today, in an advanced and highly modern liberal democratic society, against a group of people that were so assimilated, they were visibly, culturally, and statistically unidentifiable. The individuals who engaged in the genocidal version of anti-Semitism were not unusually sadistic, fundamentalist or fanatical. Rather, they were a civilized, gentile, educated, religious people who conscientiously embraced a revolutionary scientific ethic. The ability to murder millions of people in such a short period of time requires a few critical ingredients: a motive, the means, and a total failure of any safeguards or limits. Hitler’s revolutionary scientific ethic provided the German Volk with the motive: the total annihilation of the Jewry promised redemption and regeneration of the humiliated national German spirit after the First World War. However, it was modernity that provided the German Volk with the means to accomplish genocide and it was modern rationality that permitted the safeguards against totalitarian politics to fail completely. In more ways than one, the Holocaust was a uniquely modern phenomenon supported by inherently modern resources. According to Zygmunt Bauman, modernity was a necessary and a critical component of the Holocaust’s genocidal mission. The success of the exterminatory form of anti-Semitism depended on the practical policies of a powerful centralized state in command of a massive bureaucratic apparatus with access to advanced technologies. This modern cocktail of social control, which existed pre-Holocaust (and continues to exist today), rendered the German Volk extremely vulnerable to totalitarianism. When Germany went into a state of emergency, totalitarianism was the natural response and Hitler’s national socialism easily took control of every aspect of private and public life. Modern safeguards against totalitarianism, for
example, the liberal institutions and the doctrine of the Rule of Law, completely failed to protect equality and liberty for the vulnerable groups erroneously identified as enemies of the state. According to Kren & Rappoport, what makes the Holocaust so disturbing in hindsight is the awareness that this massive scale of violence is now “within the range of human possibility.” While this is true, the fear that ought to linger in the minds of Westerners today is that despite the fact that academics, historians, theologians and philosophers have contemplated the Holocaust to death, and despite the fact that late modernity continues to lay the framework for totalitarian politics, the West has not attempted to focus on how to, or even that it ought to, take steps to mitigate modernity’s despotic tendencies. If the “modern barriers to violent ambition and unscrupulous power have proven ineffective,” the West has a serious cause for concern. This paper intends to illustrate that the West continues to be at least as vulnerable to mistaken beliefs and totalitarian politics as it was pre-Holocaust through a comparison of surveillance technologies used by the Nazis with those available today. This paper seeks to explain why the West remains complacent to the latent, yet draconian, potential of current surveillance practices. Finally, this paper seeks to explore the moral imperatives for the legal community in light of modernity’s genocidal tendencies. 2. Nazi surveillance techniques Before any group can be targeted for marginalization and eventual extermination, they must first be identified. Thus, the fact that German Jews were among the most assimilated Jews in Europe posed a significant problem to the Nazis. Occupying
status quo. Tragically, by failing to protect liberal advocacy, legal equality, and the principles that follow from the rule of law, the lawyers under the Nazi regime left Germany defenseless to Hitler’s totalitarianism. The following examples illustrate how laws were precisely drafted to systematically marginalize vulnerable groups in Germany, and thus, how Nazi law utterly abandoned the Rule of Law. The first wave of anti-Jewish laws in 1933 ousted Jews from professional and commercial life and legalized the expropriation of Jewish assets, business, and jobs by Germans. The German National Recovery Act of 1933 required German businesses to give the federal government unprecedented amounts of information, Jews were prohibited from advertising in public directories and from leasing business space, and businesses, including Jewish-owned companies, were prohibited from having Jewish employees. The second wave of anti-Jewish laws in 1934 facilitated the creating of genetic profiles that would ultimately be used to identify the biological Jews that would be targeted for annihilation. The 1934 Law for Simplification of the Health System, required doctors to file detailed health forms about their patients with Health Offices, who used the information to create eugenic profiles. The 1934 Law for the Prevention of Genetically Sick Offspring legalized a sterilization program that targeted individuals deemed insane, retarded, epileptic, and mentally ill. Of the 84,600 cases brought to the Genetic Health Courts in 1934, 62,400 people were forcibly sterilized. The scope of the sterilization program was quickly extended to social undesirables, anti-socials, foreigners, and eventually Jews. In 1935, 88,100 genetic trails resulted in 71,700 forced sterilizations.
retrieved indefinitely”. According to Kerr & Barrigar, it appears that network technologies are evolving “from architectures of freedom to architectures of control”. For example, data mining algorithms, such as Google’s PageRank and HTTP cookies, are sophisticated algorithmic surveillance software programs designed to extract patterns and knowledge from mountains of historical data collected from billions of unconnected people in order to predict consumer behavior. Data scraper applications “troll through twitter feeds, blogs, social networking sites, online forums, bulletin boards, and chat rooms” in real time searching for correlations that will reveal the “emotional pulse of the internet”. These surveillance programs are generally undetectable by their objects with the exception of occasional tailored pop-up ads. The fact that they are undetected, however, does not mean that they are not collating, analyzing and selling information at a dizzying pace. The following examples illustrate how the information from data mining algorithms is utilized. Acxiom, a US marketing-communication agency, cross-analyzes consumer data from the most prestigious automotive companies, credit card issuers, banks, telecom companies, retailers, brokerage firms, pharmaceutical manufacturers, insurance providers, lodging companies, and gaming companies to identify their client’s precise target market. eXelate, a leading targeting exchange, uses data mining algorithms to scour website registration data to collect data on the age, sex, ethnicity, marital status, profession, and consumer activities to determine who is most vulnerable to targeted advertising. Rapleaf sells access to individuals through HTTP cookies using data collected from over 900 million blogs, internet forums, and social networks, 400 million consumers, and 52 billion friend connections. Lotame gathers, monitors and stores over