Wednesday, 15 February 2017


According to Merriam-Webster, the following is one of the ways that the word “totalitarian” is defined: “of or relating to a political regime based on subordination of the individual to the state and strict control of all aspects of the life and productive capacity of the nation especially by coercive measures”.  In contemporary Western democracies totalitarian has taken on a new character - it is being distilled down to an extensive micro-management of individuals by state and corporate organizations - what has been described as a ‘smiley face fascism’ in which all interactions are regulated but almost invariably for superficially benign reasons.   To quote George Carlin “When fascism comes to America, it will not be in brown and black shirts. It will not be with jack-boots. It will be Nike sneakers and Smiley shirts …”

How and why is this happening?  I have identified four horses of modern totalitarianism.  The first is the rapid growth of offences.  The second is the decline of critically important legal rights. The third is the expansion of state and corporate surveillance. The fourth is the bigger and broader enforcement of all the offences.  Can the four horses of totalitarianism be stopped.

I am a pessimist for many reasons.  Most significantly the new authoritarianism is coming at us from too many angles.  The rush to create new offences and the concurrent attack on civil rights comes from the left, the right and the centre of the political spectrum.  Right wing governments introduce legislation overriding historical civil rights because they have a tough on crime agenda or they want to catch subversives; left wing governments create new social crimes because they want to protect so-called vulnerable people or they wish to create a “safer” environment.  Authoritarian initiatives - such as anti-bullying laws - are often the work of well intentioned people who would self identify as middle of the roaders, as ideologically centrist.  So it does not seem to matter whether the governing party is ostensibly liberal or ostensibly conservative or somewhere imbetween.

There is the unabated growth of new “offences”.  These new offences are being created by government at all levels - civic, state or provincial and federal.  Most significant the law making machine has discovered brand new areas to regulate - such as social relationships.  Many types of social interaction are now criminal or quasi-criminal. Many activities formerly considered harmless are now an offence of one type or another.

The assault on traditional rights and freedoms have also come from all points on the political spectrum. The Right led the attack in the 1970's through to the 2000's.  They were motivated by a supposed war on crime and by anti-Communism - later to be replaced by anti-Islamism.  They wanted to make it easier to convict people of crimes.  They said it was necessary to give the police vast new military like powers.  They advocated witch hunts against people engaging in various alleged conspiracies.

The toll on traditional civil liberties in the U.K., the U.S. and Canada has been huge.  In 2013 the UK hammered in the final nail in the coffin of civil rights with the passage of the Justice and Security Act which introduced so-called "secret courts" (Closed Material Procedures) into ordinary civil cases in Britain for the first time in over three hundred years.   Closed Material Procedures ( "CMPs") mean that one party is not able to take part in either part or the whole of a trial. The party will usually be either a civilian who is bringing a claim against a government agency or a civilian who is the defendant in a case. The government and its lawyers are present during the CMP but the civilian and their lawyer cannot be present, cannot see the evidence the government is relying upon (and which is said to be national security sensitive information) and cannot know the government's case on this evidence.

This particular bill does not stand alone.  Under firstly the Conservatives and then New Labour there was a savaging of legal rights in the U.K. over two decades.  That set of legal rights that were bequeathed to us by England, some of which date back to the Magna Carta, all took a beating.  Section 18 of the Police and Criminal Evidence Act 1984 allowed the police to search the home of arrested (not charged) people without the need for a warrant.   Section 110 of the Serious Organised Crime and Police Act 2005 gave the police powers to arrest without warrant, which made all offences, no matter how trivial, into arrestable offences .  The police could now collect and retain fingerprints, palm prints and DNA samples of all those arrested for a recordable offence, including those of innocents, i.e. even when the arrestee was not charged with any offence or had been acquitted of an alleged offence.  Section 23 of the Terrorism Act 2006 allowed innocents (not even charged) to be held for 14 to 28 days.  Section 132 of the Serious Organised Crime and Police Act 2005 (SOCPA) outlawed protests without prior police authorisation within a designated area of 1 km straight line from the central part of Parliament Square.   Part 2 of the Serious Crime Act 2007 (SCA) made it an offence to encourage or assist in the taking part in or organising of a demonstration not authorised under SOCPA (modified by the SCA) possibly further criminalizing peaceful opposition to the government. 

The police also used Section 14 of the Public Order Act 1986 to move away photographers and journalists from protests.   In the Serious Crime Act 2007, the Home Office introduced 'serious crime prevention orders' (SCPO) targeted at those whom police believe are likely to commit violence, i.e. including those who have not yet have committed an offence - and may never commit any.  With the Mental Health Bill, ministers also attempted to allow enforced detention of people who were mentally ill, even if they have not committed any crime.  Control orders and even more restrictive special bail surety conditions forced persons to live in what amounted to being under quarantine.

