Academic Writing

“Warm Archives”, Conceptualizing “Artistic Standing”: Legal Re-Imaginaries Via Art-Based Research
Rory Fitzgerald Bledsoe

The U.S. social contract has morphed into an increasing threshold of state and corporate digital surveillance, written without the body politic’s hand or voice. It has often been a product of reactionary law to a crisis - like The Patriot Act (2001) - rammed through by a “War on Terror”, without consent from publics. This social contract has also been shaped, and warped, by the logic of “function creep” - the idea that systems and technologies often expand beyond their primary justifications for their use (Koops, 2019), which insidiously bends agency and consent. This word “creep” is a culturally illustrative verb, actions that go unnoticed, but progress with the intention of remaining hidden, masked by a quietness that is still a threat.

This logic of “function creep” also pervades data privacy agreements, including when personal data migrates to other uses beyond its stated intention (Koops, 2019). This “intensifies surveillance and privacy invasions beyond what was originally understood, and considered socially, ethically and legally acceptable” (Koops citing Murakami Wood). Problematically, this surveillant imaginary, especially its digital mediation, has not been agreed upon by a body politic via an embodied way of knowing. This knowledge is in part circumscribed because of what has been hidden from us - like government surveillance only being unveiled via “leaks” and “whistleblowers”. It also is disembodied via its mediation because the digital medium truncates the vastness of surveillance in time and space. These digital/online networks also curtail affordances of the body such as affective responses and participatory exchange within shared physical space. Also problematically, many of us, especially as “users”, receive this panoptic gaze with an inevitableness and socialized complicity.

Our data privacy norms are therefore often not being decided by us, but instead thrust upon us. This is in part due to advancing technology for which convenient updates are married to increasing infringements. For example, constantly updated user agreements, not intended to be read (given the time it would take), are passively and instantaneously agreed upon via a click. A gesture that signifies something differently for the corporation, “consent”, than often what it signifies for the user - the desire to keep using and consuming the app. The click necessitates a process of normativizing judgment once the policy has been updated, a cognitive dissonance to be resolved. For many of us, things that would never have been okay upon first asking for permission - like a corporation tracking our every inch of existence - are now normativized.

I argue how and why an artistic lens is necessary to address data privacy violations of online surveillance, especially in this age of “function creep”, and therefore “creeping consent”. The U.S. judicial system unfortunately makes bringing issues of data privacy violations and surveillance difficult, as it gate-keeps these kinds of claims through stricter procedural thresholds, especially in a legal claim’s first barrier, that of standing”. An arts-based research approach to examine these violations proves useful as a means of contesting a legal issue that so often lacks standing in court. I conceptualize a new framework that combines art, media studies and law, what I term, “artistic standing”. I showcase how “artistic standing” can address a gap in jurisprudence and also function as a different way of contestation, providing new kinds of possibilities for shaping policy and an embodied consent.

I analyze three art-based research projects through the framework of “artistic-standing”. First, my immersive installation, “#TheArchive”, an imaginary of Facebook’s archive of my personal data from the exhibition, “From URL To IRL” (2017), as a physicalized records office of what Facebook had collected on me over many years. I examine my performance, “Search Me”, in which I became a search engine for my private Facebook DMs, interrogating the archive of personal communication contained and maintained by Facebook. And I analyze my audio-visual installation, “Consensual Listening” from the exhibition “Certifying Reality” (2019), which urges people to consider what the government hears if or when an agency were to listen in on their day-to-day activities. It is composed of a series of tapes listened to via a handheld cassette player, beneath an orange light. This art-based research materializes and visiblizes the repository of data passively collected during the mundanity of our data lives, bringing forward affective gaps that point to disagreement with these data policies. They also serve as an embodied confrontation, problematizing our participation in this system of mediated (and often uncontested) extraction.

Literature Review

Multi-modal scholarship is a powerful method to theorize differently, as a mode of creating additional understandings that communicate academic knowledge beyond the text (Carpentier, 2020). Lisa Henderson argues for media studies scholars to utilize this multi-sensory form as additive, and not a substitute for text and numbers, to expand how we conduct and express research, and moreover, “can we use as many communicative modes as we study?” (Henderson, 2020). Data surveillance research should have an embodied approach because surveillance is an embodied process - it tracks the body, extracts from the body, records the body, makes data from the body via mediation. This is similar to Katherine Forbear’s conclusion to examine refugee migration through the medium of photography because as she says,“forced migration is an intrinsically embodied experience (p.34, 2016). Along this vein, surveillance historically has been an intrinsically embodied experience - the historical genealogy of surveillance in the US ties directly to the institution of slavery, predicated upon monitoring and inspection of Black bodies (Franks, 2017, Arnett, 2020, Browne, 2015). To understand data surveillance in its complexity, is to bring back the site of the body in terms of its violations. And therefore, to utilize embodied methodologies for this examination. I do this through participatory art projects that go beyond visuality. These projects also all harness “counter-archives” (Monahan, 2020) made evocative, through aesthetics and affective relations of this information.

