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Computers, Privacy & the Constitution
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The Chilling Effect of Surveillance-- By ChristopherPistrittoIntroduction The “chilling effect” on free speech brought about by vague and overbroad laws which lend themselves to “unbridled discretion to limit their exercise,” first mentioned in Supreme Court's Wieman v. Updegraff, can be witnessed today in Americans response to the revelation of an omnipresent surveillance state. Evidence shows that in the months after Edward Snowden’s unprecedented leak of NSA surveillance practices 28% of those polled “curtailed or avoided social media activities,” and a staggering 24% “ deliberately avoided certain topics in phone or email conversations.” The questions are thus twofold: first, is public sentiment such that legal remedies rather than technological solutions are feasible; and second whether the relationship between the discouragements to engage in free speech are sufficiently related to the laws enabling an omnipresent surveillance state such that the “chilling effect” doctrine may apply.
The FCC, Behavioral Collection, and the Public The modern milieu is such that the public has until recently seen surveillance primarily through the lens of a security response to the specter of terrorism. Yet in recent years this paradigm has begun to shift, seen through Americans declining belief in the need for curbs on civil liberty in favor of security as sufficient time from the events of 9/11 has passed. Additionally national flashpoints of privacy awareness such as the fight against SOPA and PIPA as well as the recent reversal of FCC regulations preventing ISP’s from selling user behavioral information have fostered new debates on the value of tradeoffs made not just for security but commerce. In particular it is latest indignity involving the FCC that has brought the scope of both public and private surveillance back to the national media, fueled by rancorous town halls in which memorable quotes such as one representatives’ response to an irked constituent that “Nobody's got to use the Internet.”
Besides being demonstrably false, and against a growing international consensus that access to the internet is a human right, an understanding of the full impact of this rationale is crucial to tying behavioral surveillance, for state security or private profit, to the chilling effect doctrine. “Nobody’s got to use the Internet” is the last defense in a long line of increasingly self-serving rationalizations which speaks to the core of the issue; no matter how negatively the presence of data collection will affect behavior, no matter how oppressive the effect on the exercise of speech, all is permitted as long as the internet is fundamentally regarded as optional. If access to the internet is no different than a choice to sign on to Facebook or use Google (both increasingly unlikely as the two become effective monopolies in their market segment), then lawmakers can and have demonstrated they will seek to curtail any right to privacy and autonomy online. For those who wish to maintain secrecy, privacy, and autonomy through the use of technological solutions, the world’s governments can simply move to ban such circumvention. The response in liberal democracies has been if possible even more insidious by discouraging such behavior as either an indicator of terrorism or holding those who forget their decryption passwords in contempt of court.
The Chilling Effect Thus the core problem reveals itself, while public sentiment has waxed and waned with regard to the precise balance of civil liberties versus security and commerce on the internet lawmakers have shown themselves to be fundamentally unwilling to implement powerful legal protections or facilitate the mass adoption of technological solutions. While the first amendment seemingly protects Google’s right to configure its search algorithm it somehow does not protect the freedom of speech and association enshrined in the civil rights era Supreme Court case National Association for the Advancement of Colored People v. Patterson when a citizen is online. This is despite the fact that the same suppression of free speech and association discussed therein has been shown to apply in the online space on Facebook where people refrained from joining groups or posting comments with minority opinions, or on Wikipedia where in the wake of the Snowden revelations searches for relevant wiki pages dropped a dramatic 30% as the public became aware they were being watched. The empirical proof of a chilling effect on online speech and association, discovered through both statistical analysis and sophisticated polling techniques, would seem to correlate mass surveillance whether done by private entities for profit or government fiat for the illusion of security.
This theory of a chilling effect has found some adherents, notably the Electronic Frontier Foundation (“EFF”) in its case First Unitarian Church of Los Angeles v. NSA (“First Unitarian”). There the EFF argues that the Foreign Intelligence Surveillance Courts (“FISA courts”) public order regarding bulk telephone surveillance infringes on freedom of association, with the strategy of leveraging a victory in First Unitarian to the analogous online scenario. While such a strategy would be unnecessary in an ideal legal environment, the twin political realities of the security state and a faltering FCC have left little legal recourse outside of constitutional guarantees to be decided, ultimately, by the United States Supreme Court. Yet until and unless the EFF prevails, technological solutions of the same type being discouraged and curtailed around the world are the last recourse for those who wish to speak freely, secretly, and autonomously online.
ConclusionThe chilling effect on freedom of speech and association affected by private and public surveillance, as shown by a veritable cornucopia of polls and statistical analyses, is quite real. The only question remaining to be analyzed are whether the Supreme Court will agree that the linkage between the people’s knowledge of behavioral collection and analyses under the panopticon is sufficiently tightly related to the legal regimes which permit such surveillance as to constitute a vague, overbroad, and overtly discretionary legal regime. Until then the technology of encryption and circumvention stand as the last bulwarks of online freedom."Chilling effect," as I mentioned at one point in my class ramblings, is a factual conclusion whose consequence lies on the side of standing to sue, rather than substantive liability. The creation of internal impediments to free speech, encouraging self-censorship, is an outcome of some government regulation of speech that entitles those who are not apparently within the ambit of the regulation or subject to any direct interference to bring suit nonetheless, as a result of the "overbreadth" of the regulation "chilling" constitutional expression at which it is not aimed. So, if there is a First Amendment claim to be made against forms of mass but not uniform government surveillance, parties who cannot prove themselves to have been targeted (as, presumably, they would have to show in bringing Fourth Amendment claims) might have standing to assert claims not certain to be their own under the doctrine of overbreadth, based on the effect in chilling protected speech. But chilling is not in itself a cause of First Amendment harm. A regulation must be narrowly tailored and resort only to the least restrictive means, but if the object and the means are constitutional, the presence of some unnecessary restriction isn't therefore fatal, or at least that would seem to be what the existing rationales imply. So either the essay directly faces that analysis and provides a reason why chilling effect is a source of constitutional liability in itself, or there need to be a modification and redirection of the next draft towards standing and away from the merits. |
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