Tuesday, 16 April 2013
The Merriam-Webster Dictionary describes a police state as a political unit characterized by repressive governmental control of political, economic, and social life usually by an arbitrary exercise of power by police and especially secret police in place of regular operation of administrative and judicial organs of the government according to publicly known legal procedures.
This is the traditional definition of a police state. There is a 21st century type of police state which over the last two to three decades has begun to take shape in the Western World, primarily in English speaking jurisdictions,. This new version of the police state has a softer, less obviously repressive feel to it. It relies much more heavily on the state bureaucracy and is process oriented although the process often does not bear much resemblance to that of English common law. Accordingly it does not look like the thuggish police states associated with fascism, communism or Third World dictatorships. Instead it tends to grind its victims into submission through a continuing flow of process and application. It can be characterized by a senseless, disorienting and often menacing complexity.
There have been three broad justifications used by governments to create the Bureaucratic Police State. They are terrorism, gangsterism and bad social behavior.
The threat of terrorism has usually been the rational for governments in the U.K. to gut traditional civil liberties and long standing restrictions on police power. There are a potpourri of rights stripping provisions. Under the power of Section 44 of the Terrorism Act 2000 police in the U.K. can now stop and search people without the need to show that they have reasonable suspicion that an offence is being committed. The use of this power, however, is not restricted to terrorism; less than half a percent of those stopped and searched are arrested in connection with terrorism (even less are convicted). In a parallel development police can search the home of arrested (not charged) people without the need for a warrant under Section 18 of the Police and Criminal Evidence Act 1984. Under Section 110 of the Serious Organised Crime and Police Act 2005 the police have powers of arrest without warrant, which make all offences, no matter how trivial, into arrestable offences
You can see how these types of provisions play out in incidents that do not involve even a whiff of terrorism. Recently in London two police officers stopped a teenage photographer from taking pictures of an Armed Forces Day parade - and then claimed they did not need a law to detain him. After arguing his rights in a series of protracted legal debates with officers, the sixth former says he was pushed down a set of stairs and detained for breaching the peace until the parade passed.
Federal governments in the U.S. and Canada used the World Trade Centre attacks of September 11, 2002 to justify legislation which similarly assailed long standing freedoms. There are a plethora of sections in the USA Patriot Act extending surveillance powers in previously unknown ways. For example Section 215 of the Act allows the federal government to make a physician or medical insurance company release medical records to them and allows the government to access library records enabling the government to access information about books that have been checked out. Section 206 of the PATRIOT Act authorizes orders for multipoint or "roving" wiretaps for foreign intelligence investigations. A "roving" wiretap applies to an individual and allows the government to use a single wiretap order to cover any communications device that the suspect uses or may use." Section 505 permits the FBI to obtain financial records on anyone, without a court order. This includes the bank, hotels, travel agencies, hotels, pawn shops, or the Post office. Both Sections 215 and 505 bar the institution concerned from disclosing to the person in question that the government asked for the record or information.
Although the Patriot Act and related provisions were Republican Bush laws, the pattern of anti-liberties legislation has continued under President Obama. Last year he signed into law the National Defense Authorization Act for Fiscal 2012. One typical section of the Act, namely, Title X, Subtitle D, "Counter-Terrorism," affirms the president's right to detain anybody anywhere, U.S. citizens included, deemed to have "substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners. Ominously, it specifies that this may proceed "without trial, until the end of the hostilities," and can involve transfer to "any other foreign country, or any other foreign entity" - in other words, Guantanamo or worse.
Legislation, which was initially sold to the public as mechanisms to control criminal gangs, has a similarity to anti-terrorism legislation. A particularly alarming development has been the use of purportedly civil proceedings to circumvent the "beyond a reasonable doubt" standard for criminal convictions. At the head of this class is civil forfeiture. Civil forfeiture is really criminal law wearing the mask of a civil proceeding. Thusly disguised the standard for a punitive measure becomes the balance of probabilities. Arguably even the onus shifts to the target party if the law provides that the property is deemed to be used in or a product of a criminal activity until the owner shows otherwise.
Civil forfeiture quickly became a way for the police to avoid dealing with public prosecutors and they love it. In Victoria, British Columbia police officers recently went to court under the province’s Civil Forfeiture Act to ask a B.C. Supreme Court judge to forfeit the vehicles of two gentlemen who had convictions for impaired driving. Victoria police Const. Mike Russell, told The Province newspaper "That's the nice thing about civil forfeiture, it doesn't just fall into the criminal realm. You're able to put all the different things in [an application to a judge]. You can put in the police files, [details of events] every time we are called."
In addition to the complexity and costs of finding a lawyer and suing to reclaim your own property, the bounty that law enforcement collects from forfeitures is even more problematic. Forfeiture laws have often give police and prosecutors the wrong incentives and invite abuse. The problems of bad incentives are now well known to Minnesotans. In 2010 police officers assigned to the Metro Gang Strike Force (MGSF), a multi-jurisdictional agency charged by the Legislature to address gang-related crimes in the Twin Cities, were found to be stopping individuals who had no connection to gang activities and seizing money and other property regardless of any intent to file charges or whether the funds could reasonably be connected to illegal activities. As documented in their report to the Commissioner of Public Safety, a former U.S. Attorney and a retired FBI agent said:
"We’re struck by how many cases had no connection to any gang activity and could notbe reconciled with the mission of the Strike Force. The Strike Force’s mission does not support the creation of roving ‘saturation’ details that stop people for traffic violations or seize the funds of an undocumented alien who has committed no other offense. Yet this is what we found, many times over. … And the mission of the Strike Force does not authorize officers to take seized items home or purchase these items for their own personal use. But this is what happened, time and again."
The problems with asset forfeiture in Minnesota extended beyond a few rogue MGSF officers. Like other forfeiture provisions the State laws gives incentives to law enforcement to seize property based on police officers’ mere suspicion since a person need not be ever convicted of a crime for their property to be seized by the state and forfeited. It was pointed out that the very fact that Minnesota’s laws financially reward law enforcement for seizure of private property led to the MGSF scandal and other abuses.
Civil forfeiture essentially does away with other fundamental principles of British justice. The first of these is illustrated by B.C.’s grand motherly Attorney-General, Shirley Bond, who proudly claimed that civil forfeiture makes it possible to "get the bad guys twice". She is blissfully ignorant about double jeopardy which has been a principal of Anglo justice since the early part of the 14th century. A person is supposed to get punished only once for the same offence.
Civil forfeiture also eliminates the necessity of mens rea (a guilty mind) - unless houses, cars and cash can have mens rea - since the intention of an owner is irrelevant.
In fact mens rea has been taken a hit in the last couple of decades. This was noted by Harry Silverglate in Harvey Silverglade, is entitled " Three Felonies A Day: How the Feds Target the Innocent ". Because of the thousands of broad and vague laws that do not require mens rea, he estimates that the average person in the United States goes through a typical day, unaware that he or she has likely committed several federal crimes. As a result citizens from all walks of life including doctors, accountants, businessmen, political activists, and others have been the targets of federal prosecutions for even the most seemingly innocuous behavior and despite reasonably believing that they did nothing wrong, broke no laws, and harmed no one.
There is another way that the "guilty mind" has been discarded as an essential for a criminal prosecution. Mens rea has never been required for many so-called statutory offences that are found outside criminal codes. In the past these strict liability offences had relatively minor penalties. Fines often maxed out at $5,000.00 and imprisonment was rare - and never more than six months. That is no longer true. British Columbia’s Public Health Act introduced by the province’s Liberal government in 2006 is an example of provincial legislation which carries greatly enhanced fines and lengthier incarceration. Subsection 108 of the Act says that in addition to a penalty imposed under section 107 [alternative penalties], a person who commits an offence "listed in .... .(c) section 99 (3) is liable on conviction to a fine not exceeding $3,000,000 or to imprisonment for a term not exceeding 36 months, or to both". Yes, a fine of $3,000,000.00 and three years in prison. In effect many statutory offences are being escalated into criminal offences.