Multimodal methodologies are also more equipped to make visible things that have been invisibilized, which is particularly crucial to data surveillance. Unlike the surveillance architecture of an airport, the online surveillance architecture is deeply embedded into the platforms often without windows into what is being collected, disclosed or sold - it is largely imperceptible, even if not necessarily secret. Brighenti in her examination of “artveillance” underscores how these works bring to bear “visiblity regimes”: the visibility of recognition, visibility of control and visibility of spectacle (2010). There are so many facets to what is invisiblized in data surveillance including labor, temporality, the sheer volume of data collection, the quotidian, and the sonic landscape of this surveillance. Because of the opaqueness of surveillant infrastructures and complex bureaucracy of these archives, simple disclosure is insufficient; new ways of seeing (Monahan, 2018) and perceiving must be created.

One of the ways my multimodal representations transcend visuality and cultivate new perceptions is through engaging with the “haptic”. First and foremost, this harnessing of touch is critical to feeling the reality of something that is so often untouchable given the digital nature of these archives. By creating work that the audience is meant to physically caress, hold, weigh, it brings about this critical sense. Moreover, the archival aspects of my data surveillance examinations are served by what Tina Campt conceptualizes as “listening to images”: “a practice of looking beyond what we see and attuning our senses to other affective frequencies through which photographs register. It is a haptic encounter that foregrounds the frequencies of images and how they move, touch, and connect us to the event of the photo” (p.9, 2017). This approach allows for an excavation of the surrounding-ness of the data archives created by routine surveillance, what does that signify in terms of what we were doing then, but also before the data “event” and even after the data “event”.

Art-based research is part of multimodal research, although not all multimodal work is art-based. My work is “art-based”, as it primarily focuses on art exhibitions as a means of research. Media and communication scholars (Carpentier, 2020, Vasantola, 2021, Carpentier and Sumilia, 2021) apply Patricia Leavy’s conception of art-based research as “a set of methodological tools used by researchers across the disciplines during all phases of social research, including data generation, analysis, interpretation, and representation” (Leavy, 2017). Art-based research in particular has also been situated in its ability to address non-academic publics, expanding and democratizing the audience (J. Greenwood, 2020). This is especially important for issues that lack a judicial audience such as corporate and governmental digital surveillance (Solove and Citron, 2021; Harvard Law Review, 2018).

The school of what Paul Cirio calls “evidentiary realism” “considers the contents of the sociopolitical, technical, and cultural infrastructures of complex systems that influence perception and validation of truth and reality in an explicit empiricism of epistemic inquiry” (p.5, 2018). My surveillance art projects share that intention in dealing with the complicated infrastructure/assemblage of institutional surveillance, aiming to expose greater truths about our boundaries, privacy expectations and consent. That is why I contemplate affective sentiments provoked by archives, which more firmly address truth, than the pure exposure of things mostly of what Claire Birchall calls cognitively as “unknown known”. Knowledge and perception of these things have “disabled or deactivated” (p.126, 2021). Some of this knowledge is known intellectually, but it is not “embodied knowledge”, which is why these projects focus on affect.

Art-based research is a methodology that understands that “knowledge can be understood, felt and experienced”; there is a critical blending between affect and intellect (Carpentier and Sumilia, 2021). The “affective” component to these art-based projects is a critical way these works are able to engage with data privacy violations. Affect engages with the sensorial parts of the viewer that text does not, as there are ways that power cannot be understood solely through linguistic understanding (Berlant (2013), Massumi (1995), Gregg and Seigworth (2010), Ahmed (2005)).

My particular registries of art-based research focus on immersive installation, performance and sound recordings, employing multi-sensory and more empathic aspects. I contrast this with a strictly visual approach, which can be easily dismissed in our ocularly centered culture. Art objects on the wall are often scrolled past like the images and advertisements on our phones. It is along the vein of “evidentiary realism” in that it is research that “pushes the boundaries of what can be seen beyond sight” (Cirio, p.5). It is necessary in a world of what Trevor Paglen calls the “post-visual”, composed of “systems whose imaging capacities exceed those of human eyes to the point of being invisible to them” (Cirio, p.4). To harness the affective consequences of surveillance through engagement with curated archival material, is to reveal new kinds of information. As Laura Poitras says about her archival projects on the NSA, they “both create an aesthetic experience and reveal information that evokes an emotional response” (Cirio, p.7). My data surveillance art projects make affectively palpable through reception (ex. sentiments of discomfort, etc), the problematic “privacy paradox” (Barnes, 2006) - that people’s privacy values are different than what their behavior online reveals. Affect is key to moving citizens beyond awareness, to engage in action.

I make use of archives of what artistic collaborators Miriam Ghani and Chitra Ganesh call “ warm data”. Queer theorist, Ronak Rapadia also employs their term, saying it, “moves beyond dominant sensorial experiences with militarized information and surveillance that manifest primarily through the ocular…to open up other ways of knowing…”(p. 107, 2019). These other ways of knowing about data surveillance include a deeper understanding of the scope of this regime, and our personal and collective boundaries around data privacy and data appropriation. Participatory engagement with these archives through my art project creates an “archive of feelings” (Cvetkovich, 2003).These “warm archives' ' are particularly powerful in their reception; they contain what Jaimie Baron calls “the archive effect” in that they are experienced - an effect, no longer an object or “archival document” (2014). They also contrast with Derrida’s “burning archive”, perhaps lacking the desire for destruction.