The legal definition of terrorism, specified in section 1 of the Terrorism Act 2000 (amended by the Terrorism Act 2006) is very broad.   Section 58 (collection of information) of the Terrorism Act 2000 allows prosecution for simple possession of an item likely to be useful to terrorists, and carries a sentence of up to 10 years. The indelible record left by a long-forgotten internet search is an sufficient for a conviction. Section 76 of the Counter Terrorism Act 2008 extended section 58 further; in particular it criminalized taking or publishing a photograph of a police officer, which is of a kind likely to be useful to a terrorist collection of information.   Saying or wearing the wrong words could get you arrested. The Terrorism Act 2006 introduced new offences of encouragement of terrorism and preparation of terrorist acts. These are so broad that they constitute an incursion on free speech.
There was a full scale assault on civil liberties when New Labour was in power. 

Some of the most egregious initiatives were scaled back under the Coalition (Conservative/Liberal) government.  Political opponents to the authoritarian legislation has generally come from the fringes of the main political parties in the U.K.  They are outliers like UK Conservative MP, David Davies who resigned his parliamentary seat in 2009 to specifically fight a by election on the issue of erosion of civil liberties. He produced a report which identified 50 measures since 1998 that had eroded civil liberties. Davies commented: "We cannot actually trust politicians or the process of politics to preserve liberties. Our liberties must not go unprotected in the way they have for the last 10 years." 

Unfortunately when the Conservatives replaced Labour the push back against the erosion of civil liberties quickly petered out.  When she was Home Secretary Theresa May, was a busy beaver pushing dangerous new initiatives to damage civil liberties.  As noted by the Conservatives for Liberty:  "The highly overrated Home Secretary and (worryingly) possible future Conservative leadership candidate, Theresa May, is a bigger threat to liberty than any Islamist. Her time as Home Secretary has been one of fear mongering and ever increasing authoritarianism.  In order to gain support for draconian measures, she has made cynical and hysterical claims such as the assertion that the terror threat in the UK is “greater than at any time before or after 9/11”. Statements such as these are designed to lay the groundwork for the expansion of state powers."

The “(worryingly) possible future Conservative leadership candidate” is now prime minister!

In Canada the recently demised Conservative government introduced their own anti-rights legislation with Bill C-51.  Bill C-51 was a compendium of many of the rights limiting features of the UK legislation described earlier.  It contained provisions that went further than the U.K.’s Terrorism Act 2006 in limiting free speech.  It authorized the intelligence agency to engage in illegal acts against allegedly sbversive groups.  Activities that undermine security was said to include interference with the capability of the Government of Canada in relation to intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada.  This latter provision could be used against economic boycotts whether such are directed at a foreign country or a local corporate giant.

The United States witnessed a huge erosion of civil rights under the Bush regime.  Soon after the September 11 terrorist attacks, President Bush issued an executive order that authorized the infamous National Security Agency (NSA) warrantless wiretapping program. This secret eavesdropping program allowed the surveillance of certain telephone calls placed between a party in the United States and a party in a foreign country without obtaining a warrant through the Foreign Intelligence Surveillance Court.   In the years after 9/11, the U.S. government illegally kidnapped, detained and tortured numerous prisoners.  The USA Patriot Act severely limited the constitutional rights of immigrants and US citizens.  It permitted non-citizens to be jailed based on mere suspicion without charges and detained indefinitely. It broadened the definition of activities considered “deportable offenses,” including defining soliciting funds for an organization that the government labels as terrorist as “engaging in terrorist activity”. The  Patriot Act also subjected lawful advocacy groups to surveillance, wiretapping, harassment, and criminal action for legal political advocacy, expanded the ability of law enforcement to conduct secret searches and engage in phone and internet surveillance, and gave law enforcement access to personal medical and financial records.  The Military Commissions Act gave the president absolute power to decide who was an enemy of the country and to imprison people indefinitely without charging them with a crime.  It removed the Constitutional due process right of habeas corpus for persons the president designates as unlawful enemy combatants  and allowed our government to hold hundreds of prisoners for multiple number of years without ever being formally charged and tried.

In south-eastern United States evangelists are dominant in the Republican Party and the Republican Party are dominant in government.  States like Louisiana and Florida are prone to passing draconic legislation imposing long sentences for minor drug offenses.  Under Louisiana law, a second pot possession conviction is classified as a felony offense, punishable by up to five years in prison. Three-time offenders face up to 20 years in prison. 

