Chilling Effects: Online Surveillance And Wikipedia Use

Jon Penney

University of Oxford – Oxford Internet Institute; Citizen Lab, University of Toronto; Harvard University – Berkman Center for Internet & Society; Dalhousie University – Schulich School of Law

2016

Berkeley Technology Law Journal, 2016

Abstract:

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but also a change in the overall secular trend in the view count traffic, suggesting not only immediate but also long-term chilling effects resulting from the NSA/PRISM online surveillance revelations. These, and other results from the case study, not only offer compelling evidence for chilling effects associated with online surveillance, but also offer important insights about how we should understand such chilling effects and their scope, including how they interact with other dramatic or significant events (like war and conflict) and their broader implications for privacy, U.S. constitutional litigation, and the health of democratic society. This study is among the first to demonstrate — using either Wikipedia data or web traffic data more generally — how government surveillance and similar actions may impact online activities, including access to information and knowledge online.

Chilling Effects: Online Surveillance And Wikipedia Use – Introduction

On March 10, 2015, the American Civil Liberties Union, on behalf of the Wikimedia Foundation and eight other organizations, filed a lawsuit against the United States Department of Justice and the National Security Agency (NSA) challenging the constitutionality of NSA online surveillance:

This lawsuit challenges the suspicionless seizure and searching of internet traffic by the National Security Agency (“NSA”) on U.S. soil. The NSA conducts this surveillance, called “Upstream” surveillance, by tapping directly into the internet backbone inside the United States — the network of high-capacity cables, switches, and routers that today carry vast numbers of Americans’ communications with each other and with the rest of the world. In the course of this surveillance, the NSA is seizing Americans’ communications en masse while they are in transit, and it is searching the contents of substantially all international text-based communications — and many domestic communications as well–for tens of thousands of search terms. The surveillance exceeds the scope of the authority that Congress provided in the FISA Amendments Act of 2008 (“FAA”) and violates the First and Fourth Amendments.

An Op-Ed published the same day in The New York Times, co-authored by Wikipedia Founder Jimmy Wales and Wikimedia Foundation’s Executive Director Lila Tretikov, explained the lawsuit was necessary because “pervasive surveillance” caused “a chilling effect” that stifled the “freedom of expression” and “free exchange” of ideas on Wikipedia, the collaborative online encyclopedia that is global in both content and scope — it contains over 30 million articles available in over 200 languages and is among the ten most visited websites globally. However, like previous constitutional challenges to NSA surveillance, the lawsuit was not heard on the merits but dismissed in October for lack of standing. Wikimedia Foundation, the lead complainant, intends to appeal.

Chilling Effect Online Surveillance And Wikipedia Use

The idea that government surveillance is harmful to free expression and1 1association is not new, nor is skepticism about its empirical and legal basis. In the 1972 Supreme Court case Laird v. Tatum, for example, the complainants argued that broad government surveillance and data gathering unconstitutionally chilled their rights. The Court rejected the claim due to lack of standing, finding that the surveillance did not constitute an “objective harm or a threat of specific future harm.” The decision reflected a deep skepticism about both the potential chilling effects and attendant harms of surveillance. Such “judicial skepticism” has persisted over the decades. In a 2013 case, Clapper v. Amnesty International, the Court cited to Laird to dismiss a challenge to the legality of NSA surveillance authorized by the Foreign Intelligence Surveillance Act (FISA), and noted that chilling effects fears were “too speculative.”

Chilling Effect Online Surveillance And Wikipedia Use

Skepticism about chilling effects is not confined to courts. Legal commentators have long questioned the existence or scope of surveillance related chilling effects, and they have also expressed skepticism as to whether the premises of chilling effects theory can be empirically substantiated. Even Frederick Schauer, who offered an early classic statement of chilling effects theory and doctrine, admitted in 1978 that its empirical assumptions about human behavior were “most likely unprovable.” Nearly a decade after Schauer, Vincent Blasi observed that the notion of “chilling effects” on supposed “fearful and overly risk-averse” speakers was “oft-criticized” and based on “crude behavioral speculation.” More recently, Leslie Kendrick, after surveying both literature and case law, emphasized the theory’s “weak” and “flimsy” empirical basis and concluded additional research was required for the “unsubstantiated empirical judgments” of chilling effects claims. Also recently, Margot Kaminski and Shane Witnov have acknowledged certain social science studies that corroborate forms of chilling effects, but nevertheless call for more empirical work on surveillance and its impact in a “number of critical areas,” including the existence, magnitude, and persistence of surveillance related chilling effects.

Privacy theorists, security researchers, and social scientists have also expressed skepticism about the possibility of large scale chilling effects caused by online surveillance. One reason for such skepticism is increasing public acceptance of, or desensitization to, privacy and surveillance concerns, particularly in new technological contexts. Indeed, some research in the field suggests that any chilling effects would, at the very most, be temporary or ephemeral, as online users have changed their behavior in response to shifting norms.

Chilling Effect Online Surveillance And Wikipedia Use

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