My research questions include: what does an art-based approach, especially an embodied approach, to data surveillance do - what can it uniquely unveil/understand? What and how can this approach contribute to epistemology? Why are art-based methods uniquely powerful to examine surveillance? Other questions were about data surveillance more specifically: what are the contours of the audience’s privacy expectations? What can affective responses from the audience tell us about how people understand data privacy/surveillance? What do these archival records produce about these events of institutional data invasion (Derrida, 1995)? And what kind of historical, political and cultural narratives do these archives preserve?

Answering these questions helped me formulate my framework of “artistic standing”, which creates a “warm archive” in opposition to its institutional abstention. This doctrine harnesses affect, embodiment and participatory publics (as audience), to address violations that can be more effectively voiced in the public sphere, through a process that has the potential to shift policy. “Artistic standing” addresses a gap in “legal standing” when it comes to data surveillance, but also simultaneously acts as a kind of “archival authority” and evidentiary record; it creates a historical record in the negative space of the legal archives, and sheds light - like on a sculpture - on this absence.

Law as Archive

American law operates by way of archive. Decisions rest upon the notion of “past precedent” meaning current cases look to the past ways justice has been adjudicated as a means of authority. The legal methodology of harnessing past precedent is the doctrine of “stare decisis”, which holds that the court’s present holding must take analogous past holdings into account. Some courts have interpreted this as a sacrosanct rule and some as more of a guide (Sara and Kearns, 1999). The law has an unique relationship with history in that it produces a history in terms of how it makes decisions, but it also looks to history to form its decisions. Archives work similarly in that they “creat(e) the past rather than simply preserving it” (Baron, p.3). For American courts, “history is not only a source of authority, but legitimacy” (p.5, Sara and Kearns, 1999). For many judges, even if you do not think the past result is applicable or worse, do not agree with that decision, the doctrine of stare decisis provides that it should still be attended to (Sara and Kearns, 1999). History, pertaining to the law, can also be viewed through what legal theorist Lawrence Lessig calls “translation”, meaning preserving the “spirit of the law” (2006), which gives more flexibility to future proofing this archive. For example, the fourth amendment was written in response to the historical event of physical trespass of the home, but this can be abstracted as in response to preventing “technologies of trespass”, which then would extend to other media not yet invented. That is one of the fundamental tensions of a system predicated on past archives. Derrida in his conception of the archive also asks that it remain open to futurity: “As much and more than a thing of the past, before such a thing, the archive should call into question the coming of the future … it is a question of the future, the question of the future itself, the question of a response, of a promise and of a responsibility for tomorrow” (p.34-36, 1995).

This logic of the authority of the archive in American jurisprudence implies a neutrality of the apparatus that is reductive and illusory. Technology is not neutral and artifacts have politics (Winner, 1980). Contemporary historiography, such as new-historicism, does not see the past as objective (Sara and Kearns, 1999). American historian David Thelen asserts, “”memory, private and individual, as much as collective and cultural, is constructed not reproduced” (1989, p.1120). And this construction in large part is based upon what knowledge is collected and preserved in the archival process. Foucault in his meditations on the archive, refers to the archive as a disciplinary structure as it produces and records knowledge in accordance with power. But he also emphasizes the legal logic of the archive in that “the archive is the first law of what can be said” (cited by Baron, 2014). When these legal archives are absent, as I will demonstrate in terms of data surveillance, that is the disciplinary mechanism of power also labeling these events as “unsayable”.

Law creates a site of memory, through its proceedings, and testimony, but also through its archive of decisions that are constantly remembered through their incorporation into new proceedings. Paul Ricoeur expounds on the tension between memory and forgetting and the anxiety we have about forgetting, even our most mundane moments (2004). Socrates worried about the implications of the technology of the text as something that would not serve as memory, but instead a reminder (Ong, 1982). In some ways, these art projects are a response to that anxiety in an era of information overload, to remember the digital events and how events have been rendered by the digital. Digital technology also intersects with remembering, distorting what is more or less readily found with the search engine. That is some things are not easily searchable and therefore excluded by the historical record, but also, “...those documents that exist in digital form and are most readily caught by the search engine may come to dominate the historical record and be accorded a role that may be out of proportion to their original historical significance…” (Baron, p.143). Europe’s General Data Protection Regulation includes “the right to be forgotten”, which is the right to control one's personal search and institutional archive.

One of the issues the law has in terms of its aesthetics is that it mostly operates via text, especially legalese, which is in some ways a project of obfuscation. Even Jeremy Bentham, the utilitarian philosopher who created the architectural design of the panopticon, called legal language “excrementious matter”, calling for a new legal language that made clear “the exact idea of the will of the legislator” (p.199, Tiersma). This gate-keeping of access to the legal archive in terms of epistemology, is similar to the historical origins of the archive coming from the Greek “arkheion”, which was a closed off building that only those with the security clearance of authority, the archon, could enter (Derrida, 1995). American jurisprudence remains a kind of “arkheion” in that it is mediated by the enclosure of legal jargon, and necessitates a third-party such as a lawyer for interpretation, or someone who has the requisite knowledge to translate this information. This is in part why art-based projects that interrogate legal issues such as, “what do we consent to in terms of corporate data surveillance?” are poised to formulate expanded epistemologies. There does not need to be a middleman to translate and interpret these arguments, they are affectively communicated through embodiment and participation.

