearth of overt insurrection. Almost all public dissent
takes place within the structure of state permits, and requires
considerable organizational resources. It appears to us that the
sociological perspective often fails to fully account for the legal
realities (including the primacy of individualism in the law) that
frequently operate to both enable and constrain social movements.
What we are interested in with this work is to bring a legal
sensibility about rights of association and assembly more
straightforwardly into the social movements literature, and also to
suggest the utility of a social movement perspective on potential
litigation over issues of speech, assembly, and association.
In this regard, a number of legal cases have connected the right
of association with the right to be free from unwarranted
government surveillance. In NAACP v. Alabama, 357 U.S. 449, 462
(1958), the Supreme Court held that compelled disclosure of an
advocacy group’s membership list would be an impermissible
restraint on freedom of association, observing that the
“[I]nviolability of privacy in group association may in many
circumstances be indispensable to preservation of freedom of
association, particularly where a group espouses dissident
beliefs.” The Court recognized that the chilling effect of
surveillance on associational freedom “may induce members to
withdraw from the Association and dissuade others from joining it
because of fear of exposure of their beliefs,” (357 U.S. at 463), a
point echoed by the courts in subsequent decisions such as Bates v.
City of Little Rock, 361 U.S. 516 (1960) (tapping a political
organization’s phone would provide its membership list to
authorities, which is forbidden); Dombrowski v. Pfister, 380 U.S.
479 (1965) (organizations had been harmed irreparably when
subjected to repeated announcements of their subversiveness, which
scared off potential members and contributors); and Zweibon v.
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Mitchell, 516 F.2d 594 (D.C. Cir. 1975) (surveillance may cause
members to leave an organization, thereby chilling that
organization’s First Amendment rights and causing loss of
membership). As one commentator likewise notes, the existence of
“broad investigative powers can have a very disturbing inhibiting
effect on the exercise of the freedoms of speech and association”
(Christie, p. 876), concluding that “surveillance of civilians by
any government agency at political meetings should be prohibited in
all but the most narrowly defined set of circumstances” (p.
888).
While the legal cases regarding surveillance have been brought
on behalf of individuals or organizations, social science research
has persistently emphasized the impact on organizations and
movements. For more than thirty years, Gary Marx has been studying
the impact of covert police operations on social movements. [Marx
1970, 1974, 1979, 1988] A number of case studies of social
movements and repression show the extent of surveillance used
against US social movements. [Churchill and Vander Wall 1990, 2002,
Schultz and Schultz 1989, 2001, Davenport 2005, 2006]
One of the most significant scholarly studies on surveillance,
which has particular relevance to our project, is David
Cunningham’s 2004 study of FBI counterintelligence activities
analyzes 12,000 of the more than 50,000 pages of COINTELPRO memos
made public in 1977. Counterintelligence programs designed to
“expose, disrupt, misdirect, discredit, or otherwise neutralize”
[6] various political targets were official FBI policy during what
is known as the COINTELPRO era, from 1956-1971. However, the
“normal” intelligence activities of the agency, before, during and
after the official programs, included much of the same activity,
and very similar effects on targets. [185] Intelligence operations
can serve two goals, investigation of federal crimes and (the more
controversial) precautionary monitoring through information
gathering about organizations. Counterintelligence operations may
take a preventative goal, “actively restrict a target’s ability to
carry out planned actions” or may take the form of provocation for
the purpose of entrapment of targets in criminal acts. [6] Some of
the “normal intelligence” activities undertaken by the FBI outside
of official COINTELPRO which nevertheless have a preventative
counterintelligence function are: harassment by surveillance and/or
purportedly criminal investigations [203, 210, 213], pressured
recruitment of informants [206], infiltration [207-9], breakins
[202, 214], and labeling or databasing which harms the group’s
reputation impacting its ability to communicate with the media,
draw new members, and raise funds [213], “exacerbat[ing] a climate
in which seemingly all mainstream institutions opposed the New Left
in some way.” [180] In addition, infiltrators acting as agents
provocateurs is, inexplicably, part of normal intelligence
operations. Two things about the FBI are perplexing to observers.
The first is the shocking latitude in selecting targets. At the
time of the Bureau’s 1909 founding, it was mandated only to
investigate antitrust and interstate commerce laws (including
prostitution), “placing the investigation of political beliefs and
affiliations beyond their purview” [16] but within the next 10
years, the Bureau became involved in raids of draft-dodgers and
deportation of supposed anarchists [17]. Moving with political
winds, the Bureau was involved in repression of unions, communists,
spies, saboteurs, and propagandists. “Hoover’s interpretations of
the [1939 Executive] orders as indicating that the FBI should
investigate even propaganda ‘opposed to the American way of life’
and individuals stirring up ‘class hatreds’ made virtually every
political
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group susceptible to FBI surveillance.” [24] During the 1940s,
memos on 28 investigations show “in no case is it apparent that the
targets were engaging in (or even suspected of) actual criminal
activity...clearly illustrate the Bureau’s central concern with
policing expression of political radicalism. Such a mission had no
direct law enforcement function.” [192] During the 1980s alone, the
Bureau “opened 19,500 terrorist investigations...close to
half...predicated on no allegation of criminal activity or direct
membership in terrorist organizations.” [216] Criteria for engaging
in monitoring have changed over time, shifting with waves of
political hysteria and civil liberties scrutiny. The 1940 Smith Act
illegalized “advocating the overthrow of the government by force or
organizing or belonging to a group that had such a goal”, but the
Supreme Court eventually required that conviction required evidence
of “ ‘an actual plan for a violent revolution’ ”, rather than just
“revolutionary beliefs”. [26] Such a “criminal standard” [200]
would obviate all but the investigatory operations of the FBI and
the use of standard “probable cause” requirements or “reasonable
indication of violence” [202] would certainly outlaw all
counterintelligence operations. Instead, the Bureau seems to have
been allowed to operate “based on a theory that legal dissent is
merely a front for deeply rooted subversive goals” [215, 225]. The
Bureau has rarely been required to demonstrate that it is abiding
by these requirements of criminal code. “After more than three
decades of investigation had procured not a single prosecution of
an SWP member for violating federal laws, Bureau officials in the
post-Hoover era still felt justified in monitoring the
organization.” [202] There have been few lawsuits against the
Bureau and although the SWP won paltry damages, there was no
general injunctive relief. Congress has repeatedly investigated the
FBI but has never asserted a level of power and oversight which
would ensure the application of criminal standards or respect for
the First Amendment. The high point of FBI regulation was the 1976
Attorney General’s Levi Guidelines, which “established a standard
of suspected criminal conduct, meaning activity (rather than merely
ideas or writings)” and limited investigative techniques, excepting
cases with ties to “foreign powers” (governed by the 1978 Foreign
Intelligence Surveillance Act). [196] The Levi Guidelines were
weakened by Attorney General Smith’s 1992 Guidelines, but the
criminal standard was maintained. [198] Since 9/11 in 2001,
Congress has undermined post-COINTELPRO regulations, in order to
facilitate “preventative” FBI operations. [219] Agents may now
“override any existing legal guidelines” regarding surveillance,
and to “infiltrate suspicious groups without first establishing
that the targeted organizations are tied to illegal or terrorist
acts.” [220] Of course all this hinges on the legal definition of
‘terrorist’. Prior to the 1980s, this label had to pass the
criminal standard as a “threat to domestic security”. [227] The
1996 Anti-Terrorism Act re-defined it as “the use of force or
violence in violation of the criminal laws of the US or of any
State...that appears to be intended to achieve political or social
ends.” [227] In addition, consistent with the FBI’s logic regarding
legal political activities, the ‘terrorist’ label can be applied to
“seemingly peaceful, law-abiding groups” if agents argue that they
“are somehow connected to (or ‘fronts’ for) established
foreign-based threats.” [226]
One of Cunningham’s unique contributions to our understanding of
the FBI is to emphasize the role of administrative aspects of FBI
operations. The focus of post-9/11 intelligence shifts has been on
massively increasing the amount of data being
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9.17.07 . 6
collected (by allocation of more agents to the job, loosening
restrictions on their means of collecting intelligence,
and...taking all suspicious activity seriously”), but these shifts
have not been accompanied by an increase in the quality of the
analysis (widely recognized as the real intelligence “failure”
regarding 9/11). [221]
All of this has taken on new relevance in light of recent
revelations about widespread domestic surveillance of political
groups since 9/11. The touchstone upon which the “pervasive
surveillance” and terrorist-phobic society rests is that
surveillance systems reduce victimization. And yet, mainstream
peace groups such as Food Not Bombs (see ACLU-Colorado) and the
American Friends Service Committee (a branch of the Quakers) have
found themselves under surveillance (see AFSC.org; Taylor). As a
general matter, it appears that garden variety peace organizations
across the country have been infiltrated, documented, photographed,
and/or harassed (see, e.g., Barber & Shukovsky), leading to
numerous pending lawsuits. The difficulty with much of the
litigation to date is most intensively problematized in Laird v.
