Time to talk about time
In this post, Michael Birnhack reflects on his piece ‘The Temporal Dimension of Surveillance’, which appeared in the 21(4) issue of Surveillance & Society.
Tel Aviv, March 2020. It was the first COVID lockdown. I was exercising on our building’s rooftop, when my friend Haim Ravia called. Haim is a prominent lawyer and a privacy expert. We discussed recent developments: the government recruited the internal security service, aka Shin Bet, to apply its technologies to conduct contact tracing — to identify who was in close proximity to a person with the virus. Recruiting a security body for handling a civil crisis was quite dramatic. We learned that the Shin Bet had such a technology at its disposal, unceremonially known as “the tool”, for tracking cellular devices, namely, conducting surveillance by collecting location data.
We founded an NGO, “Privacy Israel”. Many Knesset discussions and public debates followed, and over the next 18 months, three petitions reached the Israeli Supreme Court, arguing that the use of the tool was unconstitutional, due to the violation of privacy, insufficient authorization and unproportional measures.
I read the Courts’ opinions numerous times, wrote and spoke about them. But then, in one more of those readings, something caught my eye: time. The cases had temporality all over them. How didn’t I see this earlier? The judicial opinions spoke about emergency and urgency, about the present and the future. I reread the cases systematically. It became clear that something was going on there. In my article, ‘The Temporal Dimension of Surveillance’, recently published in the 21(4) issue of Surveillance & Society, I delve into this issue.
There was the physical fact of time, but the Court referred to various time elements, which I later called time vectors. The opinions mentioned the pace of the spread of the virus, the timeframe of the “tool”, the government’s response, legal time, and later, vaccinations. But it was not the same timeframe. Each vector was framed a bit differently. How could that be? The clock ticks at the same pace for everything. And yet, there was a differential treatment of time. This was a construction of time. The way the Court spoke about time enabled it to attribute “urgency” to some elements and downplay others. The differential framing enabled the Court to legitimize surveillance or limit it.
It was time to revert to the literature. I found scant references to temporality in surveillance literature, and these references too, discussed mostly the attributes of a surveillance activity: how long was the camera operating, for how long was the data retained. The next theoretical move was to connect the relevant building blocks: surveillance studies, sociological and philosophical discussions about the construction of time, and a legal analysis (I am a lawyer, by the way). The COVID decisions served as the case study, applying discourse analysis.
The result is the article — drawing attention to temporality in surveillance and to the manner in which we think and talk about it. When decision-makers discuss time, they not only talk — they do. They construct time, and this construction may legitimize or delegitimize surveillance.