What is that horrendous 99(3) offence that can result in a three year prison term. It is an offence under either section 15 of Act; i.e causing a health hazard or under section 26 which is a failure to provide a designated quarantine facility. Section 15 says "A person must not willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard." Health hazard in turn means (a) a condition, a thing or an activity that (i) endangers, or is likely to endanger, public health, or (ii) interferes, or is likely to interfere, with the suppression of infectious agents or hazardous agents, or (b) a prescribed condition, thing or activity, including a prescribed condition, thing or activity that (i) is associated with injury or illness, or (ii) fails to meet a prescribed standard in relation to health, injury or illness. This is the "killer" part of the definition - a prescribed condition is one set in regulation that requires approval (usually a rubber stamp) only by the Provincial Cabinet. A prescribed condition is a bureaucrat created offence which could be virtually anything, e.g. playing overly loud music at a rock concert. In other words a relatively minor regulatory offence, which can be hatched by backroom bureaucrats, could be punished by a three million dollar fine and three years in jail.
The police have increasingly been given judicial like powers. Consider British Columbia’s recently passed Offence Act. Section 89.1 of the Act says that the justice must include, as conditions in a probation order, that the defendant do all of the following: (a) keep the peace and be of good behaviour; (b) appear before the court as and when required to do so by a justice; (c) notify the justice or a person designated by the justice (i) in advance of any change in the defendant's name or address, and (ii) promptly of any change in the defendant's employment or occupation. The amended 89.6 says that "A defendant who is bound by a probation order commits an offence if the defendant, without reasonable excuse, fails to comply with a condition in the probation order." But it is brand new section 89.7 which is most dangerous. It says "A police officer may arrest without warrant a person whom the police officer believes on reasonable and probable grounds is committing an offence under section 89.6." This gives police the ability to arrest a person without a warrant that they suspect is breaching their probation.
Thusly an individual who commits a relatively minor provincial offence can find himself effectively placed under police control.
While the police are gaining judicial like powers, bureaucrats are increasingly being given police like powers. This is essentially true of Civil Forfeiture offices like in B.C. which operate almost as a secret investigative body outside of public view. The Community Safety Act in British Columbia is creating a new provincial unit which will police so-called problem properties throughout the Province. Typically it is being given vast investigative powers. In fact it is an offence under the Act to "refuse or fail to provide information as required". Gone is another longstanding right.
In the U.S. (at the federal level) Inspectors General over two dozen federal agencies, from the Environmental Protection Agency to the Department of Veteran’s Affairs to NASA, have been authorized by Congress to seek law enforcement powers from the Attorney General without having to demonstrate any proof of need or ability.
The real evil with bureaucratic-driven policing is that it is carried out in a totally ad hoc, discretionary and out-of-the public-view manner. There is often little or no prosecutorial control. The bureaucrats pick and choose who they go after. Often the only criteria seems to be bad public relations. Asian kids driving two hundred thousand dollar cars provided to them by Mom and Dad are an inevitable target. At the same time former cabinet ministers with multiple number of speeding tickets are ignored. Petty bureaucrats with far too much individual power and free of checks and balances will INEVITABLY act in an abusive, non-judicial manner.
The UK is a world leader in establishing the 21st century style of a police state. One of its innovative devices (2001) are called Penalty Notices for Disorder or PND’s. On the surface PND’s which for adults carry fines of £50 and £80 could appear to be an enlightened alternative to a formal charge for a minor criminal offense. PNDs can be issued on the street by a police officer in uniform or at a police station by an authorised officer to any individual across England and Wales. Theoretically PNDs help police officers to deal with minor anti-social behaviour offences quickly, such as littering, wasting police time, drunk and disorderly & possession of cannabis. They also extend to the UK’s infamous Section 5 of the Public Order Act 1986; namely; "using words/conduct likely to cause fear of harassment, alarm or distress".
The notices can only be given if the person who committed the offence agrees and then they will be issued a £50 or £80 fine, depending on the offence. The incentive for the alleged offender to 'pay-up' is that no criminal conviction or admission of guilt is associated with payment of the penalty. If the offender accepts the ticket and then fails to pay, the fine will be increased and eventually a warrant will be issued.
Once a penalty notice has been issued, in accordance with Section 2 of the Criminal Justice and Police Act 2001, the recipient may elect within the 21 day suspended enforcement period from the date of issue to either pay the amount shown on the notice in full or request a court hearing. Once issued in accordance with the law, a notice may not be withdrawn or any action taken until the 21 day suspended enforcement period has expired. Just one per cent of penalty notices have been contested at court in each year since PND's were rolled out in England and Wales in 2004. This strictly low-level of contest reflects the notion that if the fine is contested that it will lead to a criminal charge.
Again a relatively minor offence can in this step by step process place an individual under the boot of a cop. Twenty-five different offences provide police with a swift financial punishment to deal with alleged misbehaviour and it is efficient in the peculiar way that the new police state measures efficiency. Issuing a penalty notice takes an officer approximately 30 minutes compared with 2 ½ hours to prepare an evidential case file for court.
The"blurring" of the lines between lawmakers, enforcers and punishers is exactly what makes a police state a police state. As John Fassenfelt, chairman of the U.K.’s Magistrates’ Association, said: "In some cases there is already a suspicion that this has created a lack of transparency and openness in the system and effectively means that those who are there to enforce the law are effectively put in the position of judges and sentencers."
The Criminal Justice and Police Act also illustrate another blurring of lines - that between serious criminal offences and minor offences that until recently did not even rank as crimes. In a progressive way a minor offence can be escalated into a serious crime.
Reducing costs and increasing efficiencies are often cited as the reasons for taking the handling of offences away from the Courts. This claim accompanied a recently announced B.C. justice ministry plan to shift ticket disputes from traffic court to an administrative tribunal. A report on justice reform "What this means for citizens is that drivers who challenge a driving offence will no longer face the cost and inconvenience of attending court," Instead of the court "the majority of traffic disputes will be resolved though an administrative justice model that will allow resolution to be completed by phone."
The big problem with good behavior orders, roadside impairment justice, PND’s, civil forfeiture and a whole host of other initiatives is that justice is increasingly being delivered by a police-bureaucrat linkage. The police avoid the checks and balances of the Courthouse and the professional prosecutor. Instead they deal directly with a government office - often an obscure government office - with which it is much easier to establish a cozy, supportive relationship.
Social policing is a rapidly developing area of criminalized human relationships. In a previous article on this blog the term "social policing" was defined as the policing of interactions between people which do not involve violence or the threat of violence or the wrongful taking of property. Examples of such interactions include bullying where violence or the threat of violence is absent and harassment where the character off the harassment is psychological rather than physical. In other words it is about the policing of behaviour labelled as anti-social or inconsiderate but which does not involve traditional criminal activity. The term could extend to the policing of opinions whether those opinions be about religion or politics or other groups provided they are expressed in a social context.
Social policing often begins with the targeting of seriously deviant behavior but gradually extends its reach. Anti-harassment measures are an example. They originally grew out of attempts to prevent stalking; i.e where one individual followed or kept watch on another individual over an extended period of time. Stalking often ended in physical violence. Harassment, however, was defined so broadly that it included any conduct that a particularly sensitive person could find annoying. The sexual harassment codes used by many universities make even mild flirting illegal - if a so-called victim chooses for whatever personal reason to make a big deal about it. While universities can not imprison the alleged culprit, they can severely disrupt the his or her life through the instrument of expulsion.
Consider this definition of harassment: "unwanted verbal, non-verbal or physical conduct with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment" Non-verbal conduct would include "looks" and "faces". The use of "dignity of a person" essentially makes the test a subjective one - is the dignity of the so-called victim violated AS PERCEIVED by the victim. Similarly "offensive environment" implies an environment perceived by the victim as offensive. The guilty party looks at the victim in a way that the sensitive victim perceives as hostile or degrading or offensive and we are away to the Courthouse.
The kinds of behaviour now identified as bullying are mostly social not physical in nature. A typical definition of bullying now includes such conduct as social exclusion and name calling and even gestures. The advocates of expanded "bullying laws" are clearly aiming at policing social relationships in ways never seen before. The City of Regina’s bylaw says "bully" means: (a) any objectionable or inappropriate comment, conduct or display by a person; (b) directed at an individual not of the same household; (c) intended to intimidate, humiliate, ridicule, or isolate; and (d) which causes or is likely to cause physical or emotional distress. Manitoba’s bill defines bullying as behaviour that "is intended to cause, or should be known to cause, fear, intimidation, humiliation, distress or other forms of harm to another person's body, feelings, self-esteem, reputation or property. Bullying thus includes behavior that "should be known to cause ... harm to another person’s .... feelings, self-esteem, reputation ..."
