Chilling Effect Impact

Surveillance, First Amendment Rights and the “Chilling Effect”

by Curt Monash of The Monash Report

In which I observe that Tim Cook and the EFF, while thankfully on the right track, haven’t gone nearly far enough.

Traditionally, the term “chilling effect” referred specifically to inhibitions on what in the US are regarded as First Amendment rights — the freedoms of speech, the press, and in some cases public assembly. Similarly, when the term “chilling effect” is used in a surveillance/privacy context, it usually refers to the fear that what you write or post online can later be held against you. This concern has been expressed by, among others, Tim Cook of Apple, Laura Poitras, and the Electronic Frontier Foundation, and several research studies have supported the point.

But that’s only part of the story. As I wrote in July, 2013,

… with the new data collection and analytic technologies, pretty much ANY action could have legal or financial consequences. And so, unless something is done, “big data” privacy-invading technologies can have a chilling effect on almost anything you want to do in life.

The reason, in simplest terms, is that your interests could be held against you. For example, models can estimate your future health, your propensity for risky hobbies, or your likelihood of changing your residence, career, or spouse. Any of these insights could be useful to employers or financial services firms, and not in a way that redounds to your benefit. And if you think enterprises (or governments) would never go that far, please consider an argument from the sequel to my first “chilling effects” post:

What makes these dangers so great is the confluence of two sets of factors:

  • Some basic facts of human nature and organizational behavior — policies and procedures are biased against risk of “bad” outcomes, because people (and organizations) fear (being caught) making mistakes.
  • Technological developments that make ever more precise judgments as to what constitutes risk, or deviation from “proven-safe” profiles.

A few people have figured at least some of these dangers out. ACLU policy analyst Jay Stanley got there before I did, as did a pair of European Law and Economics researchers. Natasha Lomas of TechCrunch seems to get it. But overall, the chilling effects discussion — although I’m thrilled that it’s gotten even this far — remains much too narrow.

In a tough economy, will the day come that people organize their whole lives to appear as prudent and risk-averse as possible? As extreme as it sounds, that danger should not be overlooked. Plenty of societies have been conformist with much weaker mechanisms for surveillance (i.e., little beyond the eyes and ears of nosy neighbors).

And so I return yet again to my privacy mantra — we need to regulate information use, not just information collection and retention. To quote a third post from that July, 2013 flurry:

  • Governmental use of private information needs to be carefully circumscribed, including in most aspects of law enforcement.
  • Business discrimination based on private information needs in most cases to be proscribed as well.

As for exactly what those regulations should be — that, of course, is a complex subject in itself.

Posted in Content, Governent Oversight, Government Surveilance, Incident Response, Legal, Privacy, Privacy Laws, Regulatory, Risk Management
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