In 2010 U.S. Customs and Border Protection agents at the Canadian border stopped an American student on his way home to Brooklyn. Pascal Abidor was returning from McGill University in Montreal, where he was working on his Ph.D. Unfortunately for him, his doctorate is in Islamic Studies, and when the officers asked him to open his laptop and type in his password, they found images of Hamas and Hezbollah rallies, collected as part of his research into modern Lebanese Shiism. He was detained for several hours, and his laptop was impounded. When he finally got it back—following intervention from the American Civil Liberties Union—it had been forced open, and the contents, which included personal information as well as academic material, had been copied wholesale.
The subsequent court battle, which the ACLU lost, resulted in a ruling with consequences that were literally far-reaching. A judge affirmed not only that Border Patrol agents had the right to search travelers’ physical and electronic belongings without reasonable suspicion of wrongdoing but also that they could do so far beyond the border crossing itself, within a hundred miles of any “external boundary.” As the ACLU points out, two-thirds of the population of the United States lives within 100 miles of the border. Nine of the 10 largest U.S. metropolitan areas—including New York, Los Angeles, Chicago and Houston—lie within this band of extended border authority. As a result, some 200 million Americans actually live in de jure border zones, subject to an almost complete exemption from the Fourth Amendment, which is supposed to protect citizens from arbitrary stops and searches. This is the border state of exception, and it’s not limited to the edges.
This border state can be separated even from the physical boundary of the nation-state. Take the Spanish enclaves of Melilla and Ceuta, classic examples of external borders. Historical free ports on the Moroccan coastline, they are contiguous with and claimed by Morocco but administered by Spain. Since Spain joined the European Union, they have been subjected to increased pressure from African and Middle Eastern immigrants and are both now entirely surrounded by multiple layers of 10-foot-high barbed-wire-topped fencing, reminiscent of the Berlin Wall—or to give more recent examples, the Israeli–West Bank barrier, the Mexico–United States border wall and the eight-mile long Evros River fence between Greece and Turkey. This proliferation of fences follows lines of migration and power. It marks not a closure of the border but its increased permeability and indistinction.
Another kind of physically diffuse border is seen in the geo-nerd favorite town of Baarle-Hertog in Belgium / The Netherlands. That slash is manifested on the ground in a Swiss cheese of jurisdictions, with a total of 24 separate pieces of land that are either Belgian and enclosed by Dutch territory, or vice versa. Some are as small as a single house, or even smaller. One restaurant has different licensing laws on either side of the dining room. The same model is followed in effect by embassies worldwide: one can step off the streets of London, Paris or Vienna and into the territory of another nation—the path taken by Julian Assange.
These embassy spaces are not sovereign territory in the full sense but are another zone of exemption, which the host country cannot enter without permission from the diplomatic mission. It’s at this point that the border becomes decidedly gray, like the transit zones of international airports. Russian President Vladimir Putin has claimed that the transit area of Moscow’s Sheremetyevo International Airport is outside his jurisdiction when it comes to dealing with Edward Snowden, but the British Security Service Mi5 had no such compunction about detaining the journalist Glenn Greenwald’s partner David Miranda at London’s Heathrow Airport under the same circumstances. What these two cases teach is that the border is not defined by laws, strictly speaking, but rather by a legal regime whose precise code can be constantly reconstructed by political intent.
It’s in the interest of power, therefore, to extend as far as possible such effectively lawless zones—lawless not in the sense that no rules apply but rather because the laws in question can be manipulated, rebuffed or extended at will. International waters become expansions of border zones as the relentless logic of the border mandates effective control of the areas approaching it. In the Mediterranean this is seen in the interplay between different national and supranational bodies trying to defend Europe’s borders against the projected menace of uncontrolled migration. Since 2005 the European border agency Frontex (short for Frontières extérieures or, literally, "external borders”) has been tasked with coordinating the activities of border guards across EU member states that face nonmembers. In practice, the agency’s single largest budget allocation is for patrolling the ocean, which it does with equipment and personnel borrowed from national coast guards and navies. Most EU-wide effort goes into dissuading migrants rather than helping them. Frontex’s future plans include purchasing drone aircraft and satellite capability in order to patrol what its executive director calls the common pre-frontier—the deserts of Mali and the port cities of Libya and Syria.