A Canadian Public Health Association discussion papers says "However, the social manipulation and social exclusion of victims, although not as easily detected, is equally harmful and likely more prevalent. Does social exclusion mean that Jason’s mother is engaging in bullying when she doesn’t invite Matthew to her son’s birthday party.
Manitoba’s legislation does not include any heavy penalties for bullying but serious criminalization is never very far way. For example, in Missouri the failed prosecution of a woman for an egregious internet scam resulted in the definition of the crime of 'harassment' being expanded to include "knowingly intimidating or causing emotional distress anonymously, either by phone or electronically, or causing distress to a child." At the same time the state increased the penalty for harassment from a misdemeanor to a felony which carries up to four years in prison. Four years in jail for an act of social exclusion that distresses a child?
In the United States, a proposed federal law would make it illegal to use electronic means to "coerce, intimidate, harass or cause other substantial emotional distress." It would have a maximum prison sentence of two years.
Section 5 of the U.K.’s Public Order Act makes it an offence if a person uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. Two fascinating aspects of Section 5: firstly, it specifically makes "insults" a crime and secondly, no one actually has to be distressed - it is sufficient that they would likely be distressed (if present).
The City of Regina obviously took its inspiration from Section 5 because its anti-bully bylaw says much the same thing. "Bully" means: (a) any objectionable or inappropriate comment, conduct or display by a person; (b) directed at an individual not of the same household; (c) intended to intimidate, humiliate, ridicule, or isolate; and (d) which causes or is likely to cause physical or emotional distress. An "insult" and "objectionable or inappropriate comment" are almost synonymous - if anything, an inappropriate comment can be even less offensive than an insult. Isolate has been defined as "set apart from others". Any comment directed at a single person or part of a group could be described as isolating. And like Section 5 Regina’s by-law does not require emotional distress - just the likelihood of such.
Advocates of anti-bullying legislation invariably protest that they are not trying to lock up people who make nasty comments to others. They don’t need to jail offenders. The bureaucratic police state has "weapons" at its disposal other than imprisonment. Seizing personal property as in civil forfeiture is a significant weapon. Additionally huge fines are levied against the so-called wrongdoer. A huge fine which wipes out a personal financially can often be a worse punishment than imprisonment.
The criminalization of bad social behavior (social policing) has enormously broad ramifications. It means that virtually every aspect of a person’s daily life will be subject to oversight by Authority.
The bureaucratic police state finds novel ways to "punish" people. Taking away driver’s license - in a society in which public transit is absent in many areas and in which distance between places is large - is a favorite.
Simson L. Garfinkel (in a blog, Nobody Fucks with the DMV) points out that in his state of Massachusetts, you can't renew your driver's license if you have outstanding parking tickets, unpaid moving violations or if you owe excise tax on your automobile. "Oregon has 109 different offenses that can result in the temporary suspension of a driver's license; 50 of them have nothing at all to do with driving. In Wisconsin, you can lose your driver's license if you forget to pay your library fines, don't shovel the snow off your sidewalk, or don't trim a tree that overhangs a neighbor's property."
Individuals that choose to fight rather than surrender to the bureaucratic police state often find themselves in a nightmarish situation. The resources arrayed against them are enormous. The state always resolves to win - cases are never lost until the highest level of court has rendered its decision. The outcome again for the individual who fights back is financial ruination even if he or she is the ultimate winner in Court.
Interestingly much of this authoritarian legislation is not originating from far left or far right governments but from those positioned in the middle of the road. Rather than combining the best of the Left and the best of the Right modern day Centrists seem to combine the worst of the Left - a tendency to regulate everything - with the worst of the Right - harsh law and order. Zealots of goodness.
The final frightening element that we see is a massive expansion of surveillance at all levels. The U.K., leads the way in surveillance with about 20% of the world’s population of CCTV cameras, although it has only 1% of the world’s population. It has been estimated that there are over two million CCTV cameras watching people’s every move or one for every 32 citizens.. Consequently the average Londoner being caught on camera more than 300 times every day.
If that does not do the job, the U.K’s Home Office now has a brand new surveillance tool at hand; namely, drones in the sky. Spy drones raise obvious privacy concerns because of their ability to gather information from superior vantage points; for example, by hovering outside a person’s bedroom window. Already a number of civil liberties groups have concluded that watchful eyes in the sky will inevitably be privy to intimate details concerning the private lives of everyday Britons. Drones got their first big time test monitoring crowds at the London Olympics in the summer of 2012. In a city already laden with cameras, the police were able to add their "eyes in the sky."
Location tracking has become a major tool for law enforcement and is virtually devoid of proper regulation. Accordingly police often track individuals' movements for days, weeks, and even months, frequently without a judge determining whether the surveillance is justified based upon a legitimate suspicion of criminal activity. People can be tracked in a number of different ways - through their cell phones, their vehicle license plates and even by attaching GPs devices inconspicuously to a car.
In British Columbia an "automatic licence plate recognition" program was introduced six years ago. The system was supposed to catch car thieves, people driving without licenses, etc. but the license plate recognition information as could be expected included anyone who happened to be driving past an equipped police vehicle. The Victoria City police built up an ongoing data base. They even extended it to people entering local bars. B.C.’s privacy commissioner had to tell the Victoria police that they were violating privacy legislation unless they deleted the information on a daily basis. Victoria’s police chief initially refused to comply. One suspects that even when this kind of data is supposed to be deleted, this does not necessarily happen.
George Orwell in Oceania envisioned written correspondence that was opened and read by the government before it was delivered but he did not foresee the communication technology that has developed in the last half century. People now communicate on the internet rather than writing letters so fittingly in Spring of 2012 the British government introduced the Communications Data Bill into Parliament. This legislation, if passed, would give police, intelligence agencies and HM Revenue and Customs officials access to data about web communications made by UK citizens. It would also allow the Home Secretary the blanket power to retain data on every citizen for an undefined purpose. It won’t require judicial approval - the death knell of another fundamental principle - and potentially every text message, every Facebook message, every phone call, every email from everyone in Britain would be stored on behalf of Her Majesty’s Government. If the Bill passes the Home Secretary will also be able to ask manufacturers of communications equipment to install hardware such as ‘black boxes’ on their products to make spying easier. The end result - potential for total population monitoring.
The explosion of population surveillance in the U.K is being replicated in the United States. Its Homeland Security has fitted Predator drones with domestic espionage capabilities. Performance specifications includes the following technical requirements: infra-red sensors and communications, plus either synthetic aperture radar (SAR), Ground Moving Target Indicator mode (GMTI –– tracking) or signals interception receivers. The "UAV" (unmanned aerial vehicle) is required to be "capable of tracking an adult human-sized, single moving object with sufficient accuracy to allow target designation at the specific ranges."
Drones where originally intended to be used to guard America’s political borders but they have quickly gained popularity with domestic police forces. Again the greatest benefit of drones in the eye of law enforcement officials is the cost benefit since they are much cheaper than helicopters or other aircraft and cost much less to operate per hour than do other aircraft.
Drones already create significant concerns over privacy rights. In the future the uses of these vehicles will be even more frightening enhancements. A Wired article drew attention to the technological leaps that are possible when this technology is deployed for everyday use. These drones could be equipped with LRAD (Long Range Acoustic Device) which is also known as a sound cannon. They could also be equipped with a "light based personnel immobilization device," which is a strobe-like light used to disorient fleeing criminals and stop them in their tracks. It is even proposed that non-lethal rounds, or Tasers, could be mounted to smaller drones to track down persons that Authority wants to apprehend.
Drones are likely to be a fixture of our future society. Given the ongoing protests that have shook many dictatorships (and democracies) in recent years, this technology will inevitably be an extremely useful tool for Authority worldwide. For example, sound cannons could be flown in from a remote location and used to dispel protesters, thusly avoiding any clashes with the police or army.
