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Jonathon W. Penney, "Chilling Effects: Repression, Conformity, and Power in the Digital Age" (Cambridge UP, 2025)
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Hello everybody and welcome back to the New Books Network. I'm Jake, one of the hosts of the channel. Today we're talking with John Penny, a legal scholar and social scientist at Osgoode Hall Law School, where he is an associate professor and research chair in Artificial intelligence, Data governance and and the law. He is also a faculty associate at Harvard University's Berkman Klein center for Internet and Society. And today we'll be discussing his new book, Chilling Effects. John, welcome to the show.
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Great to talk to you, Jake, and great to speak with your audience too.
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I was wondering if you could begin the interview by telling us a bit about yourself and how you came to write this book.
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Absolutely. Absolutely. So besides the fact that, you know, today is in your intro, I'm currently, you know, associate professor and I teach law and technology and that's, you know, the area of my research. When I think about my background, I was always growing up a bit of a nerdy tech and Internet kid. I was an early Internet adopter involved in my local techie scene. I had a friend who's deeply involved in the local hacker scene, involved the bulletin board system, local BBS scene. And I remember back then we were all so floored by how fantastic and the great potential for the Internet. But also I remember the conversations were always around or often around concerns that, you know, government and industry would eventually use and abuse the Internet, you know, to stifle freedoms, to track people and to commercialize it. And a lot of those concerns stayed with me. I mean in undergrad I studied, I majored in philosophy, minored in computer science. I continued the same interest in law school then later during my graduate studies when I essentially pursue the same questions and this, this concept of chilling effects during my doctoral studies at Oxford. But the reason why I wrote this particular book today is I really think that we've entered a new era where certain threats, law, technology, surveillance, are being weaponized in powerful and sophisticated new ways to chill, repress and control us. And I think our way of thinking about this public policy challenge is deeply flawed and we need to change our thinking and we need a robust response. And that's what I aim to set out in the book.
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I was wondering if you could start us off explaining what a chilling effect is in a legalistic sense.
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Chilling Effects has this dual character to it and the first meaning and really how this concept emerges in law and it emerges in, you know, public policy. And largely this legalistic understanding has really shaped how we often understand and talk about this concept. So chilling effects is a concept that really emerges in the post war period in U.S. first Amendment law, so U.S. constitutional law in a series of U.S. supreme Court decisions. This is during the McCarthy era. So this is an era in the United States where there's real concern about the rise of communism within the country we now refer to it, historians call it. This is the era of the Red Scare. So concerns about communists as a national security threat within the United States and across the west, right in Canada and in Europe and beyond. And there's a series of laws and you know, surveillance programs that are enacted to track and respond to this threat in many of over region. And many are challenged in court. And the U.S. supreme Court invokes this concept of a chilling effect to strike down many of these laws that have a chilling or discouraging effect on people's free speech that is protected First Amendment rights. And it's that legalistic understanding that ends up really shaping how we understand it. That is, I call this in the book, conventional understanding. So it's largely legalistic. It's focused usually on individual rights. It's focused on self censorship, of course, which makes sense because it emerges out of First Amendment law and the concerns in the speech protections of the First Amendment about self censorship. But also, as I argue in the book, this legalistic conceptualization has a lot of problems and it really has prevented us from thinking clearly about the public policy challenge that's posed by chilling effects and, you know, the threats that cause it in society.
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Let's expand chilling effects just a little bit. This is a privacy podcast, or at least I am a host who's mainly interested in privacy issues. If we were to think about chilling effects from a privacy perspective, how does that differ? How does that expand sort of the frontier of what can be covered by a chilling effect?