A New Epistemology of Jurisprudence/Legal theory

Legal archives can only be created if the issue can be brought to court. Legal “standings” are the conditions necessary for a person to bring a lawsuit, what the US constitution outlines as a “case or controversy”. The legal definition of “standing” is “capacity of a party to bring a suit” (Legal Information Institute, 2023). The focus is on a “party” - that is not just anyone who witnesses or contemplates a violation can bring it forth, only the person (or institution, state, multiple individuals, etc.) who is injured can make the claim. And it necessitates “capacity”, which turns on the kind of harm and whether the court views it as an “injury”. I address a well-known issue in legal scholarship - the trouble with achieving “standing” in cases of privacy harms and surveillance (Solove & Citron, 2021) and demonstrate why art-based research projects attending to these violations can serve as a new kind of “standing”.

The use of forced arbitration clauses, which are prevalent in data privacy agreements, takes away one’s right to even attempt to have legal “standing”, as issues must be settled outside the court and privately arbitrated. The ability for a company to force arbitration, even for major data privacy violations, was recently codified by the case, Scott v. AT&T (2021). This means that there is no possibility of a jury to hear one’s claim. But equally as important, this codifies an absence of archive, as these arbitration hearings are not recorded for public record, and they do not become part of the legal archive of precedent. Black-boxed arbitration hearings create a record of the “unsayable”. Forced arbitration clauses eliminate legal standing altogether, however even when the subject has the right to attempt to “stand” - the requirements encompassing “standing” are especially hard to achieve for violations involving personal data.

To have “a case or controversy”, the party must first have an “injury in fact”, which has often proved difficult to show for data privacy/surveillance cases. Courts have also decided that the party must show “causation” and “redressabilty” (Transunion v. Ramirez, 2021). But it is the “injury” component that has been most insidious in preventing a data privacy/surveillance suit to pass the illustrious gate of “standing”. Courts have ruled that to be “concrete”, an injury must be “real” and not “abstract” (Spokeo v. SCOTUS, 2016), which underlines the problem with data violations being conceptualized as abstractions - that the violation alone is not sufficient to cause injury. Clapper v. Amnesty Intl. (2012) ruled that parties (journalists, nonprofits, etc.) did not have standing based on the fact that it was likely that they were being surveilled based on Snowden’s leaks of the NSA surveillance campaign, ruling that although surveillance was likely that it was still conjecture and not “inevitable”. Legal scholar Scott Michelman notes that “in some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create” (2009).

”Artistic Standing”

Standing as a legal procedure is arguably what Foucault’s logic of disciplinary power views as a tool for controlling the body. Standing is used by courts to explicitly ordain how bodies can attempt to voice their injustice. The framework of “legal standing” reifies the hierarchies within the judicial system, providing a metaphorical mote that can only be crossed under particular circumstances - not everyone or every issue has access to the gates of justice, or to even be able to stand before them. These art-based projects confront the issue of corporate and governmental surveillance that likely would not have “standing” in court, bringing to bear past and ongoing violations that are legally incognizable. “Artistic standing” also expands the audience in terms of who gets to be part of this negotiation - it transcends the “party” to anyone motivated to contemplate a kind of violation or injustice. And critically, it creates an archival record that is judicially absent given their refusal to hear many of these cases and the dark trend of corporate data privacy agreements that mandate arbitration. In some ways these “warm archives” serve as a record of “injury”that cannot be computed by the law.

The legal issues brought forth by my art-based research projects would likely fail to achieve “standing”, if brought forth by complaint. My performance “Search Me” gestures to Snowden’s leaks of the massive NSA surveillance campaign - what private messages did they receive, read, share? It is legally insufficient for standing because it is “conjectural” and not “actual”, without this disclosure of the violation. The issues brought to bear by “Consensual Listening” would also fail to achieve “legal standing”, even though this kind of surveillance is likely to be taking place because “likely’ is insufficient. Lastly, “TheArchive '' contemplates what we have “informed consent” to as users of that Facebook, which would also likely to function legally as an “injury-in-fact” because user agreements do not contractually necessitate “informed” consent. This is building a new kind of injury and violation. “Artistic Standing” therefore interrogates this mechanism for institutional disciplining of the body, demonstrating its lack and need for expansion, and acts as a new assemblage to challenge power.

“Artistic standing” embodies the issue outside of a legal framework, wielding the unique possibilities of aesthetics to unmask and interrogate power. The power of aesthetics to confront injustices, not yet remedied by law, has been vocalized by multiple scholars, including how aesthetics can be “insurgent”, and “investigative” (Fuller, 2021, Cirio, 2018). The artist collective “Forensic Architecture'' uses police reports, witness testimonies, and other evidence to hold violent offenders accountable. A recent ongoing project “about the NSO’s spyware Pegasus includes a video that maps the terrain of cyber infections, a constantly updated platform documenting NSO Group’s far-reaching tentacles, a compilation of stories of those who have been targeted by digital violence, and a “data sonification” piece by musician Brian Eno” (Fang, 2021). Weizman, part of this collective, argues that these investigations can provoke action, but are not legal authorities unto themselves (Cirio, 2018). My argument is that these projects create a warm counter-archive (Monahan, 2020) to the “legal archive”. And this can create awareness and norm shifting through discourse that has the possibility of percolating jurisprudence. These art research projects that compose “artistic standing” are investigative in their use of disclosure of disguised systems of data collection. But my focus is on the power of discourse created by these aesthetics, especially aesthetics that are affectively engaging, embodied and participatory and they have the capacity to interrogate our “reasonable expectations of privacy”.