What about thought control? Already expressing your thoughts in nonverbal ways can get you into trouble. For example some of the anti-bullying legislation extends to gestures. Quebec’s bill states "bullying means any direct or indirect behaviour, comment, act or gesture, including through the use of social media, intended to injure, hurt, oppress, intimidate or ostracize." This definition can encompass gestures such as eye-rolling or sticking out one’s tongue. But it can get much worse since it is now possible to detect hidden intentions by observing patterns of brain activity. It will be especially justified in the context of children; that is, in identifying and isolating adults who are having paedophilic thoughts. If the technology is available, there will be inexorable pressure to apply this kind of thought analysis to all those people might have contact with children in an employment situation . And then what is next. The law and order logic suggests blanket analysis of people’s thoughts in all sorts of public situations - after all what better way to prevent bank robberies, assaults, murders, other evil acts - that flow from the original thought.
The bureaucratic police state can perhaps be seen in its most advanced state in matters dealing with children. This is not unexpected. Totalitarian reformers across the ages have seen re-educating the children as the first essential steps in creating their new order.
It is now necessary to supervise and regulate the totality of children’s social relationships. How is this done? Through the use of more fear – this time it is fear of so-called bullying. As noted above bullying has been defined so broadly that it encompasses pretty much the entirety of social interaction between children. If one child says something nasty to another child that is bullying and subject to adult interference. One child ignores another child and that too is classified as bullying and subject to more adult interference.
Legislation in Ontario in Canada and New Jersey in the U.S. has imposed enormous requirements on school administrators to monitor bullying. It basically commands school authorities to be ever watchful over playing children. Realistically this is going to be done through surveillance cameras and other such technology.
Traditionally children could escape the prying eyes of adults when they went into a school washroom but for how much longer. Three East Yorkshire schools were discovered to have cameras filming in changing rooms or toilets. It was subsequently revealed there were at least 206 schools nationally filming in those areas.
A novel extension of total surveillance occurred in a school district in Pennsylvania. It generously gave laptops to all 1,800 students at its two high school district but unfortunately the devices included a webcam that could be remotely activated. Images were taken with the webcam included anything going on in a room at home where the laptop was placed. One set of parents discovered this when their son was told off by teachers for "engaging in improper behaviour in his home" and that the evidence was an image from his webcam. The school subsequently claimed that the webcam was only intended as tracking device to prevent the loss of the laptops. They disabled the security-tracking program.
Unfortunately the new police state is often looked at favourably by the media and the initiatives described in this article often have significant public support. Take criminalization of bullying. An Angus Reid Public Opinion Poll done in 2012 in Canada revealed that 90 per cent of respondents believed that the country should consider cyber-bullying a crime. A paltry 19 per cent believed that bullying should only be a criminal offence if violence is involved. The media play a huge role in whipping up public hysteria - this was seen when a 15 year old girl committed suicide in B.C. purportedly on account of cyber-bullying. Gone was any rational discussion of the nuances of such suicides. Soon the public was frothing at the bit to jail twelve year olds who had allegedly engaged in the cyber-bullying.
I said that a new type of police state has begun to take shape. Are we there yet? Probably not. The alarming possibility is the convergence of the developments that I describe in this article. To capsulize firstly there has been a weakening or even abolition of many traditional safeguards and rights. The standard of proof reduced to balance of probabilities (or less) from beyond a reasonable doubt; innocent until proven guilty has (arguably) been replaced in some instances by guilty until the party proves innocence; mens rea is replaced by strict liability for the act, guilty mind or not; a person can be punished more than once for the same act (double jeopardy); refusal or failure to provide information as required is now an offence (self-incrimination).
Secondly, there are enhanced powers of arrest and seizure. Statutes provide expanded powers of arrest and individuals can in certain instances be locked up for months and even years without being brought to trial. Correspondingly certain laws now allow warrantless searches and seizures - even searches and seizures which can be kept secret from the target.
Thirdly the state now has enormous surveillance abilities - cameras on every street corner, drones in the sky, tracking devices, forced access to new media communications, the list goes on and on.
Finally, there is an expansion of criminalized and quasi-criminalized behavior. There are many environmental offences; there are new public health and safety offences; there is social policing with even rude or annoying interpersonal behavior being illegalized. Freedom of speech is being restricted to innocuous commentary.
The developments that are described in this article are not even. They also vary considerably from one to the other of the three Anglo jurisdictions that are reviewed. What there is, however, is a relentless expansion (and increasingly a convergence) of various types of state power. Combine the massive expansion of criminalized behavior detected through the use of omnipresent surveillance and then prosecuted by almost invisible tribunals freed of the restraints imposed by traditional rights and freedoms and what do you get. It is a bureaucratic police state that would make the world described in Kafka’s "Trial" look almost benign.
Posted by Juricana at 19:05
Tuesday, 22 January 2013
In 2011 the British Columbia provincial government became the first jurisdiction in Canada to introduce so-called administrative forfeiture. With administrative forfeiture the Office of Civil Forfeiture in British Columbia does not have to initiate legal proceedings to effect forfeiture if the amount involved is under $75,000.00. The Office can seize property without going to court simply if it has "reason to believe" it is the proceeds or an instrument of crime and even if no crime is proven or charged. If the seizure goes uncontested, the Crown gets to keep it. In most cases it is the police who do the actual seizure of goods or cash.
The administrative forfeiture provision reverses the litigation process - it is the owner who has to take the government to court to get his property back. An administrative forfeiture can be opposed by the owner of the property but if a notice of dispute is not filed within sixty days the forfeiture process is over. The reality is that the owner has to initiate the expensive legal proceedings required to defend his property.
The provincial government’s attorney general department under the egregious direction of Shirley Bond publishes a list of administrative forfeitures that have occurred throughout the province. That list includes the sum of $790 seized in Williams Lake, $770 seized in Langley, $700 seized in Victoria, $935 Canadian and $163.00 US seized in Vancouver, $495.10 seized at another Victoria location, $785 seized in Mission, $690 seized in Burnaby, $435 seized in View Royal (together with a 2003 Chevrolet), $415 seized in Powell River and so on and so on and so on.
A 1998 Subaru Legacy was seized at a second location in View Royal. Far removed from your hundred thousand dollar recent model BMW. The list does not give any details as to the alleged associated crime. It seems unlikely that the police would have had any evidence that this 14-year-old vehicle was purchased with proceeds of crime. Perhaps a small amount of drug was found in this vehicle?
The list does not specify if there were any criminal charges associated with the seizure of these small amounts of money but then with civil forfeiture there does not have to be a criminal charge or a provincial offence charge let alone a conviction. The translation of the word "administrative" into real English is "arbitrary and secretive".
What is really happening here? Are the cops seizing proceeds of crime or is this the state stealing the grocery and rental money. Likely what does happen is that the police enter a residence, find something illegal like a small quantity of marijuana or other drugs and then look for any cash that happens to be in the cookie jar on the kitchen counter. Not exactly big-time proceeds of crime. The police simply have to fill out a short form and lo and behold the cash is effectively confiscated.
While technically the owners the cash could file a dispute notice they probably will not do so very often - they are savvy to the idea that disputing confiscation will only lead to more trouble from the authorities including an actual charge and besides they do not have the skills to fight it themselves or the money to hire a lawyer to do it for them.
What we have in effect then is a system which can fine people without any type of legal process. In fact in many respects it is more akin to legalized theft than a fine since there is no set amount which is levied and the amount confiscated bears no specific relationship to any crime.
While BC might have been the first jurisdiction in Canada to introduce administrative forfeiture it is common in the United States and as can be expected abuses invariably arise. The Philadelphia’s District Attorney’s Office is particularly notorious and seizes over $6 million in asset forfeiture annually. It is said that most of these proceeds comes from seizing cash and currency. Apparently since 2010 there has been apparently over 8,300 currency forfeiture cases with the average amount of cash taken in a currency forfeiture case being $550. Some cases involved amounts less than $100 which as stated in a review belies "the myth that forfeiture mainly takes money from drug kingpins."
B.C.’s grandmotherly Shirley Bond talks about getting the bad guy twice (believe it or not, an attorney-general who does not have the slightest notion of "double jeopardy). What we have with administrative forfeiture is the abuse and the potential for the further abuse of power that you normally associate with a totalitarian state. Most people dumbly think that they don’t have to worry about their own property being confiscated because they are not bad guys. Civil forfeiture, however, can be initiated in connection with a breach of many provincial offences including regulatory offences and traffic offences. You make an illegal left hand turn and then you annoy the cop that pulls you over - you may find yourself in the market for a replacement vehicle. You breach a health regulation at the small restaurant you own and operate and you may find your till being emptied by an aggressive safety inspector.
