Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring after Sarbanes-Oxley

Abstract

This essay explores consequences flowing from the imposition of increasingly significant governmentally directed and enforced surveillance obligations on private actors within the economic sphere. The emerging public-private regime, exemplified by the Sarbanes-Oxley Act, has more clearly revealed its character: surveillance and control of the market and the firm by government in the name, and on behalf, of the private stakeholders traditionally charged with the development and protection of their economic arrangements. Surveillance is privatized -- outside directors, auditors, outside counsel, and corporate employees now increasingly serve as the eyes and ears of the state. Enforcement is nationalized. In lieu of private action by stakeholders, the state offers 'fair funds' reimbursements and state enforcement. The focus will be on the observer (who is required to survey), the observed (who must be monitored), the purpose of the surveillance (what must be monitored), and the persons or entities to whom the monitors must report. The essay then sets out three sets of archetypal factual narratives, the consequences of which are being currently litigated. The first relates to Chancellor Corp., the second to Solucorp Industries, Ltd., and the third to part of the Enron litigation. Using these as archetypal narratives, the essay extracts a series of norms for behavior applicable to both observer and observed. These are the beginnings of a system of standards ultimately governed by and beholden to the state. The essay then turns to an examination of the state, lying at the very center of this web of surveillance. First it analyzes the role of the state as enforcer as evidenced by the state's role in the cases considered. It considers the state as source of redress to stakeholder and market as evidenced by the SEC's campaign to widen its legislative authority to seek damages from wrongdoers and return the recovered funds to investors. Second, it examines the impact of SOX in the context of post-September 11, 2001 policies. In particular, it suggests that the elevation of monitoring as a significant state policy after September 11, 2001, may explain certain parallels between SOX and the anti-terrorism provisions adopted in 2001 and 2002. The essay ends with a preliminary consideration of the consequences of the construction of this great panoptic system of disclosure, in which individuals, firms and markets form the periphery and government lies at its center, and suggests that what may be emerging is a system of surveillance mercantilism.

Keywords: monitoring, lawyers, auditor, federal securities law, sarbanes-oxley, detect and report

JEL Classification: K10, K19, K22, K42, M14