Tatum 408 U.S. 1 (1972). In that case, the plaintiff objected to
the chilling effect on First Amendment rights by the mere existence
of a government surveillance program, but did not allege any
specific harm to himself as a result of the program except that he
“could conceivably” become subject to surveillance and therefore
have his rights potentially chilled.
Our study looks at this process from the other side, seeking to
assess the impacts of surveillance activities undertaken by local
as well as federal agencies, on the exercise of constitutionally
protected rights to assembly and association. Previous literature
has shown that knowledge of, or fear of, surveillance and
infiltration also forces movements to direct their energies toward
defensive maintenance and away from the pursuit of broader goals
[Boykoff 2006, 145; Cunningham 2004; Davenport 2005; Marx 1970,
1974, 1979, 1988]. This may mean that an organization may spend
more time theorizing about police behavior rather than pursuing
movement goals; shifts its tactics; changes the frequency, location
and size of meetings; or censors topics of discussion, and forms
and modes of communication in order to improve its defense
[Davenport 2006; Flam 1998]. According to Howe and Coser [cited in
Goldstein 2001: 371], after it became common knowledge that the
Communist Party was “crawling with informers” in the 1950s, only
the most hardened members continued to participate actively in an
organization that implemented “tough policies . . . as a means of
protecting” itself.
Movements also need to maintain credible relationships with a
variety of external organizations. Police may convey their belief
that a group is dangerous in a variety of ways, from the heaviness
of the police presence at a group’s demonstration [Noakes, Klocke
and Gillham 2005] to the leaking of information to the press [Marx
1970, 1974, 1979, 1988 ; U.S. Congress 1976, 35; Theoharis 1978,
164; Churchill and Vander Wall 2002, 54, 392]. The defensive
isolation that movements often retreat to when they are subject to
surveillance and infiltration makes it more difficult for them to
maintain sources of funding or access to shared community
resources, and to share sensitive or controversial information with
the press [Marx 1974; Davenport 2006; US Congress 1976, 183]. These
police actions often make other groups and individuals hesitant to
associate with that organization. [Davenport 2006; Klatch 2002;
Marx 1974, Schultz and Schultz 2001:169]
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Relations with government organizations are also likely to be
impaired. [Boykoff 2006: 179; Marx 1989]. From the perspective of
the social movement organization, being the target of covert forms
of repression may increase its distrust of the government. Mutual
police and protester distrust may limit the possibility of
police-protester negotiations before demonstrations, thus putting
social movement groups at risk for being labeled “bad” protesters
by the police and, thus, subject to stricter controls during
demonstrations [Noakes, Klocke, and Gillham 2005; della Porta and
Reiter 1998].
Several studies have suggested that covert forms of repression
can result in challengers substituting violent behavior for
non-violent activity [Lichbach 1987, White 1989]. As surveillance
increases the cost of action to social movement actors, it can
contribute to the decline of organizations and movements. Movement
decline is associated with exhaustion, and a frequent polarization
and increasing distrust between militants and moderates. In
movement decline, moderates who are most likely to compromise with
authorities are more likely to defect from an organization, and
militants who seek continued confrontation are more likely to
persist. [Tarrow 1998, 147-8]
Repression including surveillance may also turn dissidents
underground (away from more public, restricted spaces toward more
private “free” spaces), or alternatively away from overt collective
forms of resistance toward more covert, individualistic forms of
resistance. [Davenport 2006; Johnston 2005] If the militants
continue to be targeted by authorities, a dangerous situation may
emerge. As della Porta notes, the combination of partial
demobilization, factionalization, and selective repression can
produce terrorism [della Porta 1995]. For example, in Germany in
the 1970s, the state divided militant and moderate protesters by
offering the moderates concessions. These attracted the moderates
in the movement to legitimate action, but frustrated the radicals
who sought greater change. The radicals then struck back with more
extreme violence. The state also escalated, and ultimately the
militants were suppressed or driven underground. [Goldstone
paraphrasing Sabine Katsted-Henke, 1997, 11-12]
methods We are interested in every type of overt and covert
surveillance. This includes: direct observation and visits by
officers, such as writing down license plate numbers, and also
raids, questioning, and burglary; electronic surveillance such as
phone, covert audio recording, email, web, computer, video and
photo; undercovers, informants, infiltrators, and agents
provocateurs; and databasing. We are interested in the impacts of
surveillance on groups (formal and informal), communities,
movements, and individual activists (specifically in the sense of
how impacts on individuals affect dissenting assembly).
We have completed 49 in-depth interviews 1-5 hours in length.
These interviews were conducted with individuals, groups, and
multiple groups but the unit of analysis in all cases was the
group. The 49 interviews yielded information about 71 groups in 4
regions of the United States. Of the groups, 44 were “stable”, 11
were disbanded, another 11 groups were “having difficulties” and 4
were “taking a break”.
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Although we would have liked to investigate groups of the right
and left, we do not have connections to right wing groups, so we
restricted ourselves to “social justice” groups of the left.
Our sampling method was reputational snowball based on our
personal networks. It was essential that we have personal contacts
as we needed the activist version of a security clearance to secure
these interviews. We also composed our sample, purposively
stratifying by the kinds of issues the groups work on and by the
level of surveillance they are experiencing. We chose the four
regions based on our knowledge that each region contained a
diversity of alter-globalization and anti-war groups (since these
are and had experienced which had experienced repression
Of the 71 groups, the median age of the group was 8 years. 32 of
the groups have 501c3 status, 33 are “informal organizations with
shifting participation” and 21 have paid staff. Age of group
members was equally spread between 20 and 60 years of age, with
some participants also older and younger than that range. 42 of the
groups identify as peace or anti-war groups. 41 also work on
globalization issues. 20 work on prisons or policing. 23 work on
immigration issues. 14 identify as anarchist. 9 have worked on
animal rights issues. We asked the groups what kinds of activity
they spend energy on. In our sample, the median amount of energy
spent on lobbying was 17%. The median amount of energy spent on
international solidarity was 25%, 35% on civil disobedience (which
some prefer to call “civil resistance”), and 46% of energy goes
into education.
