BLOG 3: Surveillance, Dark Sousveillance, & the Law

By: Rihan Issa, Executive Articles Editor, Vol. 27

Part 1 of the series discussed the argument in Simone Browne’s book, Dark Matters. She highlighted the importance of racializing surveillance as an important conceptual understanding of the way surveillance has been used to order society along racial lines. She argues that this framing will allow us to see the “dark matter” in surveillance tools and technology, thereby offering a new perspective on how we perceive surveillance as it exists in the present. In part 2, I applied Browne’s framing to the counterterrorism prevention program, Countering Violent Extremism (“CVE”). In the third and final part, I will conclude with an update on where CVE is now and some parting thoughts on where we go from here.

CVE was a program of the Obama administration. The Trump administration continued the same program but rebranded it as the “Targeted Violence and Terrorism Prevention” program (TVTP). Although Biden promised to end the targeting of Arab and Muslims through this prevention program, he created a new program called the “Center for Prevention Programs and Partnerships” (CP3).[i] Biden touts this program as being different from its predecessors.[ii] The program’s “emphasis will be on identifying behavioral signs that someone may be on a path toward violence. […] Working through regional coordination centers, CP3 will share intelligence, training, and resources with partner organizations such as faith groups, youth programs, schools, and local police departments.”[iii] As with its predecessor, CP3 relies on deputizing community stakeholders to surveil community members for “radicalization.” The perceived “radical” behavior is being determined by “prototypical whiteness.”[iv]  Prototypical whiteness is the presumption of white cultural superiority as the foundation from which to measure what does and does not belong.[v]

CVE, TTVP, CP3, and all of its future iterations of terrorism prevention programs will never actually address the underlying issues they seek to address. The inherent bias in the design of the programs, as well as those involved in their inception and implementation, suggests an ulterior motive. The underlying root causes of violence are not adequately being investigated and prevented. In fact, violence is a symptom of systemic oppression. These systems that make up the military and prison industrial complexes lead to a natural outcome of violence. Unless the United States is prepared to address these root causes, violence will not cease. The government capitalizes on real fear and produces a false dichotomy: the only way to address violence is by increasing surveillance.

Nonetheless, throughout her book, Simone Browne reminds us about the importance of dark sousveillance. Each instance of surveillance practice is inevitably met with an act of resistance and resilience. Browne does this to establish the important fact that those being watched are not powerless, rather they engage in creative avenues to take their power back. She describes the process of achieving this: (1) there must be an understanding that surveillance is a mechanism by which society is ordered racially, (2) from this lens one should understand the tools and practices, and then (3) use those same tools to find the “dark matter” to facilitate freedom.[vi] In the examples she illustrates in her book, Browne illustrates how tools of social control were “appropriated, co-opted, repurposed, and challenged in order to facilitate survival and escape.”[vii] She continues on to say that “dark sousveillance charts possibilities and coordinates modes of responding to, challenging, and confronting a surveillance that was almost all-encompassing.”[viii]  In line with Browne’s emphasis on acknowledging the power of those being watched, I am highlighting one example of that.

Assia Boundaoui is the director of the film “The Feeling of Being Watched.” The film is a riveting story of Boundaoui’s efforts to understand the extent of the surveillance conducted by the FBI following the September 11th attacks. In the film, Boundaoui submits a Freedom of Information Act (“FOIA”) request to the FBI to learn what information the FBI captured of her community. She was ultimately successful in getting some of the information. This year, Boundaoui has announced the launch of “The Inverse Surveillance Project.” The project “will result in a site-specific installation that takes the form of a labyrinth and the creation of a community counter archive, repurposing thousands of records collected during a decade of FBI surveillance, as a site of collective disruption and a reclaiming of narrative.” The project is in the process of bringing the vision to life but is just one example of co-opting the impact of surveillance and manipulating it to empower, rather disempower, the communities it targets.

As it pertains to the legal community, framing our understanding of surveillance through a racial lens not only allows us to see the intersection of these issues but also serves as an opportunity to incorporate this history into our regular advocacy, in and outside the courtroom. It is important to acknowledge this country’s racial history in legal arguments outside of just the Equal Protection or Due Process arguments. This should include an open discussion of the systematic issues faced by clients, both historic and present-day. Acknowledge that the legal system has perpetuated oppression, and then demand that we look at the systemic discrimination facing our marginalized clients in the present. For instance, this reality should be incorporated into the fact sections of a complaint or legal memo. It could also inform the types of cases that are brought on behalf of clients. By failing to acknowledge this history, we are being complicit in the role that the legal system, and in particular courts, play in further entrenching systemic oppression. It is our responsibility to learn this history, understand the framing, and bring it to life in the legal profession.

My hope with this blog series is to highlight the importance of our continued exploration of surveillance and the way it exists in our lives. #Because We’ve Read isa radical international book club challenging understandings of the status quo & mobilizing communities globally.” The online platform curates a reading guide on varied topics. Relevant here is the guide on surveillance. If you are interested in learning more about surveillance done by the government and private companies, follow this guide. In addition, #Because We’ve Read, has created a digital safety checklist that will help keep us safe as our reliance on the digital space continues to increase.

This blog contains opinion pieces by members of the Journal’s editorial staff on race & law issues. The views expressed in an individual post represent the views of the post’s author only.

[i] DHS Creates New Center for Prevention Programs and Partnerships and Additional Efforts to Comprehensively Combat Domestic Violent Extremism, U.S. Dept of Homeland Security (May 11, 2021)

[ii] Odette Yousef, Biden Team Promises New Approach to Extremism, but Critics See Old Patterns, NPR (Jan. 27, 2022)

[iii] Id.

[iv] Simone Browne, Dark Matters: On the Surveillance of Blackness 110 (2015).

[v] Id.

[vi] Id. at 21.

[vii] Id.

[viii] Id.