Posted by Juricana at 21:03
Saturday, 22 December 2012
Over-criminalization is a term which has gained popularity in the U.S. in recent years. It is about there being too many crimes combined with absurdly high penalties.
The statistics in the U.S. are astounding. Between the 1920s and the early 1970s, the average incarceration rate in America was around 100 per 100,000 people with bumps up and down. It started an upward trend in the early 1970's reaching 153 in 1974. Then the law and order wave kicked in and the incarceration rate went crazy reaching 750 per 100,000 by 2006. In 2006 the U.S. housed 25% of the world’s prisoners - 1 in 100 of adult males were behind bars. Seven million Americans or 1 in every 33 persons were in prison, on parole, probation, or a related form of control by the criminal justice system.
The imprisoning of the American blacks drove up the rate - for all African American men born between 1975 and 1979, their lifetime chance of spending at least a year in prison is 1 in 4. Black men are incarcerated at a rate 7 times higher than white males (3,059 per 100,000 vs. 456 per100,000); the rate for Latino men at 1,258 per 100,000 is nearly 3 times higher than for white men. Even for white males the incarceration rate in the U.S. is three times higher than it is in Canada or the U.K.
Suddenly even American conservatives are questioning the country’s over-criminalization. Throw a few white millionaires or billionaires into the pokey and there is whole new appreciation about imprisonment. Given that there are now more than 5,000 federal crimes on the books and as many as 300,000 regulatory crimes and additionally each and every state has its own voluminous criminal code, perhaps we should be surprised that only 1 in 33 Americans is officially a crook of one kind or another.
Many of these 5000 federal offences come with serious jail time. In 1999 Abner Schoenwetter, formerly a Miami seafood importer, was accused of buying lobster tails from a long-time supplier. He choose to fight the charge. The purchase allegedly violated harvest regulations in Honduras. Among the violations: The lobsters were in plastic bags rather than cardboard boxes. Although Schoenwetter provided American prosecutors with evidence from Honduran officials that no law had been broken and the attorney general of Honduras even filed a friend-of-the-court brief stating that the cited regulations had been voided and despite having no prior record, Schoenwetter was convicted and served six years in prison.
Another famous American case concerned Krister Evertson, an Eagle Scout with no criminal record He was initially arrested by four FBI agents wearing black SWAT gear and pointing automatic rifles at him because he was unaware that obscure federal regulations required him to put a certain sticker on his otherwise lawful UPS package. After spending 21 months in an Oregon federal prison, he lives today in a ramshackle aluminum trailer sitting on the fenced-in grounds of a construction company’s equipment yard. Because he was on parole, after being released he was not even allowed to move to Alaska, where he was arrested, to live with his 80-year-old mother for whom he used to care.
The U.K has been no laggard in the over-criminalization trend. Between 1997 and 2009 almost 3600 new criminal offences were created by the Government including 1036 offences which could be punished by imprisonment. There were no less than 26 different criminal justice bills. Along with this vast aggrandizement of criminal offences principles of justice and liberty in place for hundreds of years have been thrown into the trash can. Section 44 of the Terrorism Act allows police to stop and search people without the need to show that they have reasonable suspicion an offence is being committed. Section 18 of the Police and Criminal Evidence Act permits the police to search the home of an arrested but not charged person without the need for a warrant.
Canada’s Conservative government in Ottawa has introduced 69 "crime" bills since 2006. This government has also legislated mandatory minimum sentences - three years for having as few as six pot plants. Inevitably the meanness of the minimum sentence comes to the fore.
In Canada there used to be a firewall between serious criminal offences and minor offences or regulatory offences. The Criminal Code itself distinguishes between summary type offences which have a maximum punishment of six months and indictable offences which are serious crimes and have much longer maximum possible sentences. Unlike in the United States criminal law is solely a federal jurisdiction. Historically provincial offences were limited to regulatory ones with relatively small maximum fines ( mostly in $500.00 to $5,000.00 range) and prison sentences of six months or less.
This firewall is being jumped. The evils of civil forfeiture have made their way north of the border. Thusly a speeding offence in British Columbia which has a maximum fine of $500.00 is now the basis for the forfeiture of a $100,000.00 vehicle - effectively a 200 fold increase in the penalty. The province’s civil forfeiture law requires no mens rea and a civil standard of proof.
The B.C.’s Public Health Act introduced by the Liberals in 2006 is an example of provincial legislation which carries greatly enhanced fines and lengthier incarceration. Subsection 108 of the Act says that in addition to a penalty imposed under section 107 [alternative penalties], a person who commits an offence listed in .... .(c) section 99 (3) is liable on conviction to a fine not exceeding $3,000,000 or to imprisonment for a term not exceeding 36 months, or to both. Yes a fine of $3,000,000.00 and three years in prison. Bye, bye to the six month, $5,000.00 fine limitation.
What is that horrendous 99(3) offence that can result in a three year prison term. It is an offence under either section 15 of Act; i.e causing a health hazard or under section 26 which is a failure to provide a designated quarantine facility. Section 15 says "A person must not willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard." Health hazard in turn means (a) a condition, a thing or an activity that (i) endangers, or is likely to endanger, public health, or (ii) interferes, or is likely to interfere, with the suppression of infectious agents or hazardous agents, or (b) a prescribed condition, thing or activity, including a prescribed condition, thing or activity that (i) is associated with injury or illness, or (ii) fails to meet a prescribed standard in relation to health, injury or illness. This is the "killer" part of the definition - a prescribed condition is one set in regulation that requires approval (usually a rubber stamp) only by the Provincial Cabinet. A prescribed condition is a bureaucrat created offence which could be virtually anything, eg. playing overly loud music at a rock concert. In other words a relatively minor regulatory offence, which can be hatched by backroom bureaucrats, could be punished by a three million dollar fine and three years in jail.
The so-called criminal justice system has become so pervasive that the average person commits unaware offences on a daily basis that carry both significant fines and prison sentences. Accordingly a book written by Boston lawyer, Harvey Silverglade, is entitled " Three Felonies A Day: How the Feds Target the Innocent ".The thesis of the book is that the average person in the United States goes through a typical day, unaware that he or she has likely committed several federal crimes. Silverglade estimates that a typical American now unwittingly commits three crimes each day because of the thousands of broad and vague laws. In fact as illustrated by the Schoenwetter and Evertson cases, citizens from all walks of life including doctors, accountants, businessmen, political activists, and others have been the targets of federal prosecutions for even the most seemingly innocuous behavior and despite reasonably believing that they did nothing wrong, broke no laws, and harmed no one. With the proliferation of laws and the abandonment of traditional English common law principles such as mens rea, it has become almost impossible to lead a crime free life.
Posted by Juricana at 19:40
Monday, 10 December 2012
A teen suicide is attributed to bullying by the media - often when there are a complexity of reasons- and shortly afterwards various levels of government are producing new laws and statutes to deal with issue. Regina, Saskatchewan’s anti-bullying bylaw exemplifies the bad legislation that is often borne from this media induced hysteria. Regina, of course, is not alone in passing such laws although it proudly boasted that it was the first municipality in Canada out the gate with an anti-bullying measure. Unfortunately other municipalities are now citing the Regina example.
Its anti-bullying by-law is thoroughly bad legislation. First lets look at the definition of bully. The bylaw says "bully" means: (a) any objectionable or inappropriate comment, conduct or display by a person; (b) directed at an individual not of the same household; (c) intended to intimidate, humiliate, ridicule, or isolate; and (d) which causes or is likely to cause physical or emotional distress.
Distill the reach of this law at its widest: Bully means any .... objectionable ... comment (conduct or display) ... by a person ... directed at an individual not of the same household ... intended to ... ridicule ... which ... is likely to cause ... emotional distress.
The by-law says it is illegal to bully a person in a public place. A public place includes any building to which the public is ordinarily permitted access (which would include a shopping mall, restaurant or other commercial outlet)and "any street, highway, sidewalk, lane, alley, bridge, causeway or other place, whether publicly or privately owned, that is used or intended for the passage of pedestrians or vehicles. By this definition the sidewalks leading to your front door are public places. A public place is essentially any place outside a residential unit.
It is also illegal to bully another person through written or electronic communication.
Most insults - even fairly mild ones - are offside this law. Eg. A young couple have a spat in the lineup outside a movie theatre. The young woman calls her boyfriend a "stupid jerk" - very likely "objectionable", it was undoubtedly intended to ridicule and probably it causes some emotional distress.