We used a long, detailed interview schedule organized around
three topics. First we asked about direct experiences and evidence
of surveillance. Then we asked about group members’ perceptions of
the landscape of surveillance, locally, regionally, and nationally.
Finally, we asked them to describe the impacts of surveillance on
their groups, their communities, the social movement that they see
themselves as part of, and on individuals.
prefatory remarks on findings consistent with previous research
Our findings are consistent with Marx 1970, 1974, 1979, 1988, Flam
1998, Churchill & Vanderwall 2002, Boykoff 2006, Davenport
2006, While our findings on the effects of surveillance are
comparable to past work, we have taken a different approach in our
analysis, as I showed at the beginning we are attempting an
interdisciplinary approach.
current surveillance is comparable to cointelpro Our first, and
major, preliminary finding has to do with the significance of
surveillance in the Seattle era. Our instrument allows a close
comparison with Appendix A of Cunningham”s 2004 book on cointelpro.
Cunningham studied internal FBI memos, itemizing all the tactics
they used. Our instrument is sufficiently comprehensive that we
cover in detail much of the same territory. We will be able to
compare effects with Cunningham’s documentation of intentions. We
are not presenting that comparison today. But I can say based on
our preliminary analysis of our data that the nature of
intelligence activity in the era we are studying is comparable with
the COINTELPRO era.
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surveillance cannot be disassociated from policing and
prosecution The second preliminary remark that we need to make is
that our interviewees were not able to disassociate completely
their experiences of surveillance from their experiences of
policing, most markedly from police violence. “also it’s about how
cops in the street make people feel ineffective, marginal.”
Additionally they were not able to separate surveillance from the
impacts of prosecutions, specifically from increasing sentences,
the banning of political motivations from court proceedings, and
grand juries. Morever, interviewees were well aware of the
relationships between surveillance and police violence: “The police
being so overprepared because of their surveillance increases the
risk of violence against us. If they weren’’t expecting something,
they wouldn’t have all that stuff.”
response rate The third preliminary remark is that while all
studies have some response rate difficulties, those suffered by
this study amount to data. Understanding our difficulties with
response rate requires a little background with an issue which will
be discussed more deeply later in this paper. In activist “security
culture”, one of the methods used is “vouching”. Vouching depends
on personal history with a trusted person. A “security clearance”
(although it’s not called that) requires getting a vouch from a
person trusted to the group or person. Sometimes “double-” or
“triple-vouching” is required. Some groups actually do an activist
version of a “background check” in order to ascertain that the
person in question is telling the truth about their history and has
no connections with law enforcement.
We had uneven difficulties with refused interviews. In
situations where our personal credibility and visibility was high,
we were almost always able to secure interviews. In situations
where we were not personally well-known, although we were able to
acquire security clearances, we found an unexpectedly high refusal
rate. In most cases we were not able to ascertain a reason for
refusal because we had no direct contact with the refusee. People
encouraging colleagues to participate in the study were surprised
by the low response rate. We embarked on a process of gathering
data about the reasons for refusals, where possible.
The perception that we were “doing a study”. Already buffeted by
many academics wasting their time, alterglobalization organizations
in particular were reluctant to give us time when ”studies” seem
not to benefit them in any way. Although this study clearly could
benefit them (as well as the larger movement of which they are a
part), they seemed “studied out”. (We did not find this problem
from anti-war/peace organizations.) It is unfortunate that
excessive and often ill-informed research by graduate students has
resulted in a blanket unwillingness of activist organizations to
expend resources participating in studies.
Concern that talking to us would cause the group or organization
to come under surveillance. Several organizations wanted to avoid
us, in the belief that talking to us would amount to an admission
that they were involved in actions that warranted surveillance.
Denialism: A number of organizations who the interviewers
strongly suspect to be under surveillance refused to talk to us on
the basis that they are not suffering surveillance. The most common
way this was denialism was expressed was “well everything we’re
doing is above-board, so the state doesn’t have any interest in
us.”
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There are several motivations for this denialism: (1) Admitting
to being under surveillance could damage the organization’s
reputation and frighten away supporters. (2) In order to manage
their own fears, organizers often have to engage in psychological
repression of their knowledge of threats. (3) Rather than opposing
government repression, some organizations work to reinforce a hard
line between legal and illegal political activities and constantly
reaffirm that they are on the legal side. This assertion involves
the demonstrably incorrect assumption that state repression targets
only illegal action.
Security culture. This is a set of practices which organizations
implement in order to protect the organization and members from
prosecution. Implementing security culture is a lot of work. As an
interviewee pointed out, making distinctions between what needs to
be protected and what doesn’t is an additional layer of work.
Inexperience, fear, or excessive caution can lead to implementing
security culture when it’s not necessary. (Many organizations we
contacted and interviewed do not do any illegal activities, yet
they still use security culture. Excessive caution can take the
form of: (1) Just don’t talk to anyone about anything. (2) Avoid
tape recorders. (3)A belief that since the state is lawless, the
law can’t protect us. There is no reason to bother researching
state activity because the state has no intention of respecting the
Constitution. The only protection is security culture, so breaching
it to collect data on the lawlessness of the state is not
worthwhile.
“Turning over a new leaf.” Perceiving an increase in state
repression, some activists have changed the nature of the activist
work they do or have quit entirely. By dissociating themselves from
surveillance, they assert both strategically and psychologically
that they do not warrant further government attention. They avoid
conversations which would re-associate themselves with having been
the target of government attention.
It forces people to think about things that they have been
dealing with every day….They don't want to acknowledge all that
trauma. They'd like to think that's part of their past and their
future will not include surveillance or harassment. They've turned
over a new leaf in that they've stopped organizing. That was a
chapter of my life in which I was surveilled. I don't do that any
more. I don't do the hardcore organizing. so the government won't
be interested in me.
The Green Scare: Simultaneous with the beginning of our study in
early 2006, what is known as the “Green Scare” introduced at least
four political dynamics which impact response rate. (1) Extensive
federal investigation is happening into activities formerly
understood as a form of Non-violent Civil Disobedience (NVDA) which
are now classified as “domestic terrorism”, specifically property
crime against private interests involved in controversial
environmental practices. Pending sentences for these crimes are as
high as 30 years, with several of the accused facing sentences over
20 years. If criminal categories are actively expanding in this
way, activists have no way of knowing what now legal (or grey area)
acts may soon be characterized as “terrorism”. This means that all
kinds of currently legal activities might not be safe to discuss.
(2) Several of the Green Scare indictments and convictions accuse
defendants of nothing more than incitement to property crime,
chilling political speech. (3) Several of the cases have involved
the affidavits of long-term infiltrators (some of whom had
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plenty of credibility and vouches) as well as extensive
electronic surveillance introduced into discovery (such as 500
pages of phone call transcripts). This has undermined even the most
robust security culture systems. (4) As part of the Green Scare, a
number of grand juries were underway in various parts of the
country at the time of our research. Activists aware of these grand
juries were living in a state of extreme anxiety, concerned that
they might be called before the grand jury, that their friends
might secretly “turn” under the pressure, that (in the best of
circumstances) an unknown number of people will go to jail for
refusing to testify, and that even organizing community solidarity
in response to grand juries could result in another wave of
indictments for “obstruction of justice”.
For the moment, the Green Scare has activists who are aware of
it (and not all progressive activists are aware of it) realizing
that there is no safe political activity, no safe place, and no
safe relationship any more.
