{"id":728,"date":"2020-01-13T11:40:40","date_gmt":"2020-01-13T16:40:40","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/critique1313\/?p=728"},"modified":"2020-02-04T10:20:12","modified_gmt":"2020-02-04T15:20:12","slug":"spied-like-us-from-technologies-of-domination-to-technologies-of-the-self-t-j-thompson","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/critique1313\/spied-like-us-from-technologies-of-domination-to-technologies-of-the-self-t-j-thompson\/","title":{"rendered":"T.J. Thompson | Spied Like Us: From Technologies of Domination to Technologies of the Self"},"content":{"rendered":"

By T.J. Thompson<\/strong><\/p>\n

The case study of Lawrence v. Texas<\/em> concretizes themes discussed in Critique 6\/13, including modern sexuality & changing subjects of law, as well as re-configured manifestations of avowal in digital life. In so doing, Lawrence<\/em> demonstrates how, through observing technologies of the self, the study of subject creation and subjectification informs a three-dimensional critical project: disclosing the contemporary knowledge-power-subject<\/em> framework of expository society. \u201cPower consists in complex relations: these relations involve a set of rational techniques, and the efficiency of those techniques is due to the subtle integration of coercion-technologies and self-technologies.\u201d[1]<\/a> Simply, the rights acknowledged in Lawrence<\/em> allow gay men to be the kind of expository subject requisite for the knowledge-power structure of the surveillance state. They ground the self-technologies that enable coercion technologies. In this way, rights operate as an instrument of new subjectivities, though with an undertow certainly flowing against the spirit of emancipation.<\/p>\n

I begin first with a brief exegesis of Lawrence v. Texas<\/em> in the context of shifting sources of fundamental rights. Next, Foucault\u2019s work becomes key to seeing how Lawrence<\/em>\u2019s prohibition on certain regulations of sexuality enables the expository practices upon which government and corporate surveillance are built\u2014that is, a shift from technologies of domination to technologies of the self. Finally, I will briefly discuss how expository avowal rearranges the categories of avowal considered in Foucault\u2019s work.<\/p>\n

Lawrence v. Texas: The Last Right to Privacy<\/em><\/strong><\/p>\n

In June 2003, the Supreme Court of the United States held that the right to privacy guaranteed by the 14th<\/sup> amendment extended to individual protections against same-sex sodomy laws:<\/p>\n

\u201cThe petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the [14th<\/sup> amendment] Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”[2]<\/a><\/p>\n

 <\/p>\n

The milestones of this right to privacy, first expressed in 1890 by future Supreme Court Justice Louis Brandeis, are sexual ones. It was first recognized in 1965 as the right to marital contraceptives (Griswold<\/em>) and extended to non-marital contraceptives (Eisenstadt<\/em>), abortion (Roe v. Wade<\/em>), and ultimately to “persons of the same sex [who choose to] engage in\u00a0 . . . sexual conduct\u201d in 2003 with Lawrence<\/em>.[3]<\/a><\/p>\n

The development of this fundamental right stops there. The subsequent gay rights victories Windsor<\/em> (federal law against same-sex marriage violates the 5th<\/em> amendment Due Process clause) and Obergefell<\/em> (constitutional right to marry) did not<\/em> rely on the right to privacy.[4]<\/a> Obergefell<\/em> famously relied on a concept (up to then) nascent in American rights law: dignity.[5]<\/a> In 2003, Lawrence<\/em> did in part refer to dignity to substantiate the more traditionally protected value of liberty,[6]<\/a> but the role of dignity in Obergefell<\/em> was central and direct: \u201c[t]he fundamental liberties protected by [the Fourteenth Amendment’s Due Process Clause] \u2026 extend to certain personal choices central to individual dignity and autonomy<\/em>, including intimate choices defining personal identity and beliefs.”[7]<\/a><\/p>\n

This shift in jurisprudence, while articulable as a decades-long project by the swing-vote of the Court,[8]<\/a> just as well reveals and reflects not simply a shift towards a new fundamental right of dignity, but much more importantly a shift away<\/em> from a fundamental right to privacy. The distance between Lawrence<\/em> (argued in March 2003) and Obergefell<\/em> (argued April 2015) is the distance between the first Iraq war (began March 2003) and Harcourt\u2019s Exposed<\/em> (published November 2015).<\/p>\n