Much of privacy law rests on privacy norms, including the “expectation” of privacy (Katz v. United States, 1967). This includes both our “actual expectation of privacy” and “reasonable expectation of privacy, whether society is prepared to recognize this expectation. However, when increasing surveillance occurs, and is essentially accepted by society (like hegemony, without mass resistance), e.g. the Patriot Act -- this “expectation” shifts in a way that is shaped by power, not a democratic process. Our changing expectations are also thrust upon us by accelerating technological capacities realized in corporate markets and the increasing value of data (incentivizing user agreement updates with more data capture/selling). That is our “actual expectation of privacy” changes simply by technological implementation. And because there are so few social media companies, they have in some ways captured societal norms, creating a kind of monopoly on privacy norms. Our norms around surveillance and privacy thus necessitate spaces to breathe and negotiate what they have become, to notice the changes in expectations, and our affective response, to realize our boundaries and what “informed consent” actually means to us as subjects in a culture of “creeping consent’.

“Artistic standing” therefore has the capacity to critically impact policy as court cases are regularly influenced by social norms that define what is a “reasonable expectation” and an embodied knowing of what risks we have been presumed to have assumed. This aligns with Stuart Hall’s understanding of the production of media - this circular feedback loop of how “decoding” eventually affects “encoding”. Law is a media text that is ever-evolving and influenced by interpretation, however it is all too often sacralized as something unchanging and not affected by the people. My hope is that by even playing with the legal term “standing” that it unsaddles it from its disciplinary mechanism, as something that now is not only a gatekeeper, but productive sphere, a kind of “textual poaching” (Jenkins, 1989) that generates new possibilities through failure (Halberstam, 2011). It is a queering of the
My framework of “artistic standing”, includes multiple productive aspects: affective engagement, embodiment and participatory publics. I analyze this art-based research vis-a-vis “artistic standing” and how each of those productive aspects contribute to new understandings of digital privacy policy and online data surveillance, especially in their reception by the exhibition audience. This audience reception highlights how artistic discourse can shift norms and expectations, which have the potential to percolate into a media feedback loop (of jurisprudence). My theory of “artistic standing” renders an archive that would have been absent into something material. But it also creates a living “warm archive”, namely, these archival art projects harness affect, embodiment and participatory publics. This is in contrast to the cold data rendered by the surveillant machine, and the tepid darkness of these infrastructures.

Conceptualizing “Artistic Standing” Via My Art-Based/Archival Research

Affective Engagement

When confronted with physical manifestations of my Facebook data, in my installation “#TheArchive”, several people interacting with the installation expressed discomfort. Many donned the white gloves readying to search, but once viewing the scope and intimacy of the material amassing boxes and books, they quickly gave up. This did not appear to be disinterest, but more akin to shame and embarrassment - their eyes wide, and bodies tense; this affective tension was a discourse of its own. They might have been a digital lurker, but to be a physical lurker brought about a new unease around watching and surveilling someone so closely. It is possible that this affective engagement shifted for some audience members their norms around this kind of digital behavior, something that does not feel invasive when passively ingested on the screen, but does in its physical form. This newly problematized the viewer’s past digital lurking.

This installation also prompted an “uncertainty” of how some members of the audience should feel. Many audience members voiced to me that “they didn’t know how they felt”. But this confusion of affectivity is productive in that it underscores the complexity of negotiating our privacy norms. Upon viewing a book of data of the action of “unfriending”, a participant lamented, “I know Facebook has this on me, and I thought I had agreed to that, but this feels different”. There were tens of pages of a singular date, December 19th, 2012 - when the majority of friend deletions happened. Seemingly innocuous data provided the potential of intimate insight - someone asked “what happened on that particular day?” What else did that type of data signify - a breakup, depression, a life transition? Something as simple as a day of “unfriending” people signifies a rupture of the archive, and this leakage contains stories. That day, four years prior, I could no longer remember, but what it conjured was a knowing that something had likely happened to prompt a massive purge. Although I could not remember, Facebook probably could via a computational aggregation of the other data alongside it - a testament to a different kind of archival living memory - the corporation never forgets. They likely possessed invasive understandings of what I no longer even knew about myself. There were very specific boundaries that Facebook had violated for many audience members that were consistently named, especially how and when we end our digital social ties.

It also brought about an uncanniness - the familiar becoming grotesque. This was in part by subverting its medium, e.g. the process of “liking” something on Facebook - that digital click - becomes a box of everything I ever “liked”. It became an archive of behavior, maintained by the company. Facebook used this repository of “likes'' to create an algorithm determining various attributes including sexuality, race, religion, politics personality traits (Kosinski et al., 2013) then utilized for targeted-advertising and even election-targeting - did we consent to this when we as users first liked something? It wasn’t possible because we had no forecasting of this future use. This points to a more widespread trend of how social media corporations use a kind of retroactive consent repeatedly, part of this paradigm of “creeping consent”.