How deep the snitches have gotten, I don’t feel like I can even
trust people that I’ve been close with for long periods of time. I
can only trust people I’ve given tattoos to or made love to. That’s
not even a good indicator. ... close friends have switched sides
and given up information in the interrogation room. That’s what’s
putting questions on the people I’m close with. You don’t know if
they’re going to be able to turn somebody.
Now every conversation is a risk. The maxim “don’t trust anyone”
is in play in many communities, severely isolating activists. This
means that a vouch, even a good one, is no longer enough. To have a
conversation, activists must now decide that it is worth the risk.
Often this decision hinges either on personal contact with us, or a
strong recommendation of another person that the study is a
worthwhile activity. In essence, activists need some very personal
motivation to take the risk of speaking with us, even though we are
not discussing any illegal activities in the course of these
interviews. Our activist credentials and security clearances were
not enough on their own to motivate activists to take these
risks.
analysis We use an analytic framework based on social movements
literature, which recognizes 5 important dimensions of social
movements: Social movements draw on many different kinds of
“resources” – money, time, bodies, space, equipment, membership,
allies, publications, etc. In some sense, nearly everything that
movements use is a resource, but scholars have separated out
several of these aspects for distinct analytic attention. They
treat separately both the historical-institutional-rhetorical
context of “political opportunities” and the conceptual “framing”
work of movements. Recent scholarship has also identified culture
as a sufficiently powerful dimension of movements as to require
independent attention. Finally, political sociologists emphasize
the psycho-social and ideological dimensions of social movements as
a realm of study that they call “political consciousness”. We added
another analytic category which is the impact on social movement
organizations, since they correspond to the legal concept of
“association” and are entities recognized by the law.
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how surveillance impacts resources
“…the difficulty of assessing what doesn’t happen…”
Of course, one of the most important social movement resources
is participants. Recent publicity of massive surveillance
databases, along with codes and tags such as “criminal extremist”
and “domestic terrorist”, have created widespread fear to
participate in completely legal political events. Interviewees
explain that “People who might be sympathetic, are now either just
completely neutral or don’t want to know.” Interviewees were not
only concerned about the chilling of fellow citizens’ dissent, they
also explained how it makes those who are active feel lonely and
isolated: “People are staying home to avoid being on a list, so
then it feels like nobody cares.” A number of interviewees stated
their suspicions that FOIA requests, “leaks” of database
information to the media, and other releases of investigatory files
were actually strategic law enforcement activity intended to
intimidate. Reluctance to participate impacts donations to
organizations, numbers of participants in events, willingness to
sign names on petitions and ads, volunteering, and receipt of
newsletters and other educational materials normally sent to
members. “There are people who don’t want to be a spokesperson or a
speaker or write letters to the editor.”
Interviewees were very conscious to acknowledge that shifts in
group membership and quantitative level of activity are
multi-causal. As one interviewee stated, “it’s very difficult to
assess what doesn’t happen.” Many said “well you can never really
know” why someone doesn’t participate any more or why we’ve had
fewer new people joining us this year. Despite this cautiousness,
nearly every interviewee was able to think of people they know
personally who had explicitly stated that they were leaving
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political work due to their fears of surveillance. Several
interviewees stated that they personally knew 20-30 people for whom
that was the case. Many interviewees, when asked to close their
eyes and visualize specific people who used to be active and no
longer are, and who they either know or strongly suspect curtailed
their activism due to surveillance or fears of it, counted 5-10
faces. Everyone knew at least two people who were no longer
active.3 One particularly astute activist explained that he could
list 300 people. Another interview explained “I would not want to
give you a small number because it is my conviction that almost
everyone that I know in [this city] doesn’t want to come out.” An
interviewee who has seen “meetings go from 50 to 10” explains that
“the people who have come are pissed off and they are strong enough
personally and culturally and constitutionally, to come….You don’t
know the other dozen people who’ve decided not to go there.”
Organizations depend on organic leadership development and on
volunteerism. Several interviewees pointed out that surveillance
often targets people who are stepping up and taking responsibility
for logistics, outreach, or safety roles like marshals and medics.
The criminalization of logistics personnel has a chilling effect on
volunteerism.
While individuals are concerned to participate, surveillance
also threatens the bonds between organizations in networks. Perhaps
unlike earlier eras, when surveilled organizations tended to go
underground and isolate themselves (see della Porta 1995; Zwerman
and Steinhoff 2005), what we are hearing from our interviewees is
that instead of self-isolation, surveilled organizations are now
being abandoned by their allies. “As soon as your orgs name is
linked with another org, that may or may not be under surveillance
but you believe is, then there's this sense of we're going to
trigger the alarm bells and we're going to be under surveillance
too, just because we had a picnic with these folks.” According to
an interviewee, organizations have become reluctant to share
listserves and are even mistrusting when they try to have a meeting
together. Another interviewee explained that even educational
events are infused with distrust. The concern that surveillance may
“spill” from one organization to another, or that all organizations
might be held responsible for the actions of allies, leads to a
reduction of solidarity actions among groups. One of the pacifist
groups in our study had been meeting in a church hall. After the
media revealed that they were under surveillance, they were no
longer welcome to use the church and their relationships with
people in that congregation have been strained because they were
viewed as having put the church at risk. An entire town’s political
organizations can be tainted by aggressive criminalization of one
organization. An interviewee has explains how police violence
affects regional organizing, “When I attend meetings in other
towns, people say I don’t want to go [to do political action] to
[city]. It’s scary, it’s dangerous there.’ When you hear that you
realize that the surveillance on [city’s] activists has worked….You
shouldn’t have to stay home to be safe. You should feel safe
wherever you go to express yourself.” An activist explains how
delicate participatory coalitions are damaged by surveillance.
…meetings used to have 50 people and now they have a dozen.
[This coalition was] dependent on input by everybody. Now people
don’t show up, so the decisionmaking process suffers because people
aren’t there to participate. We had pacifists and militants working
together, talking. There are heated disagreements. But add the
pressure of [surveillance] and what was difficult but not
impossible, becomes improbable.
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The next area of resources that is impacted is the nexus of
strategy, secrecy, creativity, and trust. An interviewee explains
the “paralysis” of how trying to be strategic and creative to
create effective actions is impacted by “worry about the heat
you're going to get for even trying -- for even talking about it...
if I do ANYTHING they are going to be watched, hammered down.”
Prior research has documented that inducing paranoia is in fact one
of the goals of surveillance [Churchill and Vander Wall 2002; Marx
197].
how surveillance impacts political opportunities
“5 peoples homes being raided leads to intimidation of millions
of people.” At first we thought that we would not find impacts in
this area, but examining the data, we found that surveillance
forecloses political opportunities in a number of ways. By remaking
public space as a space of imminent police violence, “People were
no longer willing to participate in meetings and activities. There
is a down right fear... people will say things like, ‘yes, I will
answer the phone for you, but I will not show up to the next
rally... I can think of three or four individuals who have gone to
more spiritual activists, like meditations, prayers, and
conversations and will not participate in public rallies.”
Inexperienced activists were easily intimidated by the teargassing
of a permitted rally. But even more experienced activists
experience this effect: “It gets tiring when you are shadowed by 40
cops ready to beat your ass down when there are no illegal actions
planned. It's just a protest.”
Another way in which the climate is changed by police action is
to create an atmosphere of threat, which intimidates participants
and would-be participants. On top of the impacts of police violence
in public space, well publicized surveillance has an powerful
intimidating effect. “again, 5 peoples homes being raided leads to
intimidation of millions of people. it needs to be clear that a
goal of such activity is to isolate the movements that are being
repressed, using the fear of millions of people to create that
political isolation.”
