Understanding Chilling Effects

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

Privacy and Legal Automation: The DMCA as a Case Study

Advances in artificial intelligence, machine learning, computing capacity, and big data analytics are creating exciting new possibilities for legal automation. At the same time, these changes pose serious risks for civil liberties and other societal interests. Yet, existing scholarship is narrow, leaving uncertainty on a range of issues, including a glaring lack of systematic empirical work as to how legal automation may impact people’s privacy and freedom. This article addresses this gap with an original empirical analysis of the Digital Millennium Copyright Act (DMCA), which today sits at the forefront of algorithmic law due to its automated enforcement of copyright through DMCA notices at mass scale. With literally millions of such notices sent daily, this automation has been criticized for causing large scale chilling effects online, yet few empirical studies have examined this issue in depth. This article does so with a mixed-method empirical legal study synthesizing findings from a survey--with over 1000 participants in a nationally representative sample--with findings from a content analysis of 500 Google Blogs and 500 Twitter accounts targeted by DMCA notices. The study offers a number of new insights, including (1) the DMCA notice and takedown system is likely working for rights-holders with major platforms like Google and Twitter effectively processing the vast majority of DMCA notices they are receiving; (2) DMCA notices may be having broader chilling effects on internet users across a range of activities, with women and the economically disadvantaged likely disproportionately impacted; (3) how the provision of legal information as to internet users\u27 rights can mitigate these chilling effects; and (4) the effectiveness of automated DMCA notices as compared to non-automated ones. The article explores the implications of these findings, including for copyright, algorithmic law, and lays the foundations a privacy theory of automated law and its governance

When Law Frees Us to Speak

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyberharassment and sexualprivacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, the law has an equally important expressive role. In this Article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role: its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We present new empirical research showing cyberharassment law’s salutary effects on women’s online expression. We then consider the implications of those findings for victims of sexual-privacy invasions

Online Abuse, Chilling Effects, and Human Rights

Online harassment, cyberbullying, hate, and other forms of online abuse pose a significant threat to human rights in Canada. Now, the country is at a crossroads: it will face American pressure to adopt a broad immunity model similar to Section 230 of the Communications Decency Act (CDA) or, at long last, take more robust action to address cyberharassment and other online abuse, beyond the piecemeal approach used today. Central to this regulatory debate are concerns and claims about “chilling effects”—that is, the idea that certain regulatory actions may “chill” or deter people from exercising their rights online and in other digital contexts. Such claims, and in particular claims about speech chill, have long been raised to oppose measures addressing online abuse. In this chapter, I argue that such chilling-effect claims, which are advanced to oppose measures taken to curb online harassment and abuse, neglect other kinds of chilling effects. I argue that such abuse chills the rights of victims. And, drawing on new empirical research on this point, I argue that such legal interventions—like cyberharassment laws—rather than having a chilling effect, can also have a salutary impact on the speech and engagement of victims whose voices have been typically marginalized. I will also discuss the important implications these findings have for Canadian law and policy

Virtual Inequality: Challenges for the Net\u27s Lost Founding Value

Freedom, liberty, and autonomy were the initial ideals heralded by cyberspace’s first generation of thinkers, writers and citizens, by those who helped forge the Internet and the early technological and intellectual foundations of “cyberspace.” These ideas were, says Lawrence Lessig, the “founding values of the Net” and inspired an entire generation of scholarship focused on preserving the free and libertarian nature of the Internet’s culture and architecture. But what has anyone to say about equality? Few, if any, scholars today focus on equality as a similar Internet “founding value” that ought to be preserved—if it indeed ever existed—or promote it as something to strive for online, or in virtual worlds and communities. This Article aims to change this. Returning to some of the foundational texts of cyberspace, this Article argues that equality ought to be understood as a “founding value of the Net” as much as liberty and freedom, and thus should be promoted and, where it exists, preserved. It then offers an in-depth account of the different forms of inequality in cyberspace, drawing, in particular, on challenges of online communities and virtual worlds and then considers measures to fight these inequities. It also argues that many challenges should be left to autonomous online communities to deal with themselves