One audience member, when engaging with ”#TheArchive”, mentioned scrolling through a new crush’s Facebook posts going back years, and described the anxiety of accidentally “liking” one of these posts. This signified that they were lurking within an uncomfortable temporal territory - the “too far back”. The data Facebook had on me went back over a decade and so they were holding onto memories that were cringeworthy for me to remember, back when there was only a wall, and not a feed. This interaction of seeing an audience member surveil something so old, no longer myself, brought about shame, an affective provocation of new realizations of violation. And thereby, new ideas and norms around the temporality of storage were brought up: should there be an expiration date or statute of limitations on this kind of data storage? Did we really consent to this in perpetuity? And is this kind of perpetuity (this forever) a “reasonable expectation” that something as a society we are prepared to accept?

This affective response brings about a reflexivity. What is something that they would not want collected - what are the contours of digital violation? And what does that embodiment of lurking do - does it change how audiences perceive their own digital surveillance? What word would they not want searched for (in terms of my performance “Search Me”), what conversation stored in their DMs is too vulnerable for public consumption? To feel something from this invisibilized data capture is to understand that it is happening. And to understand it in the body - to reconnect the body to these disconnected captures and violations brings about an important vulnerability that can be powerfully wielded (Butler, 2017). This sort of affective understanding was also critical to the installation, “Consensual Listening”. This work physically embodied a question that is so critically entangled with power - “what are actually okay with - what do we truly accept, versus what we tolerate?” The tapes in “Consensual Listening” underlined this question of tolerance - how do you feel listening to a text conversation acted out? Imagine if that was happening constantly by governmental bodies. Years later we found out NSA agents were actually taking part in such dramatic renderings. This multi-sensorial engagement of the viewer is more easily able to bring about discomfort compared to relying solely on our eyes and imagination (when it comes to text).

In “Search Me”, I invited audience members one at a time to enter my bedroom - the ultimate intimate. That underscored the “affective” understanding of violation, positioning both myself and the participant in a spatially vulnerable position. There was a chair placed across from my bed for the participant to “search me” by vocalizing a keyword registered by me, sitting on my bed, my laptop in front of me containing the archive of my facebook messages. To sit across from me, in my own bedroom, as they use me as a “search engine” to excavate my private messages, brought about a discomfort that lended new understanding to how the audience as users might be violated. This performance re-enacted a potential invasion into my private Facebook messages (and acted out the invasion that my messages could be accessed and read) Each time a person entered and sat down, I exclaimed, “search me”, like a dare. Audience members then provided a single word or phrase as a means of excavation: “town, “curtain, “green”. Some people chose banal words like the aforementioned terms, but others chose intimate phrases like “I love you”, and more invasive words such as “medication” and “depression”, which revealed a habituation to constant access to intimate data and how privacy harms differ based on identity, e.g., disability, queerness (Skinner Thompson, 1018). This performance revealed an affective “habitus” in terms of how we are used to surveilling one another and invading each other's data privacy.

Online surveillance is supported by affect, as it generates more attention and time spent on these platforms (Boler & Davis, 2020). Joy Buolamwini’s conception of an “evocative audit” for algorithmic archives also employs the affective and artistic to considering information policy, “an evaluation of system through combination of human experience and documented evidence using counter-demo (depictions that demolish assumptions about a system) to viscerally relay harmful behavior like discrimination” (2022). I underscored affect when approaching research on data privacy because it has the ability to produce discourse that could potentially change policy. Affect gets into the crevices of past temporalities in ways that a policy brief or even amicus brief can not - as it can bring the past into the present via evocation. But moreover, throughout this research, I view affective displays also as evidence of the gaps between the current law, user agreements and publics, especially the fissures of consent.

Embodiment

There were audible gasps from exhibition lurkers, when walking into this records office of “#TheArchive”, producing the question of what was so shocking? It was in part the volume of papers and data. The mass amount of files, the hoards of data being tracked. It was also a testament to time and a way of showcasing time that we miss when watching surveillance - surveillance is hyper-present, a constant spectacle that is not slowed down by documentation and recording. This archive when searched comprehensively reveals thousands of thousands of pages of data - a testament to the sheer mass of what is being collected, but also being produced. Artist Hasan Elahi, in his work “Thousand LIttle Brothers” (2014) depicts the sheer volume of surveillance collection on himself utilizing 32,000 images of sous-veillance to create a large tapestry that is seemingly abstract from a far, but up close the composite images can be seen. This production and labor surrounding all of this data content was also emphasized by the process of creating this work.

In the installation “#TheArchive”, this research prompted, what are we actually consenting to in an embodied manner? These art-based research projects demonstrated that “informed” does not simply mean “informationally known”, but must be deeper, amidst this architecture of disconnection and dissociation. The affective response by the audience to these art-based projects also brought forth a new kind of not knowing, unveiling the dissonance between the knowledge contained in our bodies versus our minds. This was in part due to the haptic aspect, audience members searched with their bodies, their hands, not just their eyes. Similarly, in “consensual listening”, the audience placed tapes into the walkmen, agents of their invasion. “Embodied knowledge” “is based on movement away from the page, towards the body, allowing knowledge to settle in the body” (Del Gaudio, 2021). Our minds passively comply with decreasing privacy and increasing data mining, but the audience engagement with these art-based projects demonstrated that when bodily confronted, this tolerance and acceptance can shift.