Several pacifist groups we interviewed had been infiltrated
during civil disobedience actions. Going through the very personal
and intense experience of preparing for arrest and then finding out
that one of their fellow arrestees was an agent shook people
deeply. In conjunction with prosecutorial shifts (increasing
sentences and the restriction of political motivations from court
proceedings, forcing the defense to rely on technicalities), civil
disobedience, which depends on using the legal process,
surveillance forecloses of space for civil disobedience. “You don't
want to get your friends and nuns and old people involved.”
A third way in which political opportunities have changed is the
perception of the openness of the system to peaceful change. One of
our groups described itself as “an anti-system kind of group –
we’re about demanding the system live up to its moral code.”
American peace and justice organizations like this one were the
largest type of groups represented in our study. They organize
stalwart, calm pressure and they expect their moral politics to
receive respectful deliberation. An interviewee described feeling
“so disappointed by the teargas. There was facepainting [at the
rally]. If we intended something then we wouldn’t have invited
children…We tried everything we could so there’d be no secrets and
I expected the same thing in return.” Interviewees described the
frustration of having no access to space “closes off this channel
of democracy that we already don’t trust. ultimately whatever we
say will be distorted.” Reflecting on police seizure of art
materials, an
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9.17.07 . 15
interview explains: ”There's a strong statement: ‘our threshhold
for your dissent is so low, it's way down here. we're not going to
tolerate perfectly legal building of perfectly legal things’.”
Another impact on the political opportunity structure is police
action to change the social context in which assemblies occur. A
number of groups we interviewed described the appearance of
counterprotesters or opponents at events which had not been
announced public. This led them to believe that the police were
circulating this information to opposing social organizations. One
interviewee suggested that such police invitations to
counterprotesters is giving a green light to inviting social/civil
violence against dissenters.
Of course one of the most important changes in the climate is
the creeping criminalization of dissent. The line separating
criminality from legality is moving rapidly into the arena of
dissent. The most obvious area is the coding of property crime as
violence. “When people are being thrown in jail for 25 years for
destroying vehicles it means that we are just supposed to follow
orders.” Another is the definition of military recruiters as
federal officers, making interfering with them in any way a felony.
The creeping criminalization even includes the treatment of
educational activities as “threats” to national security. Creeping
criminalization has a variety of effects. First it chills
discussion even of legal activities that may not be legal next
week. We asked an interviewee about legal activities s/he does not
discuss. “Street art...Critical Mass4...squats.”
Interviewees made a number of interesting points about the
creeping criminalization. One argued that it’s happening because
current social movements are in fact non-violent. “People aren't
committing the crimes that they want them to commit. They can't
throw them away, lock them up, so they will invent....charges.”
Another pointed out how criminality is used as a justification for
surveillance, without due attention to the nature of the crime.
Another pointed out that s/he knows s/he can be criminalized at any
time. “We are now protesting and doing activism under the approval
of the government forces. in other words I’m just waiting for the
time when I cross the line (and that line is defined by them) when
they grab my ass. and they can do it any time and they can do it
legally.” Finally, an interviewee carefully explained the impacts
of criminalization for the social context of political action and
its capacity to reach fellow inactive dissenters:
“Since the hugely successful mass action in Seattle with WTO,
routinely since then large gatherings on a whole range of issues
have been portrayed in the media as criminal, violent, disruptive.
[They are portrayed as] people come from no home, coming out of the
shadows, the alleys, to descend on this area and provoke violence
and chaos.... creates the image of the left as a criminal element
of society.”
how surveillance impacts framing
“...we spend a lot of time reworking and rewording simple
statements”
Surveillance impacts framing in three ways. First, the
criminalization of groups interrupts their ability to implement
their frame. An interviewee who was labeled a “criminal extremist”
based on international solidarity work explained the results of
losing control over their frame: “calling us criminal extremists in
the media and in public.
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makes it difficult to have a discussion and be taken seriously.
easy to diminish importance of what someone is saying when police
say they are a radical criminal extremist.” While groups are being
contained, vilified, and marginalized they are not able to engage
in effective communication. An interviewee explains that
surveillance has “hugely impacted our success in getting American
people to stand up and confront that their civil liberties are
being taken away and their consumption is screwing up the planet
and is depriving people in africa and elsewhere to have decent
lives. they’re not getting that message because they can’t hear us
because we’re being suppressed.”
Second, surveillance steals the frame, preventing groups from
deciding how to communicate about themselves. An interviewee
explains that the imposed criminal frame, which s/he points out,
has become “standard and routine”. This aspect of surveillance
“communicate[s] that we are illegitimate and ... a threat not to
the systems of the oppression that we’re against, but ... a threat
to the safety of everyday people in the community.”
The third way that surveillance impacts framing is by causing
groups to feel they must re-frame themselves. Groups talking about
choosing their words very carefully, and spending a great deal of
extra time reviewing the words they choose. One informal
organization explained “the assumption that everything is being
read puts pressure to word things carefully to make sure it’s clean
and carefully worded...we spend a lot of time reworking and
rewording simple statements...concerned about seeming inflammatory
[or] confrontational.” They joked that they now have a “department
devoted to that”. Then they became somber, describing the
significance of this vigilance as “an accepted dimension in how we
operate...it [surveillance] creates a new priority that wouldn’t
otherwise exist.” Another organization takes this re-framing even
to the point of how they describe their assemblies: “We don't hold
protests or demos we hold "public awareness rallies". Our language
has changed. We have to be more precise. can't talk like a regular
person... if you're chatting away you might say the wrong
things.”
how surveillance impacts the culture of protest
“New people can’t get involved. It’s hard to build a movement on
community when secrecy is an important thing.”
Surveillance impacts the culture of protest by reducing the
quality and quantity of political discourse: “We’re scared to be
able to openly and honestly talk about issues in our community,
state using that info to crush legitimate movements.” A middle-aged
man in a peace group told us “my mom is scared to talk to me on the
phone...What is she allowed to say and not any more.” Another peace
group reported that before they found out about the extent of
surveillance they were under “we used to be a lot closer. Now we
sometimes talk in code, more cryptic, share less information. We're
all a bit more reserved in terms of our speech.” An activist
explains “I don't like even talking about politics with them
because I don't want to get either of us confused in each others
business. If someone is being watched for something i'm not being
watched for, I don't want to talk about politics with those
people.” Another activist
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says “People are scared of the implications of just being
radical. There’s almost no space that we consider safe…People just
stopped expressing those views entirely.” We found three distinct
impacts of reduced discourse. The first is elimination of what is
called “cross-pollination”: “It was nice to be able to tell stories
of like I worked with this organization and can I help you build...