What about political satire? Consider a standard definition of satire: "the use of humour, irony, exaggeration, or ridicule to expose and criticize people’s stupidity or vices, particularly in the context of contemporary politics and other topical issues". Yes political satire involves ridicule; it often has an objectionable aspect; it may cause some emotional distress to its target. In Regina politically satire is probably illegal.
The by-law includes an objectionable display in its expansive definition of "bully". Consequently political protest signs which refer to a particular politician in a derogatory manner could contravene the by-law.
The by-law also bans fighting in a public place although it exempts fights that occur as part of an organized sporting event. You might think that this exemption pertains to boxing, wrestling or martial art matches but in Saskatchewan the number one concern is most likely hockey. As everyone knows fighting is endemic in hockey - there is no other sport on the face of the earth where fighting is tolerated and accepted as part of the game - unless it is some form of fighting sport itself.
The by-law also says no person can "record, photograph, or distribute any videotape, recording or photograph of any person involved in a fight". Record would include taking notes about a fight. Thusly if a person takes a picture or makes notes about a policeman assaulting a member of the public he or she runs afoul this by-law. Very handy since the Chief of Police (and police officers under him or her) is authorized to administer and enforce the provisions of the Bylaw.
There have been a number of allegations in recent years by citizens that they have been the victim of brutal beatings by officers with the Regina Police Service. What better way to prove (or disprove) the allegations than a photograph or videotape of the alleged incident?
Regina’s by-law masquerades under the ant-bullying label. In essence it illegalizes mean and insulting behaviour and is really very similar to Section 5 of the UK’s Public Order Act which specifically outlaws ‘insulting words or behaviour’.
Proponents of municipal by-laws like Regina’s claim that it is a softly used tool and that there have few people charged under it. While Regina’s by-law may not yet have been used extensively, the same can not be said of the UK Act which has been in place since 1986. It has been zealously used by police and prosecutors in a string of controversial arrests to arrest Christian street preachers, critics of Scientology, gay rights campaigners and even students making jokes. It is inevitable that when laws like this are available they will be increasingly exploited by the police as a people control instrument.
There is another thing wrong with by-laws like Regina’s. A lower level of government is essentially getting involved in criminal law - defining a new type of criminal behavior and creating penalties for this behavior. Three levels of government, local, provincial and federal are now in the act of defining criminalized behavior.
It is a spider web of laws that is being created by well meaning legislators at the federal level, in provinces and states, in towns, cities and counties. As types of social behavior once considered part of the normal ebb and flow of human interactions becomes illegalized, more and more people will bewilderingly be caught up in this web.
Posted by Juricana at 19:57
Tuesday, 30 October 2012
This article uses the term "social policing" to describe the policing of interactions between people which do not involve violence or the threat of violence or the wrongful taking of property. Examples of such interactions include bullying where violence or the threat of violence is absent and harassment where the character off the harassment is psychological rather than physical. In other words it is about the policing of behaviour labelled as antisocial but which does not involve traditional criminal activity. The term could extend to the policing of opinions whether those opinions be about religion or politics or other groups provided they are expressed in a social context. It is not used for economic discrimination, libel and slander, economic torts and other long recognized wrongs and injuries of a similar nature.
Until recently interpersonal behaviour now identified as bullying and harassment went unpoliced in Western societies. This was probably true even in traditional authoritarian societies such as one still finds in parts of Arabia or in modern authoritarian societies such as Nazi Germany. In pre-industrial societies, of course, relationships between different classes were rigidly policed and commoners were forced to show obeisance to the nobility by various gestures and postures.
Class based social policing lingered on into the 20th century in parts of the World but after the Second War had almost completely disappeared in Europe and the Americas. That hippie era in some ways represented the final stomping on social policing of class relationships.
Since the late 1980s and 1990s, however, a very different type of social policing has emerged in Western societies. It has come from two separate ideological directions. On the conservative side it was all about law and order and partly was a reaction to the free-flowing 1960s. There was a demand for zero tolerance to aberrant behaviour and a willingness to pass new laws and to fill the jails with the miscreants.
For the Left it was about protecting individuals from harms and hurts that had been previously tolerated or at least, not policed.
The last three decades has seen a remarkable growth in social policing. It has usually started with an effort to control behaviour which was within the realm of recognised crimes but which had not in the past been diligently prosecuted. For example with harassment at first it was about extreme forms of stalking and persistent aggressive physical sexual overtures. But then harassment started to be defined in broader and broader terms. The occasional wolf whistle was harassment; a dirty joke told at a workplace was harassment; now it can even include accidentally exposing a fellow worker to a Playboy magazine or giving someone a look that the recipient finds objectionable (for whatever subjective reason).
The sexual harassment codes used by many universities make even mild flirting illegal - if a so-called victim chooses for whatever personal reason to make a big deal about it. While universities can’t imprison the alleged culprit, they can severely disrupt the his or her life through the instrument of expulsion.
The kinds of behaviour now identified as bullying are mostly social not physical in nature. A typical definition of bullying now includes such conduct as social exclusion and name calling and even gestures. The advocates of expanded "bullying laws" are clearly aiming at policing social relationships in ways never seen before. A Canadian Public Health Association discussion papers says "However, the social manipulation and social exclusion of victims, although not as easily detected, is equally harmful and likely more prevalent.
In Missouri the failed prosecution of a woman for an egregious internet scam resulted in the definition of the crime of 'harassment' being expanded to include "knowingly intimidating or causing emotional distress anonymously, either by phone or electronically, or causing distress to a child." It also "increased the penalty for harassment from a misdemeanor to a felony, carrying up to four years in prison, if it’’s committed by an adult against someone 17 or younger, or if the criminal has previously been convicted of harassment." So knowingly doing something on the Internet which can cause distress to a child, say a cartoon presentation of a Grimm’s Fairy Tale, can result in a four year stay in the jail house.
The United Kingdom has been in the forefront of social policing. It has developed a whole new criminalization system. It starts with ASBOS or antisocial behavior orders which at first instance usually do not involve imprisonment or fines. Disobeying these orders however is a criminal offense punishable by up to five years in jail. Since Antisocial Behavior Orders often dealt with acts which formerly were not criminal offences,.the net consequence is the whole new set of social behavior which is in fact criminalized.
There are host of other U.K. statutory provisions which carry prison terms including the notorious Section 5 of the Public Order Act which makes it an offence to use "threatening, abusive or insulting words" or display "any writing, sign or visible representation … which is insulting" within the hearing or sight of a person "likely to be caused harassment, alarm or stress thereby." Section 5 basically makes illegal any critical comment or sign about any group, whether it is political, religious. With this hugely expansive definition it is not even necessary for the victim to actually alarmed or distressed for an offence to have occurred. The use of Section 5 is not a rarity - apparently in 2009 alone it was applied over 18,000 times.
In the U.K. virtually any offensive comment on the internet can result in a prison sentence. Teenager Matthew Woods was sentenced to 12 weeks in prison for offensive jokes on Facebook about missing Welsh five-year-old April Jones. Azhar Ahmed, 20, was given 240 hours of community service after writing "all soldiers should die and go to hell" on Facebook following the death of six British soldiers in Afghanistan. Political protesters can be prosecuted. A gay rights activist was arrested under Section 5 for protesting peacefully with five other people outside a gathering of 6,000 Islamist-fundamentalists who called for Jews, homosexuals and women who have sex outside marriage to be killed. A Christian street preacher was arrested for sermonizing same-sex relationships were a "sin."
Social policing by necessity will require special police forces with expansive resources and unlimited access to people’s internet accounts. That is why draconic legislation has been introduced almost simultaneously in the U.K., Canada and the U.S. which allows the police to have access to internet service providers virtually free of judicial control.
Social policing equals police state.
Posted by Juricana at 20:01
Monday, 29 October 2012
The central message in this blog is that we are trending in the Western World towards a more authoritarian or controlled society. I am not suggesting that there is any kind of overt conspiracy to create this new authoritarian society. It is not being directed by any particular political party or group or corporate entity or other central force. It is almost non-ideological or to the extent it is ideological, it is unrecognised as such as it is a consequence of many things coming together from different political directions - the left the right and the center. But relentless step by step by often unaware step we are heading in an authoritarian direction.