The tapes of Consensual Listening demonstrated that only when that data is played back to that person that a point of rupture occurs - like that Facebook memory from ten years ago that you did not even realize was still part of your digital archive. This playing back of data is reflected in “#TheArchive” and in “Consensual Listening”. It brings up potential ruptures for myself, but also serves as a mirror for the audience to also remember their own ruptures. This research underscores the omnipresence of surveillance and so when this data is mined from the user’s body, it often goes unnoticed, unless it is played back and engaged with, which is what this artwork forced upon the audience. Audience members chose amongst 8 tapes to put into their cassettes, and similar to “Search Me”, I utilized a spatial confrontation to underline the affective vulnerability of these violations. Two desks faced each other, the participants listening to varying intimate content, but having to look at someone else while ingesting. Some listeners stayed for hours engrossed in the audio archive of the tape. This work clearly did not create the same level of discomfort as with “#TheArchive” or “Search Me”. Potentially removing my body from the work, and not forcing their body to participate - other than through the passivity of listening, created a separation that enabled affective distancing.

This performance “Search Me” also highlighted the potency of sound, an auditory intimacy lacking from the visual/kinesthetic aspects of #TheArchive. Sharon Siliwinski highlights how attending to the sonic environment changes how we bear witness (2022). “Search Me” centers on the acoustic register, it is my voice that testifies to my invasion, reading aloud, with only slight and natural movements, while sitting on my bed. The voice also possesses an unparalleled empathic accuracy (Kraus, 2017) allowing for a deeper connection and emotive understanding of what data violations feel like when materialized. It also has the ability to call back to the body to the textures smoothed over and unheard. The power of sound, to penetrate our glazed over hyper-ocular state, is also what prompted the installation, “Consensual Listening.” Our courts also rely heavily on the voice through oral testimony, cross-examination - to take the stand relies mostly on expressing one’s voice. And that is what this performance allowed me to do, to “artistically stand”.
“Searching my private messages for so fucking good…”, enumerating the number of results for each keyword, “568 results”, and then excerpts of conversations containing that word. I anonymized the other party to the conversation, but read the times and dates, which surprised me in terms of its added intimacy. In real time, through this process, I unveiled conversations that flirted with the line of discomfort for me, and on one occasion, crossed my privacy boundary, thereby erecting a newfound boundary. During the performance, a participant offered the innocuous seeming word of “why”, which brought up a conversation involving a topic that I could not bear to read out loud.

I had found my line in the sand as to what I didn’t want to share. In recording of the performance, you can hear me say, “redacted”, improvisationally inspired by how our government decides to obfuscate confidential information. It was this art based methodology of performance and improvisation that led me to unpack what personal information was most invasive and process the most vulnerable parts of my archive, held captive in the corporate annals of privatized data storage. This was also a form of opacity (McGlotten, 2017) that I needed to implement, even in my own self-surveillance. Each of these works also attempts to unmask data surveillance, to make it visible in various ways and thereby create a corpus of “embodied knowledge” (Del Gaudio, 2021), providing the audience and the researcher with newfound “standing”.

The “embodied knowledge” gleaned from the affective responses these artworks garnered, from the display of massive data violations, is something that standing in court would likely not provide. Some of the embodied knowledge gained about data privacy violations was the revelation that for many audience members, these archives of data collection had crossed boundaries, perhaps unknown to them before, but only realized through these participatory and physicalized confrontations. In this way, “artistic standing” can provide a precursor to seeking legal standing, the revelation of an injustice, and moreover having a stake. Interestingly, the justification for necessitating “standing” to go to court has often been discussed as ensuring that the party has a “stake” in the claim.

Participatory Publics

This idea of the importance of participation as a project has been theorized by many curators and artists that have moved beyond “construction of objects to be consumed by a passive bystander” (Bishop, 2012). Participation is a means of confronting our alienation by capitalism - something that Debord was fighting against with the Situationists, to see “participation’’s ability to “rehumanize a society rendered numb and fragmented by…capitalism” - that it can repair this lost social bond due to alienation (Bishop, 2012). In its way addressing disembodiment of our data through participation is also attending to a kind of alienation - from the data extraction of surveillance capitalism (Fuchs, 2016). This participatory aspect is also critical in that aesthetics have been appropriated by advertising (Bishop, 2012). We need something that pierces the anesthetization of the spectacle for contemplation and discourse to happen, and that in part is achieved by making things participatory.

When a party has legal standing, the audience is composed of a judge, counsel, the plaintiff and defendant, potentially a jury, and rarely members of the public, but with “artistic standing,” the audience is the public sphere. These works expanded audiences in ways that text could not and reached publics that even with “legal standing”, a court case could not. Parts of “#TheArchive” went on to be shown at Boston City Hall, as well as Boston Center for the Arts. “Consensual Listening” premiered at Flux Factory in NYC and part of the work, including a tape of the performance “Search Me”, went on to be shown in Bueno Aires, Argentina.