For the moment, however, much of Frontex’s activity takes place on the sea. Following years of obfuscation and dodges, with refugee boats being passed from one jurisdiction to another if not “pushed back” entirely, the EU passed new regulations in April that permit Frontex to hand over refugees found in international waters to third countries—either their place of origin or, in practice, wherever is not Europe. Despite being in clear contradiction of the non-refoulement principle of international law, which states that refugees must not be sent or pushed back to a place where they might be at risk, this approach is fast becoming politically—if not morally—acceptable around the world.
The greatest current violation of the principle of non-refoulement is found in Australia, where the Abbot government has set up “offshore processing centres” in Papua New Guinea and Nauru and is violating the sovereignty of other countries as it implements its repressive immigration policy. On several occasions the Australian navy has turned back refugee boats off the coast of Indonesia, to the point of driving them back onshore. In February, The Australian reported on the discovery of oceangoing lifeboats on an Indonesian beach, lifeboats purchased by the Australian government just a month earlier. The Australian government refused to comment—and refused again when reports surfaced in August of Tamil refugees being intercepted, trained at sea to use the lifeboats and told to take their families back to India (where they had temporarily sought refuge after fleeing from Sri Lanka).
The key to non-refoulement is the requirement to determine if refugees are at risk at their point of origin. So how does Australia justify its interventions at sea? Where does the border go when no longer constrained by physical space, national territory or even dry land? The answer is into the electromagnetic spectrum, the borderless zone that is one endless border zone, allowing the free play of ephemeral legislation over fixed, physical bodies. The law assumes the quality of an electromagnetic wave; it fluctuates and flows, passing through and over the bodies of those in the zone, who are condemned to remain flesh, rooted in actual geography and thus exposed to power.
To counter the accusation of refoulement, the Australian government has started using networked communications to interview migrants while they remain in international waters. The occupants of a boat intercepted by the Australian customs patrol boat Triton in July were allegedly screened remotely, asked questions via teleconference by interpreters based on the mainland. The Australian Greens Immigration spokesperson Sarah Hanson-Young called the reports “extremely concerning,” stating, “there is no way that people can have their claims for protection properly assessed by immigration officials over the phone and when they are in the middle of the ocean.”
The UK, Dutch and other governments have also used distanced, networked processes to adjudge the authenticity of asylum seekers’ claims. A common practice is to record interviews with migrants and then subject the recordings to voice analysis, with remote “experts” deciding whether their accent is “correct” for their stated origin. This process is analyzed, and criticized, by the artist Lawrence Abu Hamdan in works such as The Freedom of Speech Itself, in which he pinpoints the exact phoneme in the middle of the Arabic word for “tomato” that is designated Syrian by the UK Border Force and used to disprove the asylum claims of a Palestinian refugee. “The fact,” says Abu Hamdan, “that this syllable designates citizenship, above a Palestinian Identity Card that contradicts it, forces us to rethink how borders are being made perceptible, and how configurations of vowels and consonants are made legally accountable.”
What Abu Hamdan says about the recording of the voice and its deployment in producing legal truth is equally true for any meeting of technological process and lived experience. The former is designed to—and can only—systematize and regulate, while the latter is fragmentary and frequently, in the case of refugees, formed and trained to avoid such state-sponsored classification. When systems are developed to undertake these classifications, mistakes are more likely than ever, not only because it is impossible to programmatically anticipate human experience in its totality but also because technology itself is never neutral. Software reproduces the assumptions and biases of those who create it, and when those biases have been formed at a physical distance, in different nations and cultures, the potential for failure and miscommunication is even greater.