Fascists and communists in the 1930's and 1940's had a common notion. If you are going to create a whole new kind of society you start with the children. Hitler viewed the children of Germany as the building blocks for his One Thousand Year Reich. Children were more naturally teachable and could be much more easily moulded than older adults. Our much nicer contemporary authoritarians who consciously or unconsciously are working towards developing a more controlled society, are also starting with the children.
Children are being controlled in ways that they were never controlled in the past - by parents, by the school system and by the law.
How is our society controlling children? Firstly, it is using fear. Fear, of course, is always a prime psychological tool of the authoritarians. There is no better way to get people to accept authority than to inject fear in them. The fear used in connection with children is fear of harm from strangers and from paedophiles. Our children will be kidnapped, subjected to horrible assaults, murdered, etc. This fear has been broadly inculcated into parents by the media. There is a potential child rapist on every corner.
This fear of paedophiles and kidnappers has resulted in our children spending the first thirteen or fourteen years of their lives imprisoned in buildings whether it is the home or the school. They are only allowed out for the purpose of the passage from home to school and from school to home and to participate in organized recreational activities - and often for those brief periods in the outdoors they will be securely locked in a seatbelt in their parent’s vehicle or at best under watchful adult supervision.
How extreme can this "protective custody" get. Watford Council (England) recently excluded parents from two fenced-off adventure playgrounds unless they first undergo criminal record checks. Mothers and fathers are being forced to watch their children from outside perimeter fences because of fears they could be paedophiles.
Our children are no longer allowed any opportunity to walk freely unsupervised on the streets or play freely outside without supervision. Their every waking moment will be supervised by adults.
But that is not enough. It is now necessary to supervise and regulate the totality of children’s social relationships. How is this done? Through the use of more fear – this time it is fear of so-called bullying. Bullying has been defined so broadly that it encompasses pretty much the entirety of social interaction between children. If one child says something nasty to another child that is bullying and subject to adult interference. One child ignores another child and that too is classified as bullying and subject to more adult interference.
New legislation in Ontario in Canada and New Jersey in the U.S. has imposed enormous requirements on school administrators to monitor bullying. It basically commands school authorities to be ever watchful over playing children. Realistically this is going to be done through surveillance cameras and other such technology.
So it was not surprising that when a school district in Pennsylvania gave laptops to all 1,800 students at its two high school district, the devices included a webcam that could be remotely activated. Images were taken with the webcam included anything going on in a room at home where the laptop was placed. One set of parents discovered this when their son was told off by teachers for "engaging in improper behaviour in his home" and that the evidence was an image from his webcam. The school subsequently claimed that the webcam was only intended as tracking device to prevent the loss of the laptops. They disabled the security-tracking program.
Some of the interesting examples of controlling children come from United Kingdom, which is famous for CCTV’s and is a leader in social policing. It recently emerged that three East Yorkshire schools have cameras filming in changing rooms or toilets. It was subsequently revealed there were at least 206 schools nationally filming in those areas.
Parents at St John's Church of England School, in Stanmore, north-west London can spy on their children's lunch choices thanks to a new school computer system which logs everything on a pupil's tray. Children use a photo ID card when they buy their lunch. A list of the main course, side dishes and pudding they have chosen is then sent to a website, which their parents can check.
It is not only school authorities that are spying on children. Parents and students are being encouraged to report incidents of bullying as soon as they happen. This can often be done through anonymous hotlines - often to a local police detachment. Here is what one school very typically instructs: "We recognize that bullying affects a student’’s sense of safety and security, and some people may not feel comfortable reporting bullying. To help ease this anxiety, students and parents are welcome to use the Report Bullying Form below. The information provided will be forwarded to the appropriate school principal for action. You may report a bullying incident anonymously if you wish, but we do need to know where and when the incident took place, in order for the principal to respond to the situation."
There are two other "initiatives" to control children which should be mentioned. The first one arises out of concerns that the World’s children are rapidly getting fatter. A couple of Harvard academics recently suggested that severe, life-threatening obesity in children warranted protective custody. According to the good professors "State intervention may serve the best interests of many children with life-threatening obesity, comprising the only realistic way to control harmful behaviours." While the Harvard professors faced a fair measure of ridicule, in totalitarian loving England the notion that fat kids should be removed from their families has a fair measure of respectability. Dr Matt Capehorn, Clinical Manager of the National Obesity Forum, and some of his colleagues argue that child obesity in under-12s should be regarded as neglect and as a child protection issue. He says that social services should then take the necessary steps to protect obese children and if necessary remove them from that environment. Will they be sent to Youth Camps with rigorous eating and exercise regimes. Will forceful incarceration of fat adults follow?
On the other side of the political spectrum - particularly in the U.S. - are parental rights advocates. These people believe that parents should have the unbridled right to indoctrinate their kids with their own beliefs free from any contrary outside influences in the school system or elsewhere. Again we find our way back to the model of child rearing presented by Hitler Youth.
Altogether the emerging model for child rearing is not an attractive one. For our children it means that they are to be restricted in their physical freedom, regimented in their daily activities, heavily supervised in their social activities, closely monitored in their food consumption and subjected to ideological indoctrination.
Posted by Juricana at 18:53
Friday, 19 October 2012
We have always had complete freedom with our thoughts so long as we have kept them to ourselves. A person can have all sorts of nasty thoughts including all kinds of sexual daydreams, fantasies about criminal activities, thoughts about killing the boss, cravings about cruel revenge against the next-door neighbor with the yappy dog, and not be subject to prosecution. Even in authoritarian societies people have been able to maintain freedom when it comes to their thoughts so long as they didn’t foolishly verbalize them.
Is freedom of thought about to come to an end?
There is already some indication that expressing your thoughts in nonverbal ways can get you into trouble. For example some of the anti-bullying legislation extends to gestures. Quebec’s new bill states "bullying means any direct or indirect behaviour, comment, act or gesture, including through the use of social media, intended to injure, hurt, oppress, intimidate or ostracize." This definition can encompass gestures such as eye-rolling or sticking out one’s tongue.
Bullying’s first cousin is harassment. Definitions of harassment usually cover sexually suggestive looks, staring and gestures. Sometimes looks and gestures are specifically mentioned. Other times they are implicit. Look at this typical definition of harassment: "unwanted verbal, non-verbal or physical conduct with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment"
Lets distill the "broadest" reach of this definition. It would read "unwanted non-verbal conduct with the effect of violating the dignity of a person when creating an offensive environment." Unwanted non-verbal conduct? Sounds like looks and gestures.
When looks and gestures are included in harassment we are indeed in the realm of thought control because we are using them to "discover" the underlying thought. The only problem is that the guess about the underlying thought can be wrong and probably frequently is wrong. Perhaps in a traditional culture a gesture can have a highly defined meaning but that is not the case in a complex, contemporary society.
I remember when I was in Grade 5 and a teacher screamed at me "take that look of your face". She screamed at me again. Whatever look was on my face it was only a manifestation of my inner thoughts at the moment which were utter confusion.
There are human rights decisions like the Dutton Case in British Columbia where it was held that the good professor created a sexualized environment when at a meeting with a thirty plus female graduate student he dimmed the lights, served dinner and wine by candlelight, played seductive music, offered the graduate student a gift (a recording of the music) and stoked a blazing fire. There was a specific finding that there was no evidence of a physical overture. Nevertheless this so-called sexualized environment was said to constitute sexual harassment and the aggrieved party was awarded a total of $13,000 including $4,000 for injury to her dignity, feelings and self-respect, and $5,200 for counselling expenses. This decision virtually says that Dutton was guilty of sexual harassment because he had thoughts about seducing the graduate student as evidenced by the "sexualized environment" that he supposedly created.
Obviously deducing a person’s intentions because he likes candlelight and lyrical Armenian music is highly unscientific and fraught with danger. In the Dutton Case it required a particularly arrogant judicial mind. We may however soon be in a technological situation where we can be much more certain and actually determine what people are thinking.
Dr. John-Dylan Haynes and his associates in Germany have demonstrated that it is now possible to detect hidden intentions by observing patterns of brain activity. This may amount to the most sophisticated lie detection available. Participants were instructed to secretly choose between two possible tasks: either to add, or subtract, two numbers. They were then asked to hold in mind their next plan of action, their 'intention', until the relevant numbers were presented on a screen. Haynes and his colleagues were able to recognise the participants' intentions from observing their brain activity alone with a striking 70% accuracy rate, even before the participants had seen the two numbers.