Here’s what we did that you all might be able to do... Now ...you
can’t help them out, you can’t tell them stories of things you’ve
done before. Because if they were a snitch you’d be in a really bad
situation.” A second aspect of reduced discourse is secretive
planning. As mentioned above, organizations are communicating much
less and across fewer media. “There isn’t that constant discussion,
which can be really beneficial. Then you get everybody’s opinion if
you can talk to everyone.” This interviewee went on to explain how
discourse is intentionally reduced as a protective measure: “Here,
we can only talk about what’s going on here. Next week we can’t
talk about this any more. And we can’t talk about something else
until it’s sure who’s going to be part of it....” Another
interviewee summed it up: secretive planning is a disaster in
community building, “we couldn’t think creatively.” If actions
cannot be discussed later on, then the strategy of the movement no
longer moves forward. The third aspect of reduced discourse is the
lack of debriefing. Secretive planning is just one of many
dimensions of what activists call “security culture”. Surveillance
has in fact caused security culture to replace organizing culture,
with devastating impacts. The hallmarks of organizing culture are
inclusivity and solidarity. The hallmarks of security culture are
exclusion, wariness, withholding information, and avoiding
diversity. “It’s hard to build when you’re suspicious.” Another
activist jokingly described security culture as the “icemaker”,
which has replaced the “icebreaker”. S/he went on: “Like handing
out a signup sheet. If people feel like that’s going to get in the
hands of the government that means that people are not only afraid
to sign up, but afraid of asking for it.” A new activist described
the experience this way: “What’s the opposite of unites? When I’m
suspicious or they are, it creates a tension, conscious or not,
about who people are and what their intentions are.” Our
interviewees were very conscious of the effects of the cultural
shift. “People perceived us as not inclusive because we were so
scared.” An activist described their group as showing “paranoia,
freakiness, and unwelcomingness that results from the fear...”
Another admitted “There’s not as many people involved, there’s not
as many voices in the decision making, there’s not as many people
from different walks of life.” An activist explained, with alarm,
that security “was the first thing we talked about, even before our
name or what we're going to do.” Another interviewee pointed out
that security culture has become so common that people are using it
for actions that don’t need to be protected. “There’s confusion
over what actions need to be clandestine and what doesn't.” We
noticed in implementing security in this project that it took a lot
of energy simply to distinguish when we needed to be secure and
when we didn’t. Security culture also involves speaking in code,
which, interviewees joked, made communication nearly impossible in
some circumstances, particularly when organizers try to communicate
with more peripheral people. Interviewees also described the effect
it has on themselves as organizers: “I had to learn not to welcome
people and not give out information... I’m interested in community
building, and then you’re taught to be suspicious and not welcome
people it’s antithetical to your theory of change. Another explains
when I see people I don’t know I get excited. when I saw the
undercovers I was amazed that we had attracted folks that don’t fit
in, and I was sad when I found out they were
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9.17.07 . 18
undercovers.” Another interviewee described how people who fit
too well are suspicious as well as people who don’t fit in. S/he
described someone who has been softly excluded from the group: ”It
makes me suspicious of people who are potential friends and allies,
in ways that don't make me comfortable.” Prior research has
documented that inducing paranoia is in fact one of the goals of
surveillance [Churchill and Vander Wall 2002; Marx 197]. “It’s just
constant…When someone new shows up, the whole meeting changes.”
This is a limitation on association rights. A second impact on
cultures of protest is breaking the experience of trust. (also see
Davenport 2006) After it was revealed that a group’s civil
disobedience action was infiltrated, “people were tense, held back,
uncommunicative. not feeling good about themselves and other
people... [There’s] something insidious about destroying the
trust.” An interviewee who learned that a long-term and close
friend was an FBI informant describes the effect of the
experience:
“If this friend of mine could be an informant, then anybody
could. I didn't trust any of my friends all of a sudden. the world
didn't make sense. if he was an informant, it was so unbelievable
that anything could be true. my entire reality was disrupted...I
want to get out there and do more, but my body is so impacted by
the experience, having all my friendships and alliances thrown into
question, that I'm not really doing much any more.”
Moreover, it disrupted the bonds of friendship and community:
“We're lonely in our churches and organizations where we work. so
there's an incredible sense of community when we meet [other peace
activists]. We're hugging and learning to protect each other and
what we're going to do when we go to jail together, protecting each
other from brutality, learning what peoples weeknesses are. To know
that in the midst of all of that there's someone who's spying on
you, essentially. it makes you very sad, and hurt.” Another
striking impact of surveillance reported by several groups is that
they destroy all written records of their work. They do not take
notes at meeting. As one interviewee reported: We’re afraid to have
a piece of paper with anything written on it at the end of any
meeting. Many interviewees said that they don’t want to be seen
taking notes, as it would make them look suspicious. This is the
destruction in advance of the history of the movement. The last
aspect of impact of surveillance of cultures of resistance is the
impact on prefigurative practices. One version of this kind of
shift is a church group who described how surveillance caused the
congregation to question (and ultimately to largely abandon) their
“Christian obligation” to social justice. A more widespread version
of this impact is its disruption of participatory democracy, one of
the hallmarks of current US political culture. Many groups reported
that they were no longer maintaining their former level of
inclusivity in decisionmaking. [See Marx 1979, Boykoff 2006, Flam
1998, Goldestein 1978] “Sometimes a handful makes decisions and it
never used to be that way.”
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how surveillance impacts political consciousness
“I’m thinking about oh I wonder if somebody’s watching or
listening I think ’I don’t care because I’m doing nothing
wrong’
and then I think ’oh shit, it doesn’t matter any more.’ “
Finally, we turn some attention to the effects of surveillance
on individuals which are related to the exercise of assembly
rights. In this section of our study, the unit of analysis is the
individual. The first impact is the perception of one’s legal
political work and oneself as marginal or criminal: ”Even the word
activist is stigmatized. people have disgust for what you do.
you’re not a committed, responsible citizen. you’re this crazy
hippy, trying to cause trouble and not thinking about the future
and being a citizen who does the work and lives on the way the govt
wants you to.” The second type of perception is the perception of
oneself through the eyes of others as a possible infiltrator: “I
must look suspicious. I was vague about myself. I see myself as an
infiltrator.” An interviewee explained: ”If we're all the same
fight, we respect that hesitancy. .... I don't fit totally into the
culture, or I'm too something. I do feel insecure and shy about
it.. it's just this unnerving feeling of I'm being myself, I feel
legitimate to myself, I have all these experiences and know all
these people, but maybe that's not good enough.” Interviewees
talked about the impacts on their own capacity to work of the
breaking of a culture of trust. “I didn’t want to meet anybody new,
I didn’t want to be in a relationship, I didn’t want people to know
me, or be close to me in that way.” Another said simply “When
you’re socially isolated it’s hard to be an organizer. if you’re in
that kind of fear level it attacks your immune system and affects
your health, and your ability to relate to people.” For many
interviewees, surveillance has caused them to see the government as
lawless. Aware that the line of criminality is moving, they believe
that anything could happen at any moment. “…rendition without
charges case, I think that enters into people’s subconscious, like
every moment of their day.” An activist explains the effects of not
knowing what is going to be illegal on any given day. ”…stepping
off the sidewalk, those are only civil infractions and only
circumstantially illegal. ...it's so often arbitrary. that's
peoples experience. sometimes you can march in the streets
sometimes you can't. Rhat's the area most affected for people.
Their political imagination gets curtailed by repression.” A young
activist says: “It is scary that maybe one day the police will just
walk in my door and take me or I’ll have a bunch of charges that I
don’t know are accumulating, legitimate or illegitimate. the way
the government is operating now it doesn’t seem to really matter
the accuracy of the data.” The next area of impact on individual
activists is the pressure to disassociate from risky areas and
people. “I have really shifted the things that I’m willing to work
on from anything that was progressive and radical to things that
are more peace and justice as opposed to fighting the system.”
Another interviewee explained “I’m cautious about people I meet. I
met someone from Pakistan and I have his card. But now I am
choosing to get rid of materials associated with him because he’s
in the Middle East.” Activists experience this demobilization as
tragic: “There was a time in my life when I felt like I was going
to do something powerful. WE were going to do something powerful.
and it was all taken away. And now it feels like I'm just going
through the motions. I'm just verbalizing it, I'm not living it.”