Deciding in the Heat of the Constitutional Moment Constitutional Meaning and Change in the Quebec Secession Reference

The Quebec Secession Reference addressed divisive issues with far-reaching implications for the Canadian constitutional order. Recently, commentators have called for a less traditional and more systematic approach to understanding the decision, and its place in the broader scheme of Canadian constitutionalism. Accordingly, this paper challenges the predominant narrative concerning the Quebec Secession Reference, which is largely judge-centred and shows little regard for the important historical, political, and popular forces so crucial to understanding the decision. The challenge is mounted through the work of Yale constitutional scholar Bruce Ackerman and his theory of constitutional moments. This paper uses Ackerman\u27s criteria of higher-lawmaking and constitutional moments - signalling, proposal, mobilized popular deliberation and synthesis - as an analytical framework to advance a new understanding of the Supreme Courts decision. The author argues that the events surrounding the decision fit Ackerman s criteria fora constitutional moment and demonstrate that key aspects of the constitutional doctnne introduced in the decision - in particular the much heralded duty to negotiate - were shaped more by political and popular forces than by the Court itself. In exploring the implications of this analysis, the author re-assesses the academic commentary on the decision and recommends a new dialogical theory of constitutional adjudication that considers not just the courts and Parliament,but also the role of popular and political forces in constitutional change

Virtual Inequality: Challenges for the Net\u27s Lost Founding Value

Freedom, liberty, and autonomy were the initial ideals heralded by cyberspace’s first generation of thinkers, writers and citizens, by those who helped forge the Internet and the early technological and intellectual foundations of “cyberspace.” These ideas were, says Lawrence Lessig, the “founding values of the Net” and inspired an entire generation of scholarship focused on preserving the free and libertarian nature of the Internet’s culture and architecture. But what has anyone to say about equality? Few, if any, scholars today focus on equality as a similar Internet “founding value” that ought to be preserved—if it indeed ever existed—or promote it as something to strive for online, or in virtual worlds and communities. This Article aims to change this. Returning to some of the foundational texts of cyberspace, this Article argues that equality ought to be understood as a “founding value of the Net” as much as liberty and freedom, and thus should be promoted and, where it exists, preserved. It then offers an in-depth account of the different forms of inequality in cyberspace, drawing, in particular, on challenges of online communities and virtual worlds and then considers measures to fight these inequities. It also argues that many challenges should be left to autonomous online communities to deal with themselves

Understanding Chilling Effects

With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about “chilling effects,” that is, the capacity for these activities to “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 points. 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, are empirically weak, cannot predict or explain chilling effects in a range of different contexts, and neglect the productive dimensions of chilling effects—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 a vague law or 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

AI and Legal Scholarship : Reflections on Evolution and Influences

Leading Legal Disruption: Artificial Intelligence and a Toolkit for Lawyers and the Law is designed to challenge lawyers with the practical implications that emerging technologies will have on delivering legal services and thinking about legal issues to navigate their digital transformation. By inviting thought leaders across the world and in different disciplines, ranging from privacy, contract law, and torts to governance and policy, this book goes beyond abstract and general philosophical observations on matters that concern practitioners. This practical approach has generated a wide range of global perspectives, which are refreshingly novel and timely for what are increasingly global issues. The development and deployment of AI technologies present an excellent opportunity for humanity, where its positive impact can already be seen in transportation, health, finance, law, and other sectors. Autonomous vehicles and the prediction of COVID-19 spread present only a fraction of AI\u27s potential. AI is already automating various intellectual tasks that traditionally believed could only be carried out by human legal professionals, such as predicting court outcomes, legal drafting, contract review, case summarization, and legal research. For some, it was a surprise to read a report by McKinsey that estimated that 23% of work done by lawyers could already be automated by existing technology