There are currently over sixty thousand individuals listed on Florida’s sex offender registry! They include child molesters alongside sexting teens. They include violent rapists alongside the couple who had sex on the beach. They represent dots on a map and names on a list, for life, irrespective of the seriousness of their crimes, how long they have lived offense free in the community or the level of risk they presently represent.  In Florida, it's legal to lock someone up indefinitely for a crime they haven't yet committed. The Miami-Dade ordinance has received national attention for effectively forcing sex offenders into homelessness with over 70 offenders living underneath the Julia Tuttle Causeway Bridge Sex offenders are treated uniquely under state and federal law as the only offenders whose punishment does not end once they have completed their court-imposed sentence.  For many, the punishments they suffer after finishing their sentences are much harsher than those they received from a judge.

There was a slight pull back in the U.S, during the Obama presidency but the new Trump regime are promising a reinvigoration of the Bush assault on civil liberties.

Starting in the 1990's the attack on civil liberties from the Right was joined by the Left.   The Left brought forward a strange new version of totalitarianism most dramatically characterized by anti-harassment policies and speech codes at universities.  In some ways the Right has now been eclipsed by the Left.

While the Right are advocating virtually unlimited mass surveillance to locate subversives the Left are doing their part in the march to totalitarianism with one “social good” campaign“ after another.  There is a creeping nature to social good campaigns - for example, anti-stalking became anti-harassing became anti-street harassing became anti-sexual harassment, became anti-workplace harassment became anti-bullying.  In other words the realm of punishable behaviour gets ever larger. For example New Jersey’s law against general harassment prohibits communicating with another person using offensively coarse language and “engaging in a course of conduct meant to seriously annoy the person”. 

Anti-bullying campaigns have an almost motherhood character.  Often the starting point has been a suicide.  The suicide was invariably attributed to bullying although a close look at the facts of individual cases show that there are multiple causes.  It didn’t matter - bullying became a cause de celebre and  every municipality, every state and every province were rushing to bring in anti-bullying legislation.  It was the rare politician who could stand up against grieving parents immortalizing their child with a new law named after him or her.  Saskatoon, Saskatchewan brought forth a so-called anti-bullying bylaw which in many way epitomizes the extent to which sincere people in government are prepared to regulate ordinary person-to-person relationship.   Included in the definition of bullying was “gossiping or rumour mongering” which, of course, make up a significant portion of human discourse.

University students are not fighting the new unfreedom.  Instead they are in the vanguard of those very people pushing to regulate social behaviour at a micro level.   The campus social justice warriors are shouting down speakers they don’t like, advocating the expulsion of fellow students for thought crimes, promoting frightening new behaviour controlling notions - eg.  micro-aggression, triggers, etc. 

Even though conduct is not fully criminalized it is tagged as improper or inappropriate and invariably some kind of punishment is applied - in the university it is usually expulsion.  Or for Amtrak it is being kicked or forbidden to ride on one of their trains.  Amtrak told  its employees (and customers) that passengers exhibiting various behaviours "should immediately be reported to trained law enforcement personnel." It detailed a long list of behaviours which were deemed to be suspicious including “unusual nervousness of traveller, unusual calmness or straight ahead stare, looking around while making telephone calls, position among passengers disembarking (ahead of, or lagging behind passengers), carrying little or no luggage, purchase of tickets in cash and purchase of tickets immediately prior to boarding.”  With these kind of indicia everyone (mathematically) must be a suspect.

The internet has provided a public platform for nasty comments which were formerly restricted to private conversations in the locker room or the barroom.  You can just feel the desire among respectable people to do something about this type of speech.  Recently Bob Paulson, the reform oriented head of the RCMP, said “think everyone would agree, a more sort of caustic tone to the political discourse that seems to attract and agitate and radicalize people of all persuasions, particularly those who know hardly anything about it, to engage.” ... “And that represents a concern for us. And I think everybody’s concerned about that including the Service (Canadian Security Intelligence Service, or CSIS) and us and other police forces. And we are doing everything we can to get our heads around it.”

There is an implicit suggestion in these comments that authority must do something about the “caustic tone to political discourse” because it attracts and agitates and radicalizes people of all persuasions, OR cutting to the root of the proposition, speech must be controlled because otherwise it causes people to act bad.  This has always been the core reason that totalitarian regimes advance to justify repression of free speech.

