Understanding Chilling Effects

91 Pages Posted: 7 Jun 2021 Last revised: 13 Dec 2021

See all articles by Jon Penney

Jon Penney

Harvard University - Berkman Klein Center for Internet & Society; Harvard Law School; Osgoode Hall Law School; Citizen Lab, University of Toronto

Date Written: May 28, 2021

Abstract

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, and a range of social science fields toward a more comprehensive and unified understanding.

I argue that conventional theories, based on fear of legal or privacy harm, are narrow, empirically weak, cannot predict or explain chilling effects in a range of different contexts, and neglect its productive dimensions—how chilling effects shape behavior. Drawing extensively on social science literature, I argue that chilling effects are best understood as a form of social conformity. Chilling effects arise out of contexts of ambiguity and uncertainty—like the ambiguity of public or private sector surveillance—but have deeper psychological foundations as well. In moments of situational uncertainty, people conform to, and comply with, the relevant social norm in that context. Sometimes this means self-censorship, but most often it means more socially conforming speech or conduct. A theory of chilling effects as social conformity has important normative, theoretical, and empirical advantages, including greater explanatory and predictive power, clarifying what chilling effects theory is for and what it produces, as well as providing a basis to navigate competing and differing chilling effect claims. It also has implications, I argue, for constitutional standing as well as the First Amendment chilling effects doctrine.

Keywords: chilling effects, privacy, surveillance, censorship, freedom of speech, first amendment, overbreadth doctrine, technology law, social science, empirical legal studies, human rights, social norms, social conformity,

JEL Classification: K42, K00, K14, K12, K13, K49

Suggested Citation

Penney, Jonathon, Understanding Chilling Effects (May 28, 2021). 106 Minnesota Law Review ___ (2022, Forthcoming), Available at SSRN: https://ssrn.com/abstract=3855619

Jonathon Penney (Contact Author)

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

Harvard Law School
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Harvard Law School ( email )

1575 Massachusetts
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Cambridge, MA 02138
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Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

Citizen Lab, University of Toronto ( email )

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

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