Perhaps the most chilling impact on political consciousness is
the
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discouragement to be associated with critical ideas and
practices. This was discussed by our interviewees is the case of
Ward Churchill.
It was a message: “shut up or else. Don’t question the received
wisdom about 911.” … the thing that prompted it all were his
comments about 911, war in Iraq, resistance to imperialism… Daniel
Ellsberg – he’d be dead in the water at this juncture. Ward just
wrote an essay, he didn’t release any private government
documents!...
It happens with collaboration of a lot of private interests. The
FBI has been silent on Ward. Other people are doing the work. It
wasn’t the government, it was Clear Channel Communications and a
network, including private intelligence. What it shows is the
confluence between media, law enforcement, government. …. The media
attack didn’t come from the media. it was fueled by intelligence
agencies. I am convinced that [intelligence agencies] leaked info
to private media and right wing blogs…. It didn’t stop with
Ward...Now I have a Clear Channel file. You’ll never see that one
until they broadcast it [They say] “we have the info, it’s your
choice when we release it.” This forces self-censorship.
Are there things I wanted to say that I didn’t? Yes. [Ward] has
to spend every hour of every day responding to personal attacks. …
Now we’re a year into it. This may be one of the most dangerous
cases in our time, because of its chilling effect. Anyone
associated with Ward Churchill is contaminated. If you honestly
come out and say “I think that Ward was right” you’re a pariah….
Some organizations have started to say “we will work with you if
Ward is not there.” Why is [Ward] ground zero for the new form of
squashing dissent? … Another interviewee describes the impact on
their political practice: “Here i am thinking about how i'm going
to create this alternative lifestyle but people are listening to me
all the time and are going to illegalize that. [I feel I should]
live a normal life… It'll be easier for me to hang out and drink
beers instead of being passionate and political – stop being such a
wierdo, cut down on the types of things that make me feel like
that. But those are the things that are important. That's stupid,
it sucks. People are afraid to ride bikes around town… We don't do
Critical Mass any more. All of a sudden people got arrested, booked
on wierd charges. … At this point I assume the FBI will know
whatever i do: Is this worth it being on my FBI file? We feel wierd
about going into any government building, avoid it at all costs.
They'll take any opportunity to trick me into jail… I'm afraid
things will get confiscated. Or just if I have a pocket knife that
I forget to take out when i go pay for a parking ticket.”
how surveillance impacts social movement organizations
“…and you’re trying to communicate with millions of people…”
The organizations we studied included formal organizations, like
churches and nonprofit 501c3 organizations. We also included ad-hoc
groupings focused on an event, affinity groups, and informal but
long-term community groups. Much social movement work happens
outside formal organization, in various informal groupings.
The first way that our interviewees explained their
organizations being
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affected by surveillance is the experiential aspects of general
criminalization. They were subject to surveillance implying
criminality when they were not involved with anything illegal.
Weekly meetings were criminalized, watched, patrolled. This gives
the message to groups and activists that “not only are we watching
you, but everything you’re doing is wrong.” An interviewee
explains, “they drive by on a regular basis…[Sometimes they are]
out of their cars walking down the block writing down plate
numbers. This intimidates people from coming to our meetings.” An
interviewee explains “People definitely don’t want to put their
names on leases, phone bills, anything that takes down your name. I
don’t want to be associated with this [group] that they think are
terrorists.” S/he goes on: “We barely did anything and got fucked
with by the cops. How can we begin to be effective if we can’t even
do anything? It affects peoples motivation. They become apathetic,
depressed, alcoholics. Depression and alcoholism are on the up and
up. Political activism is on the down and down.”
Surveillance sullies the reputation of organizations – this is
the public relations aspects of criminalization. Without any
prosecution having occurred, potential participants, donors, and
supporters perceive an organization as criminal. Social justice
organizations that are part of religious congregations found that
their reputation for surveillance damaged their relation with their
communities: “If we were being watched and beat up, then there must
be something not right about what we’re doing... As if we’re not
really [religious people]...Our reputation was tainted. If the
police don’t trust you, something must be wrong with you.”
As recognized by Boykoff 2006, Cunningham 2004, Davenport 2005,
Marx 1970, 1974, 1979, 1988 and Flam 1998, organizations under
surveillance tend to shift their agenda from projects to
self-defense. Interviewees described this repeatedly as “a
distraction”. An interviewee states “what I want to be doing is on
the street holding a sign and doing my protesting. But when we
pulled off into being concerned with countersurveillance.” An
interview observes that the new leadership of their group “avoids
anti-war and anti-military and protest [but] we’ve always been
about war and peace and nonviolence.” Other organizations described
their struggles against the criminalization or restriction of
demonstrations. The most striking example of this shifting agenda
was a church we interviewed, whose governing board was so spooked
by surveillance that they curtailed most of their donations from
their endowment. Interviewees from this church were shocked when
the church failed even to give money for aid after Hurricane
Katrina.
Even once the immediate self-defensive activity is over, the
agenda of the organization may be permanently shifted. A long-time
board member of a 27 year-old peace and justice organization
reflected on the effects of overt surveillance 6 years after it
happened. “It's scared us from sponsoring events, put a damper on
it. My sense is we would have been much more active aginst the war.
As an organization we've avoided initiatives…We haven't done [any
civil disobedience] since then. We've participated in other groups’
events, [holding] banners…We have been more low-key than in the
past… We haven't been in the public eye as much…I think we've
stayed away from contentious issues. We haven't said anything about
immigration or about the war.” This interviewee went on to say that
the organization avoids taking any initiative and has not sponsored
any protests or civil disobedience since their experience with
overt surveillance. “Our straegy changed to put more emphasis on
education…we’re more likely to do legislative lobbying rather than
protesting.” When interns propose other actions “the response is to
mute suggestions.”
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We were very surprised to find how broadbased was the chilling
of internal communication in organizations. Regardless of the legal
status of the activities they participate in, nearly all of the
groups we interviewed have reduced their use of email and
telephone, have built extremely “complicated” communications
systems, or try to have their meetings in person. “We did not use
email at all, for anything. We set our meetings at rotating
locations and everybody knew where the meeting was going to be. We
wouldn’t communicate by phone.” Interviewees were quick to point
out how much this “slows us down.” Because of the difficulty in
communicating, “things that take a lot of planning don’t ever
happen.” Many organizations referred to the problems they have
communicating with members have gone “totally off line” or people
who want to participate but will not give their name or put their
contact information on a list. “...and I'm not talking about people
doing untoward things, I'm just talking about people who choose to
be out of the surveillance realm.”
“It totally changes the character of any conversation. ‘Do you
remember that meeting we talked about last week well it’s happening
tonight. What’s it about? I’ll tell you later.’ “
The final point that is a specific impact on organizations is
how surveillance creates a reluctance to maintain particular
organizational arrangements. Instead of working for a long time
with the same group, activists feel safer changing groups
constantly. “I’ve noticed a big shift from long term strategizing
and community building to direct action and then disappear. No
ongoing collectives, just talk to one person about each thing I’m
doing.”
conclusion We have seen that current surveillance is an alarming
threat to mobilizations, and thus to the exercise of
constitutionally protected rights to assembly and association. Our
findings about the post-Seattle era are consistent with studies of
previous activist eras. Current surveillance is both qualitatively
and quantitatively comparable, with the enhancements of technology
and Congressional leniency apparent. In only one qualitative
dimension does our data diverge from previous findings, which is
that we did not find the customary dualism in which hardcore
activists become more militant while others become more moderate.
