The Chilling Effect of Privacy Invasion

Honestly, I thought I had personally put the NSA and Snowden topic to bed a couple of years ago. Thankfully the topic didn’t die. In fact, it keeps popping up in the news, directly and indirectly. Why do I say thankfully? Because I hadn’t evolved enough on the subject. Although it is popular to advocate some big stick policy to eradicate every radical lunatic with violent tendencies, this is an unreasonable expectation. What isn’t unreasonable is demanding that senseless violence, like we just witnessed in Paris, doesn’t become justification for operating outside of our values and specifically those enumerated in the Constitution.

After 9/11 it was easy to justify the suspension of Fourth Amendment privacy rights for the sake of security. What we saw was that we didn’t become safer. We sacrificed our rights to privacy as a result. There was a more subtle but just as significant impact: citizens began self-censorship. By allowing our privacy to be breached, we implicitly and gradually began forfeiting our First Amendment right to freedom of speech and assembly.

photo Charles Fettinger via Flickr

Some background is important to this discussion. Due to Dan Brown’s novel, Digital Fortress, I became aware that the NSA had existed for decades. And after 9/11 I, too, got in line to offer up my rights to privacy. I had no real expectation that my emails, texts, calls, purchases or phone calls were private. What didn’t occur to me was that because I expected to be observed, my actions and communications were measured…by myself. Even though I wasn’t trying to plot a terror attack or organize an insurgency, I censored my private communications with the expectation that they could become incriminating.

When people feel spied upon, they begin to reign in their communications. This does the authoritarian’s work for him. Instead of declaring Martial Law, the simple fear that our activities and communications are being observed causes, what’s known as a chilling effect. The chilling effect, in this context, is the reigning in of communications, essentially self-censorship.

This becomes a convenient practice for governments, because they don’t have to use resources to censor when the population censors itself. This is particularly powerful when coupled with the personal sense of duty that permeated patriotic Americans. There was a sense that sacrificing our right to privacy was tantamount to our grandparents sacrificing to fight the Nazis. This is the cost of war and other similar rationalizations.

These sentiments combined with the idea that, “I have nothing to hide” to create an implicit erosion of very important constitutional protections. First, and most obviously, we willingly forfeited our right to privacy. This was more explicitly exposed when Snowden released NSA documents in 2013. And because 9/11 had some historical distance, there was some outrage, but the predominant sentiment was still, “I have nothing to hide.”

What is critical to the discussion about abdicating our rights is the understanding the rights are collective. Even if we feel we have no particular use for certain protections, perhaps because we feel ordinary or legally compliant, we must understand that rights are created to protect unpopular but important action, often by those in the margins of society. So not needing a particular right has no meaning in the defense of that right.

photo/ donkeyhotey

When we examine how free speech is affected, a similar sentiment to the “I have nothing to hide” is the, “I have nothing to say” argument. Missing in these arguments is that it is unfettered expression that leads to important discovery and innovation. Innovation happens when people push boundaries, not reside safely inside them. It often requires collaboration and exploration to advance, and when people don’t feel safe in their communications, sharing ideas becomes a threat, stifling their development.

Where this obviously plays out is in the advancement of society. When government’s overreach it takes dissent to check them. Dissent requires numbers in order to have an impact. To gather enough people to matter, there must be communications and those communications cannot exist if people are afraid to share. This can be as simple as not spreading the word on a gathering because you don’t want to be put on a list, to developing a paranoia about those with whom you might need to communicate. In all, the most effective way a government can silence people is through fear. And the fear that your communications aren’t safe creates quieter and fewer voices.

Again, this self-censorship has an important effect on society. Those who need popular support most are those marginalized. Because those of us in the margins are typical less represented, gathering support for them requires courage and open dialogue. When we fear repercussions of our speech, there is a tendency to play it safe. That sentences the marginalized to remain there, even when there is broad based support for them, the support goes unexpressed.

When a population censors itself, then the government no longer fears backlash. This invites encroachments into other, unrelated areas of our lives. Suddenly, our right to fair punishments or our right to have an attorney is denied and nobody says anything. By not participating in democracy our rights become denied by default. And our participation begins with our expression.

Guest Author: Jerry Mooney