By: Tina Butoiu* and Carolyn Islam**
How would you feel if you were never sure if your phone was being tracked, your messages and calls tapped into, and your personal data copied? Would it make you less likely to engage with others online? Would you start to worry that your words spoken to friends and family could be misconstrued? Would you disconnect from social media and never use navigation to protect yourself or others?
A “chilling effect” is understood as “the idea or theory that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet.” It is clear that the tools of the surveillance industry are being used not only to address legitimate interests, such as protection against crime and terrorism, but also to target reporters, researchers, and those in some form of dissent from government orthodoxy. This generates fear and uncertainty among many in society, especially among human rights defenders and others who may not know whether they are being surveilled. That fear itself, however, is enough to undermine private and public space, as it can (as it is designed to do) cause people to behave as though they are under surveillance. This is particular true the government has banned or otherwise cautioned against certain kinds of speech. Such fear can also impede individuals from organizing meetings, sending emails, making phone calls, and engaging in other tasks related to their work.
Even countries like the United States, which prides itself on its First Amendment and constitutional values, are still subject to this phenomenon. Human Rights Watch (HRW) found that mass surveillance in the United States may have resulted in journalists publishing fewer stories. Additionally, HRW found that journalists have been forced to take extra steps to evade surveillance such as, avoiding emails and having conversations by phone, writing notes by hand and encoding them, and even deliberately creating misleading electronic trails, to protect themselves, their sources, and their information, and to avoid detection by the government. HRW found that the prosecution of sources alone, even if they did not result in convictions, resulted in severe consequences for them, including some losing their jobs.Even though journalists use sophisticated privacy-enhancing techniques and take extra precautions to protect their information and their sources, none of the journalists surveyed by HRW believed their efforts could actually protect their information or sources from being accessed by the government.
Writers are burdened by private surveillance as well. The PEN America Center surveyed 520 U.S. writers in 2013 and found that, in addition to being concerned about government surveillance, writers are engaging in self-censorship, with 28 percent of the writers surveyed “curtail[ing] or avoid[ing] social media activities,” 24 percent “deliberately avoiding certain topics in phone or email conversations,” and 16 percent “avoid[ing] writing or speaking about a particular topic.” This is not surprising considering the fact that the NSA can access 75 percent of traffic in the U.S., including the content of online communications. Although the NSA does not have the capability to analyze all of the traffic in real-time, the NSA does store the information and is able to analyze it when needed. Additionally, according to the ACLU, more than 125,000 individuals are placed under surveillance by the NSA each year simply because they “may have information bearing remotely on ‘foreign affairs.’”
These statistics are just a fragment of the overall consequences of surveillance on society. It may even be impossible to determine the extent to which “chilling effects” harm individuals or society as a whole. Individuals, regardless of their profession, appear to be adapting to a world where government surveillance influences what they say, what type of information they access, and how they interact with others. It also appears that individuals are increasingly censoring themselves out of fear of expressing, or in any way indicating, that they hold opinions the government would find oppositional. In 1971, Arthur R. Miller stated that extensive government surveillance will result in a “dossier society” where “people may increasingly base their decisions and fashion their behavior in terms of enhancing their record image in the eyes of those who may have access to it in the future”. It appears that individuals are increasingly becoming discouraged from challenging or exploring new ideas further because “where there is no privacy, there is little or no individuality.”
Even if governments and private companies justify surveilling individuals, or otherwise accessing their information without notifying them on the basis of national security concerns, the “chilling effects” of surveillance appear to go beyond information regarding government activities and extend to a person’s personality and values. If people no longer can freely express their opinions and beliefs, they can become quieter and suppress the most authentic part of themselves in order to protect themselves and others. Democratic societies require participation by individuals, and if society indeed reaches the point where individuals feel they are constantly being watched by the government, then we may very well end up with the “dossier society” after all.
* Tina Butoiu is a former Clinic student at UCI Law International Justice Clinic
** Carolyn Islam is currently a Clinic student at UCI Law International Justice Clinic