[Lichbach 1987, White 1989, Tarrow 1998, Zwerman & Steinhoff
2005]. Instead we found signs of pervasive pacification. In lieu of
going “underground” to continue their actions [Davenport 2006;
Johnston 2005], activists are evading the surveillance net by
dropping out of social connections entirely while organizations are
abandoning “grey area” activities like civil disobedience and
moving toward doing educational and permitted activities.
Nevertheless, many activists have in fact redoubled their
efforts to promote social change through nonviolent “grey area”
methods, a sentiment reflected by Father Roy Bourgeois of the
School of the Americas Watch: “The spying is an abuse of power and
a clear attempt to stifle political opposition, to instill fear.
But we aren’t going away” (Cooper & Hodge). In Arizona, a group
of nonviolent activists who had been under surveillance by
terrorism agencies went to the FBI headquarters and “turned
themselves in” as a symbolic act of defiance and as a demonstration
of their unwillingness to abandon their efforts (World Prout
Assembly). Thus, while there
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the impact of surveillance on the exercise of assembly rights.
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may be a sense of fear among many activists, there is also is a
demonstrable spirit of rededication to the myriad causes that
social movements undertake.
We are interested in the persistent attempt to rationalize
surveillance and repression. Scholars of social movements should
take note of the implications for consciousness of the state and
forms of repression. We observed age and class distinctions here.
While some organizations edit and re-edit their press releases,
younger activists know you don’t have to do anything at all to be
targeted. The lack of understanding from the elder progressive
community has led to a rationalization of repression, taking the
form of blaming young people for their own repression (particularly
for “provoking” police actions at protests); limiting support for
“Green Scare” defendants; and providing little collective concern
for defending people from illegal investigations, and absurd
indictments, bonds, and sentences. Rationalization collaborates in
the creeping criminalization of dissent and political activity.
However, conservative decisions on the part of activists and
organizations are highly understandable in light of the costs of
surveillance to membership, fundraising, family life, and
organizational resources. An organization which was illegally
searched spent more than 1500 hours of volunteer time dealing with
the fallout for their membership and relations with other
organizations. They finally filled a lawsuit for damages, which
took 5 years to resolve. Databasing increases information
collected, with no opportunity to purge, correct errors, or
challenge interpretations. An interviewee notes that even
requesting to see your government file is treated as an admission
of guilt. It will be the “first entry in new files… i’ve been doing
something that makes me believe that you may have reason to monitor
me.” Activists who viewed a lot of released files noted that “the
redaction was deliberately inept”, which has a further
counterinsurgent function. There is no mechanism of accountability
for false accusations, improper or unwarranted investigations, or
erroneous surveillance. Entry of a presumed relationship between
two organizations proliferates to everyone with even remote links.
Rapid information sharing between jurisdictions, (including
internationally) exponentially increases the impact of tags.
Cultural changes resulting in the loss of history and process
have major implications for social movements and the study of their
processes and outcomes. Driven by creeping criminalization (we do
not know what will be illegal next year), as part of security
culture, organizations do not create archives and do not take
meeting notes, and activists often do not keep diaries. Moreover,
our interviewees explained that strategic and ideological dialogue
is greatly reduced. Not wanting to be implicated or to implicate
others, political actions are now planned and undertaken in a
bubble of time never to be referred to again, with colleagues who
will scatter immediately, never referring to one another or what
they learned from the action. In addition, people are reluctant to
discuss their political ideas, reducing the quantity and quality of
political discourse and ideological development. Surveillance of
educational events also makes it more difficult to spread analysis
and theory.
The data collected here do suggest that challenges to securing
legal standing to overcome the burdens raised by the case of Laird
v. Tatum, 408 U.S. 1 (1972), can be surmounted. In the very recent
case of ACLU v. NSA (06-CV-10204, E.D. Mich. 2006), for instance,
Judge Anna Diggs Taylor rejected the government’s invocation of
Laird in defense of its warrantless domestic eavesdropping program,
noting that the plaintiffs in that case (journalists, scholars, and
political organizations) had demonstrated actual
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the impact of surveillance on the exercise of assembly rights.
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and not merely hypothetical harm as the result of unwarranted
surveillance. Similarly, our findings indicate that the harm
suffered by political organizations and individuals as a result of
widespread surveillance, infiltration, and documentation, is
legally cognizable and not at all speculative (cf. ACLU-NCA,
discussing the “First Amendment Rights and Police Practices Act of
2005”). More broadly, we suggest that programs such as this violate
basic rights to freedom of speech, assembly, and association, which
strike at the core of any social movement’s ability to operate in a
democratic society. As Justice Douglas observed in his dissenting
opinion in Laird: “When an intelligence officer looks over every
nonconformist’s shoulder in the library, or walks invisibly by his
side in a picket line, or infiltrates his club, the America once
extolled as the voice of liberty heard around the world no longer
is cast in the image which Jefferson and Madison designed. . . .”
(408 U.S. at 28-29). Likewise, as Judge Warren poignantly wrote in
U.S. v. Robel, 389 U.S. 258, 264 (1967): “It would indeed be ironic
if, in the name of national defense, we would sanction the
subversion of . . . those liberties . . . which makes the defense
of the Nation worthwhile.”
Based on our reading of Cunningham and an examination of our
data, we conclude that much current law enforcement surveillance is
more properly conceptualized as counterinsurgency. While the state
can always justify depriving individuals of their rights in the
interest of public safety or national security, or justify
repression of an organization based on some concern about
criminality, counterinsurgency against an entire movement violates
the fundamental protections of the First Amendment, which is the
foundation of a democratic society, variously conceptualized as a
marketplace of ideas, a context of free debate and dissent, or
self-governance
Based on our analysis, we suggest shifting the “unit of
analysis” from aggrieved individual activists or groups to the
context of associations which make assembly possible: the social
movement. We propose that social movements present themselves as a
class before the law, in class-action lawsuits modeled on
consumer-rights litigation. If a social movement could gain
standing as a class, it could include people who are not members of
an organization, as well as dissenters who may have never taken
action because of anticipatory conformity. It is the concept of
social movements which can bind direct and indirect chilling
effects into a coherent grievance, demonstrating that there is no
non-problematic level of surveillance in a democratic and free
society. It is of fundamental concern that, to this point, a social
movement per se has not yet been represented or referred to in the
law as a cognizable entity. We conclude that this has both impaired
litigation efforts and to undermine the vital role of social
movements in a democratic society.
I didn’t know that the event was classified as domestic
terrorism…[I attended] a peaceful rally with [my 3 year old]
child…I definitely know that my experience has made my thinking
more radical, but has also tempered my action.
One has to immediately question who is really getting
surveilled? People who deserve it or people who are dangerous or
asking for it?... It is regular people who are just standing up and
trying to say something that's not even necessarily controversial
but not within the government agenda.
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the impact of surveillance on the exercise of assembly rights.
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references ACLU-Colorado. 2005. “New documents confirm: FBI's
Joint Terrorism Task Force targets peaceful activists for
harassment, political surveillance.” Retrieved on November 3, 2006,
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http://www.aclu-co.org/news/pressrelease/release_JTTF051805.htm.
ACLU-NCA. 2005. “First Amendment police standards bill becomes
law.” Retrieved on November 24, 2006, from
http://www.aclu-nca.org/boxSub.asp?id=76
AFSC.org. 2006. “Newly released surveillance files reveal
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http://www.afsc.org/news/2006/SecretSurveillanceFiles.htm.
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