What is at stake here is not what the right is, but where it comes from. By 2015, it would simply be embarrassing for a court to extend a marriage-as-privacy right when any semblance of privacy<\/em>-as-privacy rights had dissipated over the past decade and a half. This also explains Lawrence<\/em>\u2019s hesitant reliance on dignity\u2014while the court had not yet heard cases challenging the 2001 PATRIOT Act, it did not require much forethought to anticipate the implications it carried for privacy.[9]<\/a><\/p>\n

This is to say, it is not simply that there is an extension of an already existing juridical field\u2014i.e. a right against state interference within the bedroom. Rather, in this extension the juridical right, privacy, must itself transform under the weight of competing, seemingly unrelated concerns. In affording practices of subjectification, the juridical field transforms itself along with the subject. It is here the Foucauldian thinking operates at its most disclosive. Rights discourse is often characterized in terms of progress, as a slow march\u2014albeit with occasional falters and backtracking\u2014towards a teleological end value.[10]<\/a> \u201cThe arc of the moral universe is long but it bends towards justice.\u201d[11]<\/a> What mindfulness of Foucauldian epistemes reveals is that rather than a march towards a teleological end (i.e. equality), moments like Lawrence<\/em> function as shift in the seamless web of a given episteme. The extension of gay rights in Lawrence<\/em> is not progress (or non-progress), it is simply difference. To many, including myself, this difference is certainly a welcome one that accords with my vision of the moral universe, but thinking with Foucauldian epistemes keeps one mindful that such moments are not an arc bending towards justice, but a reconfiguration of how power constellates.<\/p>\n

Lawrence v Texas: From Technology of Domination to Technology of the Self<\/em><\/strong><\/p>\n

Lawrence<\/em>, in holding prohibitions of same-sex sexual conduct unconstitutional, represents a shift in American gay subjectivity from technologies of domination to technologies of the self. This shift allows for the full participation of gay subjects in practices that create and enable the surveillance state.<\/p>\n

The use of Texas criminal law to penalize gay practices is a clear technology of domination, \u201cdetermin[ing] the conduct of individuals and submit[ting] them to certain ends or domination, an objectivizing of the subject.\u201d[12]<\/a> The turn in Foucault\u2019s project in the early 1980s helps us understand how individual practices, technologies of the self, render one into the kind of subject governable by a particular knowledge-power framework.[13]<\/a> \u201cPower consists in complex relations: these relations involve a set of rational techniques, and the efficiency of those techniques is due to the subtle integration of coercion-technologies and self-technologies.\u201d[14]<\/a><\/p>\n

Lawrence<\/em> played a pivotal role in enabling gay American amenability to surveillance. As Harcourt observes, segments of society have developed as self-expository subjects embedded in a private\/governmental surveillance system.[15]<\/a> \u201cOur constant attention to ranking and ratings, to the number of \u2018likes,\u2019 retweets, comments, and shares, start to define our conception of self.\u201d[16]<\/a> Equality rights form the predicate for this expository self by alleviating tension between sexual and expository subjectivities. If \u201cwe are our sexuality,\u201d if \u201cwe cannot think of ourselves, of our most fundamental psychological identity without thinking of our sexuality\u2026 that reveals the type of individual that we are,\u201d[17]<\/a> then online forms of identity expression and formation must be amenable to sexual identity. Simple, if being gay is illegal, gay people are not going to participate in the self-expository practices upon which state and corporate surveillance are predicated. Gay online communities today (Gay Twitter, Gay Instagram) would be gone for fear of inducing police raids. About 5-10% of the population may refuse to engage\u2014or even more undermining, may develop counter-surveillance tactics to enable un-surveilled online practices.<\/p>\n