The exhibition audience, when confronted with an issue of injustice, is also metaphorically handed the role of judge and jury. The audience cannot provide a material restitution for the violation, but it can provide what I call, “affective restitution”. With these projects, some of the audience provided evocative validation that this kind of data surveillance and collection is a violation of privacy. The shock and discomfort expressed verified the exploitation and disturbance I felt upon absorbing all that Facebook had extracted from me. A book I created of every VPN - every exact location with exact coordinates of its server - that I had ever signed into via Facebook was routinely remarked upon in disbelief: “do they have that information on me too?” “They keep track of VPS like this for everyone?”

The cold spotlights shining on an entire box of files, thousands of pages of paper devoted to everything that I had “liked”, and by vicarious imagination, a participant contemplated, “what would my box of likes look like?” Facebook had the same data on them begging the question, “what were we all actually agreeing to?” I went through the same process of realization when making the work, employing a program to scrape data after the laborious process of screenshotting the hoards of information in each category (e.g. everything I ever commented upon other people’s posts). The gasps signified a new processing and understanding of the intensity and meticulousness of this copious data collection, revealing potential gaps in their knowledge of the extensiveness of this data surveillance and extraction mechanism.

This provoked the question as to whether Facebook was retrieving “informed consent” when people ticked the box “agreeing” to Facebook’s terms of service and also whether “consent’ had been coerced - far from enthusiastic or even voluntary. It brought forth the dissonance of the privacy paradox - most online users case about privacy, but they tend to act in ways, in terms of online behavior, that contradict what they state as their data privacy values (Barnes, 2006). This is possibly because many users are not provided informed consent. There was also a question as to whether the audience had even read Facebook’s terms of service at all, as research shows that many people do not, given the time constraints (Livingston) and the added barrier of legal jargon.

But also this participatory nature of displaying the annals of data maintained by corporations and the state, also contributes to a more “informed consent”. “The Archive”, materialized all the data tracked by Facebook, providing a new kind of “reading” of the Terms of Service that are so often effectively illegible. This installation in some ways provided a “first time” reading of what audience members had “consented” to in the terms of service, but it also created and unveiled ruptures within their agreement and acceptance of these privacy policies. There were renegotiations of their contours of consent in real time. There would not be legal standing for violations of “informed consent” because they had been legally agreed upon via a one-click contract. But this rendering enabled the audience to negotiate and process their boundaries on data collection, especially archival data practices. Perhaps most provocatively, this installation potentially shifted acceptable privacy norms for some participants.

Through an intentional intimacy, and a ruptured dissonance through embodied confrontation, these works created an affective solidarity between the researcher and audience, and amongst audience members themselves.. This can be likened to the feeling of affective participation of a jury. But this audience is playing multiple roles - they act not only as a jury of my peers, but also vicariously position themselves as plaintiff (the violated), and further, also perform as a stand-in for the corporation and the government, as a participatory invader, as a surveiller, so they also act as a defendant. The audience performing several roles provides a multiplicity of understandings for the subject that is arguably more difficult to achieve with the static and adversarial roles of the court, all played by different people. This holding of many stakes and violations at once, makes the perspective more nuanced, complex.

Conclusion

Artists have a powerful agency that cannot be dismissed, even by institutional parameters, by displaying their work to the public sphere. Especially when institutions work to absent our right to a legal archive through arbitration and standing. These art projects reveal and discuss other types of violations currently deemed legally incognizable and those that the courts have not yet contemplated - they have not been formally articulated or even perhaps realized, given the way our society masks many of these surveillant mechanisms of power. Future research includes curating an exhibition of artists who are confronting issues that are currently not considered “injuries in fact” according to the law - beyond surveillance, whether they are not sufficiently certain or particularized, and also provide them a form of “artistic standing” to illuminate these injustices.

This research cements the importance of data privacy policy that considers data violations, including surveillance, as the concrete and particular “injuries” that they are - to have standing in court, to not be forced into the darkness of arbitration, but exposed to the light of our justice system. Artistic standing” also offers another mechanism of policy engagement while courts catch up. And a mechanism that can potentially get into the courts by forcing the public to negotiate their norms and assumed risks - doing the sometimes slow work of discourse. And even when recognized by courts, the methodology of “artistic standing” provides new kinds of contestations and ways of knowing, through affective engagement that provide expanded avenues to vocalize an injustice, and to new and larger audiences that transcend the minority and gatekeeping audience of the court.

“Artistic Standing” is an anti-neoliberal approach as it goes beyond legal rights, as the only mechanism to address violations of power. Legal standing is too often insufficient, a blockway instead of bridge. But “artistic standing” serves as a broader and more inclusive methodology, via a more participatory and democratic model, the participatory exhibition. It works against the model of only individual violations to have redressability. And it creates a collective “embodied knowledge”, of particular affective grievances and epistemologies, through “warm counter-archives”. They shed light in the darkness of imperceptibility and the negative space our courts have constructed with this logic of disciplinary gatekeeping. “Archives – as records – wield power over the shape and direction of historical scholarship, collective memory, and national identity, over how we know ourselves as individuals, groups, and societies” (Shwartz and Cook, 2002). These art projects via the archive not only help construct history, and preserve memory, but they help us get to know ourselves. What kind of socio-political-technical world do we as subjects actually want to inhabit? These artistic projects puncture our complacency when it comes to routine surveillance and institutional archives. But just as critically, they suggest that the totality of our lives as “subjects” can never be wholly documented by power.

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