Voyeuristic Surveillance: Watching Black Bodies Through the Varifocal Lens of the State

Are Intelligence Agencies Spending a Disproportionate Amount of Time Surveilling Black Americans?

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Last year did not end as usual for the primary school children quartered in Parnell Square East, Dublin. At the end of November—shortly after World Children’s Day—one of the most egregious of nightmares took shape. Three children and two adults were stabbed near Gaelscoil Choláiste Mhuire.

It is worth mentioning here that a tragedy also took place at the Apalachee High School in the United States, where a 14-year-old opened fire on the student body, killing not only two educators, but also two students. Both incidents, in my own view, have striking parallels. For starters, innocent civilians were massacred. Second, the killings sent shock waves through each State, setting in to motion a ‘panoptical model’ of surveillance across jurisdictional boundaries to counter perceived threats to national security.

With knife stabbings becoming cyclic across the United Kingdom and the Republic of Ireland—and gun violence becoming endemic within the United States—one would think any surveillance of the civilian population would undoubtedly ‘zoom in’ on those who pose a legitimate threat to national security.

Yet, evidence seems to suggest both of these catastrophic events have given imprimatur to intelligence agencies—in each nation—to pay homage to their colonial pasts, reawakening an old fetishistic tradition: the voyeuristic surveillance of Black Americans. Here, ‘voyeuristic surveillance’ is used to describe the act of intelligence personnel giving an unreasonable amount of time to surveilling and observing the private and mundane activities of Black bodies.

In Black Lives Under Surveillance, Brandi Thompson Summers points out that “blackness was shaped and produced through surveillance practices during slavery.” Michael M. Topp further makes reference to the implementation of Black Codes during the 18^th century that restricted the freedom of Blacks. In Dark Matters: On the Surveillance of Blackness, Simone Browne provides an intriguing example of this restriction on freedom, stating that Black and indigenous enslaved people were impelled to carry candle lanterns after sunset, if they were not accompanied by a White person.

It’s important to note that this ‘enforcing code’ on Black bodies was not only advantageous to the Irish, but it also served as their admission card into American dominant society. This idea seems to converge with Topp’s understanding that non-Blacks had a duty to police Black bodies.

Regrettably, acts of intrusive surveillance did not stop there. In fact, this throwing of light onto Black bodies reincarnated into the 19^th century. Indeed, Claudia Garcia-Rojas describes how New York City police officers would flash their cruiser roof lights onto housing projects during the night. This caused what Josh Scannell calls the “violent illumination by way of artificial light.” Today, intelligence agencies are resorting to different approaches to vicariously surveil the online activities of Black bodies, such as the deployment of cyberhackers. This is what I call ‘peeping through the internet curtains.’

The observations above raise three important questions. First, what is privacy? Second, is the voyeuristic surveillance of Black Americans an invasion of privacy? Third, if so, does the practice infringe international human rights standards?

In Privacy Rights: Moral and Legal Foundations, Richard B. Parker states privacy is “control over when and by whom the various parts of us can be sensed by others.” Parker describes “parts of us” as our bodies, our voices, and the products of our bodies.

In 2018, Black American activists disclosed to reporters that intelligence agencies were monitoring them at their homes. While some intelligence agencies believe their surveillance of Black Americans can be justified on “national security” grounds, it’s important to state that any surveillance of a civilian’s home may amount to an invasion of one’s privacy. Indeed, surveillance of one’s home has been viewed as an interference because it intrudes, as stated by Adam D. Moore, “upon the solitude of another in a highly offensive manner.” As one can see, the voyeuristic surveillance of Black Americans is an invasion of privacy.

Equally relevant to the issue is whether voyeuristic surveillance infringes international human rights standards. Before answering this question, it must be emphasised that a State can only intrude upon one’s privacy if it’s for a legitimate security reason. When governments fail to notify people they are being surveilled abroad, the activity is likely to breach international human rights standards.

For instance, the CERD acknowledged that An Garda Síochána racially profiled people of African descent and called on the State to introduce legislation to prohibit the practice in the region. An Garda Síochána’s conduct is clearly at odds with Article 4 (c) of ICERD, as State Parties shall not permit public authorities to promote racial discrimination.

It is worth mentioning here that the United States has arbitrary interfered with the “privacy, family, home [and] correspondence,” of its citizens abroad. Such actions violate Article 17 of the ICCPR. Indeed, the HRC addressed its extraterritorial scope of surveillance, calling on it “to ensure that its surveillance activities, both within and outside the United States, conform to its obligations under the Covenant.”

Despite these recommendations, the United States and the Republic of Ireland’s arbitrary surveillance of Blacks have continued. Even so, the Strategic Intelligence Assessment and Data on Domestic Terrorism June 2023 report lists no incidents where Black Americans were found to have committed an act of ‘domestic violent extremism.’ There are also no documented accounts of Black Americans engaging in these violent acts abroad.

In Big Brother Watch & Others v. The United Kingdom, the European Court of Human Rights clarified that secret surveillance in the interest of national security will undermine “the proper functioning of democratic processes” if it’s used as a ruse to violate human rights. After reading the Big Brother Watch decision, the concluding observations on the United States and the Republic of Ireland, and the 13 International Principles, I am convinced that a State’s voyeuristic surveillance of Black Americans infringes international human rights standards.

Now is the time for international human rights bodies to hold intelligence agencies accountable; with hope that they will unlink themselves from the behavioural chains of their colonial pasts.

[I submitted this blog post as an assessment for my LLM International Human Rights Law programme at Queen’s University Belfast on 29 October 2024]