Internet Surveillance, Regulation, and Chilling Effects Online: A Comparative Case Study

Internet Policy Review, 2017 (Forthcoming)

25 Pages Posted: 27 Apr 2017 Last revised: 25 Jul 2017

Jon Penney

University of Oxford - Oxford Internet Institute; Citizen Lab, University of Toronto; Harvard University - Berkman Klein Center for Internet & Society; Dalhousie University - Schulich School of Law

Date Written: May 27, 2017

Abstract

With internet regulation and censorship on the rise, states increasingly engaging in online surveillance, and state cyber-policing capabilities rapidly evolving globally, concerns about regulatory “chilling effects” online — the idea that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet have taken on greater urgency and public importance. But just as notions of “chilling effects” are not new, neither is skepticism about their legal, theoretical, and empirical basis; in fact, the concept remains largely un-interrogated with significant gaps in understanding, particularly with respect to chilling effects online. This work helps fill this void with a first-of-its-kind online survey that examines multiple dimensions of chilling effects online by comparing and analyzing responses to hypothetical scenarios involving different kinds of regulatory actions — including an anti-cyberbullying law, public/private sector surveillance, and an online regulatory scheme, based on the Digital Millennium Copyright Act (DMCA), enforced through personally received legal threats/notices. The results suggest not only the existence and significance of regulatory chilling effects online across these different scenarios but also evidence a differential impact — with personally received legal notices and government surveillance online consistently having the greatest chilling effect on people’s activities online — and certain online activities like speech, search, and personal sharing also impacted differently. The results also offer, for the first time, insights based on demographics and other similar factors about how certain people and groups may be more affected than others, including findings that younger people and women are more likely to be chilled; younger people and women are less likely to take steps to resist regulatory actions and defend themselves; and anti-cyberbullying laws may have a salutary impact on women’s willingness to share content online suggesting, contrary to critics, that such laws may lead to more speech and sharing, than less. The findings also offer evidence of secondary chilling effects—where users’ online activities are chilled even when not they, but others in their social networks receive legal processes.

Keywords: Chilling effects, internet, online, government surveillance, corporate surveillance, NSA, privacy, internet regulation, human rights, freedom of speech, freedom of expression, online search, online speech, social networks, copyright, DMCA, social computing

Suggested Citation

Penney, Jon, Internet Surveillance, Regulation, and Chilling Effects Online: A Comparative Case Study (May 27, 2017). Internet Policy Review, 2017 (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2959611

Jonathon Penney (Contact Author)

University of Oxford - Oxford Internet Institute ( email )

1 St. Giles
University of Oxford
Oxford OX1 3PG Oxfordshire, Oxfordshire OX1 3JS
United Kingdom

Citizen Lab, University of Toronto ( email )

Munk School of Global Affairs
University of Toronto
Toronto, Ontario M5S 3K7
Canada

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA Nova Scotia 02138
Canada

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
PO Box 15000
Halifax, Nova Scotia B3H 4R2
Canada

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