THE NEW POLICE STATE

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 21^st 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 21^st 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.