Developed by the National Center for Border Security and Immigration at the University of Arizona, with funding from the Department of Homeland Security, the AVATAR kiosk is a “credibility assessment” tool for deployment at border crossings. Its acronym stands for Automated Virtual Agent for Truth Assessments in Real-Time, and it consists of an animated human face on a screen that asks questions of travelers, whose responses are then monitored through a series of “non-invasive artificial intelligence and sensor technologies,” including body movement, vocal dynamics, pupillometry and eye tracking. The appearance of the avatar itself is the result of research into user reactions to different faces, which gauged “trustworthiness, likability, and power/dominance.” As one report states, “In general, the neutral male avatar was viewed as more powerful, and the female avatar was viewed as more likable, but ultimately the avatar may have dissimilar affects [sic] on individuals being screened.” (Assumptions about the foreign other are not the only ones being made here.)
Following testing at the Nogales crossing on the U.S.-Mexico border in 2012, in late 2013 AVATAR was installed at Bucharest airport as part of a field trial sponsored by Frontex. In the first deployment, the public emphasis of the trial was on Nogales’ role as a narcotics trafficking point, while in the second it was visa applications and “suspicious” travelers. Since joining the EU in 2007, Romania has become another one of Europe’s “front lines” against migration and the target of much media and nationalist hysteria. AVATAR is the response of a technocratic border control system designed to see migrants as a threat—despite the fact that the greatest pressure on Europe’s eastern borders is not from drug smugglers but from people fleeing the humanitarian crisis in Syria. What constitutes a threat is context-specific, but systems developed in one context inevitably carry their initial assumptions to their new location.
Take, for example, the autonomous weapons systems developed in the crucible of the Israeli-Palestinian conflict which have been gradually rolled out across other battlefields in the last decade. The result of this transference of military technologies has, unsurprisingly, not been a reduction in conflict but a transformation of more and more of the earth’s surface into a total battleground defined by surveillance, urban warfare among civilian populations, signature strikes and extralegal assassinations—a “Palestinization” that follows the doctrines of Israeli military planners, applied to ever-increasing and differing terrains. So it is too in the electromagnetic border zone.
The increased automation of critical infrastructure has the effect of flattening understandings of the world and reproducing a single viewpoint. Technology “sees” the world as a series of flows and processes without meaningful distinctions. Hence, for example, the degradation of the right to peaceful public protest in the name both of security and of interruption to business: to a logistics network, the disruption caused by industrial action and that caused by a dirty bomb are functionally the same.
The electromagnetic border becomes truly ubiquitous when its logic is applied to everyone, all of the time. And this too is already happening. From the documents released by Edward Snowden, we know that online surveillance is potentially ubiquitous and international, even if it is ostensibly dependent on the citizenship of those surveilled (the NSA’s remit extends only to non-U.S. citizens). Online identity is fluid and data-driven; most visible aspects of our online selves are not self-selected but inferred from IP addresses, browsing patterns, purchases and the content of social media status updates. Thus the establishment of what John Cheney-Lippold, an assistant professor of American culture at the University of Michigan, terms algorithmic citizenship, an automated process for determining one’s protections much as Amazon might attempt to suggest related items to sell you. As with Abu Hamdan’s voice patterns, the arbiter of citizenship is not a passport, ID card or birth certificate but a set of behaviors and attributes classified by a fixed system. A certain day’s gathered criteria might assign us the required 51 percent confidence to be afforded the protection of the state; another trawl of data might relegate us to 49 percent, leaving us adrift once again. The rights and opportunities that supposedly flow from our citizenship status thus become as unstable and arbitrary as those of stateless persons.
Those of us who reside on the “right” side of fixed, physical borders seem to cross the electromagnetic border every day, whether overtly, by entering the right passwords and credit card numbers, or covertly, as when using VPNs to watch TV programs viewable only in other territories. Those on the “wrong” side are subjected to a different but analogous battery of tests, intensifying at the physical border but often carried out far from it, in networked enclaves or foreign transit zones or aboard floating teleconference platforms in international waters. In reality we all live in the electromagnetic border zone, a state of technologically augmented exception where the guards are no longer in front of us but deep in the substrate of everything we build and use, their deliberations obscure and their assumptions rarely questioned.