The Solution to Indifference in the Surveillance Era

-- By JoeyMampilly - 26 Mar 2025

Indifference

A contemporary shibboleth is that Americans are polarized, and America’s politics ever-more partisan. Obscured by this discourse is that in the last four elections, each one arguably more partisan than the last, more than 80 million people did not vote. Also obscured is that today’s polarization is precedented; there were 3 major political assassinations in the 1960s, and none today. Yet in 1968, when voters might have weighed in on weightier social reforms than are at issue today, some 30 million chose not to. And voter turnout was systematically high in the 1880s, when American policymaking was “frozen” and voters’ choices comparatively less weighty. Some therefore doubt that Americans today are polarized at all.

This doubt is justified; indifference, not passion, shapes politics. Someone looking to make change must therefore look to where power is. In the context of rising digital surveillance, protecting privacy depends less on mass movement than on influencing power.

Indifference is the dominant response to massive social change. Perhaps this indifference comes from perceptions of powerlessness: winning the Powerball may be more likely than casting a tie-breaking vote. And feelings of powerlessness may make political knowledge seem irrelevant. 73% of Americans do not understand what the Cold War was about, and in election years most citizens cannot identify any candidates in their congressional districts. On top of this, when it comes to major social phenomena, people have short memories. The current President once tried to stage a violent coup. Yet in 2024, inflation and border security were top of mind.

Another explanation for indifference is that humans are wired for different problems than those presented by politics in an information-age society where one congressional district hosts more people than the greatest Bronze-age empires. Our current brains finished evolving at least 35,000 years ago, and that wiring made us really good at working with the 100 people in our nomadic band; it did not prime us to care about the relationship between Rwandan interference in Congo’s civil wars and the effect that may have on the devices we spend most of our time using. Faraway social forces feel less important than immediate, personal ones. Keeping our job is something most of us can do well, and focusing on that will have a more immediate effect on our lives than considering the distant federal capital’s Rwanda policy. George Orwell suggested that one way to keep people tame is to encourage them to focus on everyday things, “first for children, then for grandchildren, over thirty unbroken years.”

It is in this context that visionaries such as Moglen warn, perhaps helplessly, that the supercomputer surveillance devices in our pockets are more dangerous than we realize. Unfortunately, the possibility that life in America might one day approximate the totalitarian villainies of Eurasia is probably not that terrifying for people who do not know why the Cold War happened. It is a vague fear, dimmer than the fear that someone might push you into the subway. The problem, then, is that people do not care much about things they do not believe they can control. They are bombarded with more wrongs than they can address. Everyone at Columbia Law School has surely seen a headline in their Instagram feed noting that China engaged in a massive forced labor campaign in Xinjiang, and that Apple runs factories in Xinjiang that likely used that forced labor. I confess, on everyone else’s behalf, that I felt bad for the Uyghurs whose slave labor built my next-gen camera lens; I then scrolled farther down the feed on my iPhone and let that guilt fade away.

Solution

The solution is not to expect better of us reformed nomads. The solution is to focus where power is. Take jurisprudence surrounding supercomputer surveillance devices as an example. Carpenter v. U.S. seems arbitrary when compared to U.S. v. Miller. Somehow the “voluntary” conveyance of intimate financial information to banks constitutes waiver of Fourth Amendment protections, even when participating in society without a bank account is extremely difficult. Yet the “voluntary” conveyance of location information to a cell phone provider is not waiver, because phones are “such a pervasive and insistent part of daily life.” Inconsistency at America’s highest court is not new, and maybe not even blameworthy. Law, like any human enterprise, is not going to be mathematically consistent. And law will be bound up in past decisions that its path-dependent decision-making processes cannot outrun. There is a lesson in the inconsistency. The Supreme Court created at least some formal protection against warrantless access to cell phones’ encyclopedic location records. All it took was convincing 5 justices to intervene. Privacy wins in Carpenter did not depend on mass movements. Those lawyers mobilized neither the clerk at my bodega nor the millions of upper-middle class professionals who follow politics but do nothing to change it.

What politicians understood back in the 1880s, and have since forgotten, is that getting people to vote requires machinery, not ideology. For someone looking to change the way things work, their attention should turn to structures instead of people. Sometimes changing structures involves mass mobilization, but only in an ancillary way. The execution of a policy will almost always be shaped by a small number of people. That an inherently conservative institution, 9 life-tenured justices confirmed by senators who are elected every six years, ended up being the face of some useful digital reform, shows that nothing is predetermined. History depends as much on contingencies as it does on grand social forces. One looking to make change must simply focus on the right places.

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