Computers, Privacy & the Constitution

The Chilling Effect of Surveillance

-- By ChristopherPistritto


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 and should be interpreted as a source of constitutional liability when the public action leads enables private harm. The Supreme Court in Doe v. Reed is instructive on this issue, as although the Court there affirmed the disclosure of referendum rolls it did so under a lower standard of scrutiny than would be applied to non-electoral speech as well as noting a narrower context backed by evidence of harm could reach a different result. As 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 harm of surveillance is quite real.” Thus this paper first assesses the current state of public sentiment to public-private surveillance; and second analyzes whether the relationship between the discouragements to engage in free speech due to private harm are sufficiently related to the public laws enabling an omnipresent surveillance state such that the “chilling effect” doctrine may apply.

Public Sentiment to Surveillance & the Internet

The pervasiveness of the internet in our daily lives and its prevalence in fostering public discourse has shifted the modern understanding of surveillance from that of a security response to the specter of terrorism to an intrusive privacy-destroying fixture. 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 trade-offs 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.

The Supreme Court & the Chilling Effect: A Public-Private Analysis

In the aforementioned Doe v. Reed Supreme Court case, the issue at hand was whether sponsors of a petition and signatories to said petition could be disclosed under public record laws despite potential negative effects of disincentivizing political speech on controversial issues due to said disclosure. The Court found for the state of Washington by utilizing a lesser standard of scrutiny (exacting scrutiny) due to the electoral context of the speech, noting that the state had a legitimate government interest in protecting the integrity of the electoral process. As related to the instant argument the Court acknowledges in Doe that a key part of the courts analysis was the private harm which could stem from the disclosure of records under the public law and the potential chilling effect, finding however that in that case there was not sufficient evidence of such harm occurring in prior instances of disclosure.

Consider now the application of Doe to the pervasive issue of omnipresent surveillance by private platforms authorized by government laws. 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.

Thus there is clear, demonstrated harm to public discourse due to the public enabling of both public and private surveillance, a theory of chilling effect that found an adherent in the Electronic Frontier Foundation's (“EFF”) 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.


The 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 questions remaining to be analyzed are whether the Supreme Court will agree that the issue deserves strict and not exacting scrutiny, and whether 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.

Version 1 Comments

"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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r5 - 05 May 2017 - 22:00:29 - ChristopherPistritto
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