Similar work has been carried out by Toronto-based Interaxon. Ariel Garten, CEO of Interaxon quickly identified a use for the technology "Lie detecting. If you showed a criminal something, say the crime scene and asked them `is that familiar?' His brainwaves would give him away." There is a device called an iBrain, created by San Diego-based NeuroVigil which fits over a person's head and endeavours to measure the unique neurological patterns connected to specific thought processes. The plan is to develop a large enough database of these brainwaves such that a computer could essentially read a person's thoughts out loud.
Once we reach the point where we can determine what people are thinking we will undoubtedly pass laws to do just that. It will be defended on the basis that it is best to apprehend someone before he or she commits a criminal act. In recent times the logic of policing always seems to win out.
It will be especially justified in the context of children; that is, in isolating adults who are having pedophilic thoughts. If the technology is available, there will be inexorable pressure to subject all those people who in an employment situation might have contact with children to this kind of thought analysis. Invariably there will be an ugly case involving say a soccer coach and a youth player and a legislator will shortly thereafter be introducing Nathan’s Law requiring all teacher’s and coaches to be checked for undesirable thoughts.
The next step will be to exert some kind of ongoing monitoring over people identified as having these bad thoughts - perhaps it will be some kind of bracelet, or restrictions on movement or restrictions on contacts. Definitely there will be prohibitions on many areas of employment.
Our make everything illegal society is already prepared to punish seductive scenarios, rude gestures, staring, etc. - when we can only guess at the underlying thought. When scientific certainty can be added to the policing, thought control can expand exponentially. Unfortunately it might turn out that bad thoughts of one sort or another are widely prevalent - perhaps universal - and a substantial portion of the population will be subject to ongoing policing. We will be monitoring each other 24/7.
Posted by Juricana at 20:54
Thursday, 20 September 2012
New laws that are named after a person are usually bad ones. They are born of a marriage of reporters out to win a Pulitzer Prize and politicians out to win an election. Consequently they are invariably poorly thought out and over-reaching in their effect.
Such are the laws that have been given life during the current anti-bullying campaign. As of September 1st 2011, the state of New Jersey in the U.S. implemented exceptionally detailed and tough anti bullying legislation. New Jersey’s anti-bullying legislation was a political response to the suicide of Tyler Clementi, a New Jersey college student who committed suicide shortly after his roommate secretly filmed him kissing another man in his dorm room. Reflecting the bipartisan nature of the anti-bullying hysteria the bill was passed 73-1, with 5 abstentions, in the Assembly, and 30-0 in the Senate. It was signed into law by the Governor Chris Christie, a hero of right-wing Republicans.
Legislation has also been a reaction to the media hysteria concerning so-called cyber bullying. Megan Meier, a 13-year-old, was allegedly harassed into suicide by a friend’s mother. Because of a lack of laws to deal with horrible tragedies as this, Congresswoman Linda Sanchez of California wrote the bill, also known as the Megan Meier Cyberbullying Prevention Act. The Act provides that "Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both."
It has been pointed out that numerous free speech situations are potentially caught by this legislation. Some of the examples are "a blogger who ridicules a politician for his or her vote". Others include the use of "hostile language in an email to a company that provided a shoddy product" and the "use of the internet for a boycott intimidating a company".
Much of the problem with anti-bullying legislation flows from horrendously broad definitions. Bullying can include not inviting a hostile classmate to a birthday party since social "exclusion" is included in most definitions. The New Jersey law defines bullying as, among other things, creating a hostile educational environment "by interfering with a student’s education or by severely or pervasively causing physical or emotional harm to the student." Quebec’s new bill states "bullying means any direct or indirect behaviour, comment, act or gesture, including through the use of social media, intended to injure, hurt, oppress, intimidate or ostracize." In other words eye-rolling and rumour-spreading are included. The Ontario law defines bullying as a "real or perceived power imbalance."
A perceived power balance is illegal - now if that isn’t perceivably Kafkaesque! The Ontario government’s website states as follows: "Students may attain or maintain power over others in the school through real or perceived differences. Some areas of difference may be size, strength, age, intelligence, economic status, social status, solidarity of peer group, religion, ethnicity, disability, need for special education, sexual orientation, family circumstances, gender, and race." In other words a kid showing off how smart he is to another kid could be engaging in an illegal act.
The New Jersey law requires that every bullying complaint be investigated within a day of the complaint being lodged. An extensive report must be filled out for each such investigation. Similar compulsory reporting provisions are contained in Ontario’s anti-bullying legislation.
The New Jersey legislation demands that all public schools adopt comprehensive anti-bullying policies, increase staff training and adhere to tight deadlines for reporting episodes. There are apparently 18 pages of required components. Each school must designate an antibullying specialist to investigate complaints; each district must, in turn, have an anti-bullying coordinator. This broadly defined bullying has almost been elevated in seriousness to pedophiliac sexual crimes.
So what kind of behaviour is usually involved in alleged bullying incidents? Dr. Bergacs, an assistant principal at a New Jersey High School, who investigates half a dozen complaints of bullying each month says "It’s gossip, innuendo, rumors — and people getting mad about it." An article (James Hill, Intentious) on the New Jersey legislation made the following apt description "In other words, petty childhood gossip and the kind of drama filled socializing that is typical of normal children and teenagers." The vast majority of cases being labeled as bullying are two quarreling children.
When legislation focuses on forcing the reporting of any and all so-called infractions, it allows children to bring a new tactic into their interpersonal battles. In typical schoolyard arguments, both participants will have contributed to the conflict but if one child is looking at a suspension for being a bully, it is only natural for him or her to accuse his or her accuser of the same thing. Soon every minor argument between students is descending into accusations of bullying and generating overwrought adult intervention and a vast amount of bureaucratic paperwork.
Is bullying lessened if kids are encouraged to consistently run to adults to resolve their disputes? Unlikely. The other kids will find new, subtler ways to ostracize them as snitches. On the other hand, adults beware. Any agent of authority in a kid’s life will quickly be given the bullying label - a 2006 Texas survey found half of all elementary teachers should be considered bullies.
Invariably the anti-bullying measures pull in the police as another whole set of children’s behavior is seriously criminalized. In New Jersey’s East Hanover district, the new partnership with Crimestoppers, a program of the Morris County sheriff’s office, directly involves law enforcement instead of resolving issues in the principals office. Crimestoppers will accept anonymous text messages, calls or tips to its Web site, then forward the information to school and local police officials. Sooner or later a six year old will be hauled away to the local police station to be questioned because he or she said something nasty to another six year old.
Ontario recently introduced legislation sets suspensions and expulsions for students caught bullying. In Quebec, even private schools can be fined for not complying with the legislation. In Ontario principals are advised to contact police in violent cases and pursue criminal charges. Although these bills include constructive measures such as counseling for victims and prevention programs for all students, they are grounded in a heavy handed punitive mentality. Unfortunately the anti-bullying campaigns carried on by the media are very effective with two-thirds of those polled in a recent Canadian survey agreeing that bullying should be punishable by law even if there is no physical violence. It has been noted that means that the majority of Canadians think that children should be arrested for meanness.
New York-based school psychologist Israel Kalman is an often solitary opponent to the current anti-bullying movement and its focus on a legalistic approach. "Anti-bullying laws can’t possibly work," he warns in an interview. "Teaching that every incident of bullying is intolerable and requiring schools to investigate each alleged act simply increases the hostility and escalates the bullying," he observes. "Let’s face it, children aren’t angels."
Legislators often speak about creating a new culture where bullying is no longer tolerated. But what kind of culture are we really creating? Is it going to be a culture where parents do not have birthday parties for their kids because they are afraid of being labeled as bullies by the parents (or the teachers) of the kids who do not get invited? Is it going to be a culture where children are constantly watched over to ensure that all their interactions are socially correct? Is it going to be a culture where children are criminalized at a young age because they give the "wrong" look to another kid? Before long there will invariably be cameras in every playground so that a nervous Big Brother or Big Sister sitting in the principal’s office can ensure that he or she is not violating the law. Even some of the most authoritarian societies that mankind has known have at least exempted young children from this kind of control.
Posted by Juricana at 19:02