The new totalitarianism whether it originates from the Left or the Right is usually politically popular.  Poll after poll show support for legislative proposals that further erode historic legal rights. According to a Pew research centre from June, 2013 an astonishing 56% of Americans had no problem with the National Security Agency’s (NSA) program tracking the telephone records of millions of Americans as an acceptable way for the government to investigate terrorism. Republicans are especially supportive of mass surveillance - 75% of Republicans said it was acceptable for the NSA to investigate suspected terrorists by listening in on phone calls and reading emails without court approval but Democrats also viewed the NSA’s phone surveillance as acceptable by 64% to 34%.

In Canada Bill C-51 attracted criticism from commentators from the right, centre and left but initially was very popular with the public.   According to an early survey of 1,509 Canadians conducted by the Angus Reid Institute after the introduction of the legislation more than four in five (82 per cent) of Canadians backed the new legislation to expand the powers of intelligence agencies and police. Sixty-four per cent of respondents, believed there was a “serious threat” of terrorism in Canada.  Far from seeing it as too sweeping, 36 per cent said it did not go far enough while less than one in five (19 per cent) worried that it went too far, compromising freedoms and privacy.

The push to criminalize so-called bullying has also been politically popular.  An Angus Reid online survey of 1,006 Canadian adults carried out in February, 2012 found that two-thirds of respondents thought bullying should be considered a crime even if no physical violence was involved.  Only six per cent of respondents didn't think it was necessary to criminalize bullying.  There was overwhelming support for legislation specifically targeting cyber-bullying with ninety per cent of those surveyed said it should be illegal to use electronic means to "coerce, intimidate, harass or cause other substantial emotional distress."  Support for anti-bullying legislation was especially high in Quebec, as well as among women and people over the age of 55.

Mario Canseco, vice-president of Angus Reid Public Opinion, told CTVNews "We were a bit surprised by the high level of support for cyber-bullying laws.  It's very hard to get 90 per cent of Canadians to agree on anything."

Most of the survey participants said bullying was a serious problem in Canada's elementary, middle and high schools. The majority felt that bullying gets more intense and dangerous as students get older.  More than half said that bullying continues later in life, both at work and at home.  "I think this survey shows Canadians are ready to accept (bullying) as a serious crime," Canseco said.

Although the anti-bullying campaign has now somewhat faded it has left behind a whole new set of intrusive legislation.  Characteristically the most draconic Canadian provincial laws on bullying originated in Nova Scotia under an NDP government and in Alberta under a Conservative government.

The Conservatives in Canada were replaced by Liberals.  The Liberals had mildly criticized Bill C-51 but in the end had voted for it.  They still have not introduced any amendments (despite being told that the security forces are actively using their “right to sabotage”).  Eventually it might mean that the worst anti-rights elements of the Conservative legislation will be tracked back slightly - but will the Liberals on the other hand bring in a whole new batch of social correctness legislation?  Will they introduce anti-blasphemy laws in the context of fighting Islamophobia.  This is certainly suggested by the wording of a motion before the House of Commons which “condemns” Islamophobia.

Along with the unrelenting expansion of illegality (and the concomitant weakening of legal rights), there has also been in all the Western democracies a big expansion in surveillance - through new technologies, through "better coordination" between government departments, through "information sharing" arrangements with foreign governments.   State and corporate surveillance is driven by ever increasing computer power.  Every use of the internet becomes part of big data - you know how closely you are being tracked when last weeks searches create this weeks ads on your smart phone, tablet or computer.

In the paper era the state had in aggregate a massive amount of information about its citizenry but it could not make very good use of it.  Computerization has changed all that.  When something is possible, it will happen - the police will use its access to the information record just because it is such a powerful tool to keep tabs on everyone.  It doesn’t matter if it is legal or not. It does not matter whether the courts uphold privacy and try to restrict access to the information record.  The reality is that a large number of police and bureaucrats will be able to quickly access detailed profiles of every individual including his or her exact location. 
Finally there are new ways to punish - such as civil forfeiture, huge fines, preventative detention, expulsion from schools and universities and others. Terrorism has not been the only excuse.  Civil forfeiture is justified as a necessity to fight gangs.  The expanded policing of social relationships is justified as needed to protect vulnerable individuals.  The slippery slope analogy may not be the best.  It is more like the death of personal freedom by a thousand cuts. 

There is also a new method to sanction people even before they do anything criminal - which as stated above can be a whole lot of things.  This new method is called pre-policing.  It is particularly popular in the U.K. where the Prevent program gives the state power to interfere in people’s life BEFORE they have done anything criminal. 

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