It is for this reason that Lawrence<\/em> interacts so directly with themes discussed by Critique 6\/13. On the issue of regulatory quantity versus quality\u2014i.e. do recent legal changes make one more and more a subject of law, or simply a different subject of law\u2014a third angle arises: changes in legal rights not only operate as a legal transformation of that<\/em> regulatory mechanism (i.e. regulating sexuality), but implicate adjacent or even hitherto unrelated regulatory mechanisms. Lawrence<\/em> allows gay men to be the kind of expository subject requisite for the knowledge-power structure of the surveillance state. It is by dint of being a rights bearing individual, of the right against the state which limits state sexual regulation, that grounds a technique of the self requisite for both state and corporate surveillance. The right to privacy is an ability to live publicly and, ultimately, expositorily.<\/p>\n

It is unclear whether the practices of the expository self are a new form of avowal or a different type of subjectivation all together. Or rather, what continuities does expository avowal have with those described by Foucault, and what do these family resemblances mean for the expository subject? The lack of clarity is because digital self exposition rearranges the categories of avowal, and also acts as a less conscious mode of subjectivation. Wrong-Doing, Truth-Telling<\/em> describes the development of avowal as a technology of the self through its role in Christian hermeneutics of the self. However, digital expository avowal does not fit neatly into the categories of this hermeneutic or its predecessors. Unlike the Stoic expositio animae<\/em>, digital exposition is not a taking-stock of oneself. Unlike Christian hermeneutics of self, humility, patience, and submission do not take a central role. It\u2019s fascinating\u2014a Stoic would ask us to examine every meal, but Instagram foodies take that self-examination and turn it into self-exposition sans<\/em> examination. Perhaps this is because, interesting, there is no wrong-doing at the core of digital exposition. It is simply truth-telling, the constitution of online identity through statements of beliefs, desires, associations, life events. The digital practices flirting with avowal are not consciously embedded in ethic.[18]<\/a><\/p>\n

Nor in an experience of government. Related to the absence of wrong-doing and an ethic, there is no experienced inquisitor and the subject likely does not know (or forgets) the role that subject\u2019s participation plays in subjectivation and governance. While platforms induce avowal through addictive features,[19]<\/a> the subject does not experience the avowal as induced and moreover any induced avowal is not an inducement for<\/em> anything in particular\u2014the platform begs for participation, not any particular kind of participation. Unlike a trial, there is no requirement of relevancy between speaker\u2019s truth and its circumstances. Unlike a confession, in which by \u201cconfessing one\u2019s acts [] one receives the possibility of salvation\u2014but at the price of total submission to one\u2019s confessor,\u201d the expository avowal does not see its inquisitor, which operates instead as a silent aggregator of information.<\/p>\n

These categories of avowal\u2014private\/public, wrong-doing\/truth-telling, subject-creation\/subjectivation to power\u2014are exploded in the analysis of digital exposition as avowal. The type of subject needed a surveillance knowledge-power-subject <\/em>framework does not even need to know the framework exists, unlike, for example, Christian technologies of the self.<\/p>\n

Conclusion<\/strong><\/p>\n

The publication of Foucault\u2019s final work on subjectivity gives cause to integrate his thinking on subjectivity into the broader framework of knowledge-power-subject critique. One way to begin is to interpret the recent monumental moments of gay liberation in terms of how they shift technologies of subjectivation and how, in securing some freedoms, they may derogate others.<\/p>\n

[1]<\/a> Michel Foucault, \u201cInterview with Andre Beten\u201d in Wrong-Doing, Truth-Telling: The Function of Avowal in Justice<\/em> (Eds. Fabienne Brion and Bernard Harcourt), p 240.<\/p>\n

[2]<\/a> Lawrence v. Texas<\/em>, 539 U.S. 558, 578 (2003)<\/p>\n

[3]<\/a> See generally<\/em> \u201cPrivacy\u201d in Wex Legal Dictionary<\/em>, Legal Information Institute. Available at: https:\/\/www.law.cornell.edu\/wex\/privacy<\/a><\/p>\n

[4]<\/a> Note, Equal Dignity\u2014Heeding Its Call<\/em>, 132 Harv. L. Rev. 1323 (2019) at https:\/\/harvardlawreview.org\/2019\/02\/equal-dignity-heeding-its-call\/<\/a><\/p>\n

[5]<\/a> This use of dignity was so seminal it sparked a cottage industry of academic commentary. See generally, Lawrence H. Tribe, Equal Dignity: Speaking Its Name<\/em>, 129 Harv. L. Rev. F. 16 (2015) (\u201cJustice Kennedy\u2019s decision . . . represents the culmination of a decades-long project that has revolutionized the Court\u2019s fundamental rights jurisprudence.\u201d).<\/p>\n

[6]<\/a> \u201cThe \u2018liberty\u2019 of which the Court spoke was as much about equal dignity and respect as it was about freedom of act.\u201d Lawrence H. Tribe, Lawrence v Texas: The \u201cFundamental Right\u201d That Dare Not Speaks Its Name<\/em>, 117 Harv. L. Rev. 1893, 1930 (2004) at https:\/\/www.jstor.org\/stable\/pdf\/4093306.pdf?refreqid=excelsior%3Aa0825e4c3b12e6f13fdb0a35d603a90e<\/a><\/p>\n

[7]<\/a> Obergefell v. Hodges<\/em>, 135 S. Ct. 2584, 2597 (2015) (emphasis added).<\/p>\n

[8]<\/a> See<\/em> footnote 5, supra<\/em>.<\/p>\n

[9]<\/a> Andrew Morgan, The Patriot Act and Civil Liberties<\/em>, Juries (July 20, 2013) at https:\/\/www.jurist.org\/archives\/feature\/the-patriot-act-and-civil-liberties\/<\/a><\/p>\n

[10]<\/a> See e.g. A Timeline of Lesbian, Gay, Bisexual, and Transgender History in the United States<\/em> at https:\/\/www.gsafewi.org\/wp-content\/uploads\/US-LGBT-Timeline-UPDATED.pdf<\/a> (Adapted with permission from Out of the Past: 400 Years of Lesbian and Gay History in America (Byard, E. 1997, www.pbs.org\/outofthepast) with additions and updates from Bending the Mold: An Action Kit for Transgender Youth (NYAC & Lambda Legal); The American Gay Rights Movement: A Timeline; Just the Facts about Sexual Orientation and Youth: A Primer for Principals, Educators, and School Personnel (Just the Facts Coalition).<\/p>\n

[11]<\/a> Martin Luther King, Jr., Statement on Ending the Bus Boycott<\/em> (25 March 1965), The Martin Luther King, Jr. Research and Education Institute, Stanford University at https:\/\/kinginstitute.stanford.edu\/king-papers\/documents\/statement-ending-bus-boycott<\/a><\/p>\n

[12]<\/a> Michel Foucault, Technologies of the Self<\/em> (Lectures at University of Vermont in October 1982) available at https:\/\/foucault.info\/documents\/foucault.technologiesOfSelf.en\/<\/a><\/p>\n

[13]<\/a> \u201cTechnologies of the self, which permit individuals to effect by their own means or with the help of others a certain number of operations on their own bodies and souls, thoughts, conduct, and way of being, so as to transform I themselves in order to attain a certain state of happiness, purity, wisdom, perfection, or immortality.\u201d Id<\/em>.<\/p>\n

[14]<\/a> Foucault, see<\/em> footnote 1 supra<\/em>.<\/p>\n

[15]<\/a> See generally<\/em> Bernard Harcourt, Exposed<\/em> (2015).<\/p>\n

[16]<\/a> Exposed<\/em> at p. 216.<\/p>\n

[17]<\/sup><\/a> Arnold Davidson, The Emergence of Sexuality<\/em> (2001) at p. 9.<\/p>\n

[18]<\/a> Or rather, the expositio digitas qua expositio digitas<\/em> is not embedded in an ethic. Of course the practice can be embedded in an ethic\u2014digital identity formation can consist of sharing verse and re-Tweeting the Pope. However, one could also share Seneca quotes and watch John Sellars Youtube lectures. The point is, modes of digital exposition is not wed to ethical contents in the way of older forms of avowal (unless one considers articulation, publicity and public life, and other broad categories to constitute an ethic).<\/p>\n

[19]<\/a> See<\/em> Natasha Dow Schull, Addiction by Design<\/em> (2012). For a quicker take, see Tony Schwartz, Addicted to Distraction<\/em>, The New York Times (Nov. 29, 2015) at https:\/\/www.nytimes.com\/2015\/11\/29\/opinion\/sunday\/addicted-to-distraction.html?_r=0<\/a><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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