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Absolutely. So one of the problems with conventional understanding is that it's largely legalistic and focused only on the law and it cannot explain a vast range of other kinds of threats, namely privacy threats, even social threats, which I talk about in the book. But a big focus in the book is that this original legalistic understanding, which focuses on the law and how legal uncertainties can lead to self censorship, it entirely neglects and cannot explain how privacy threats like surveillance, like data tracking, which are so prevalent and pervasive in society today, how that has a chilling effect on people's behavior. So one of the real limitations of conventional understanding is that it lacks explanatory power. It cannot explain the research that's been done, including my research and others, but it also cannot explain our own intuitive feelings, the feeling we have there where you know, if you're reading something and someone's peering over your shoulder, like if you're on, on a flight or on a bus and someone's looking over your shoulder, you have this intuitive like, well, I don't want people sort of peering over my shoulder. And that sort of forces you, maybe you change, you stop what you're reading and that impacts on your behavior. And that's part of what I talk about in the book. Beyond the legalistic understanding, there is this behavioral tendency that we have in the face of a threat of a privacy threat, of certain kinds of legal threats, of personal threats, of violence to self censor and also change our behavior for self protection reasons. And conventional understanding, being so narrow and law focused, cannot explain privacy threats and their impact, but cannot explain chilling effects in a broad range of circumstances.
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Could you expand a little bit more on how chilling effects and privacy intersect in real world examples? You already mentioned data tracking is There something from your research you could perhaps cite?
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Absolutely. So part of what I talk about in the book, when I get into my critique of conventional understanding, is that, you know, there are great examples of research that have been done that document now the chill of privacy threats across a broad range of circumstances. Probably the. One of my most influential works is something that actually was a study that I conducted as part of my doctoral research at Oxford. And this study examined the chilling effects of online surveillance. This particular study examined the impact of the Snowden revelations in June 2013. So I was at the time a doctoral student at Oxford. The Snowden revelations come out in that June 2013, and it almost created this mass social experiment because now there was this intense awareness due to media coverage about the Snowden revelations, about the US Government, the National Security Agency, but also governments across the west engaging in mass forms of online and telecommunications surveillance. And what I asked in this particular study was, would this new awareness that governments are tracking what people are doing online, would this have a chilling effect on what people would be willing to search for or to read on and access online? And the way I conducted the study was that I looked at Wikipedia article traffic and I looked at what I called privacy sensitive article content before and after the slimming revelation. So the idea here is, is that if people were concern concern with government watching or tracking what they're doing online, then maybe they would be chilled from accessing sensitive content on Wikipedia. Right? Because they'd say, yeah, maybe I want to avoid this because I want to get caught up in some kind of government dragnet. And my findings in the study were really compelling. I found evidence not only of a drop off of article traffic, so people visiting and reading Wikipedia articles that were privacy sensitive in that June 2013 when there was such an intense media coverage, but on a month to month basis following the Stone in Revelations, I found there was fewer views of these articles over time. This was consistent both with a significant chilling effect that June, but a longer term chilling effect over time. And that chill continued on until August 2014 when I stopped collecting data and then started running up the study. When I ultimately published this work, it got a lot of media attention. And I think because it resonated with the general public following the Stone revelations, people were really concerned with government tracking what people are doing online. And intuitively this had a chill. People really were avoiding. And just so you understand the scale of that study, Jake, the sum total of the article views in that Wikipedia study were upwards 80 million. So there were tens of millions of People represented in this study. And the conventional understanding, that legalistic understanding that came from American First Amendment could not explain these results. Why? Because there was no legal risk. There's nothing illegal about reading Wikipedia articles. There's nothing illegal. And there was no, you know, right up until August 2014, no one actually got arrested. There was no clear legal harm or legal risk of doing so. This seemed to suggest a chilling effect due to a privacy threat. Not even due to a known kind of clear risk or harm, but just awareness that people are watching you, that is the government. That had an impact. So that was one key study of my own work that the conventional understanding couldn't explain. But as I'd gone into the research, I realized that conventional theories couldn't explain. What I was finding in my own studies and other studies that I was looking at is I started looking at social behavioral sciences. There was studies that had documented similar kinds of surveillance and privacy chill or, or behavioral effects that were comparable to that that I was finding in my Wikipedia study that also better explain what I was finding in these privacy chilling effect studies.
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Moving beyond privacy slightly, how does a chilling effect relate to social influence?
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Great. This was one of the key insights as I'd gone into some of that social scientific literature, because as I went beyond traditional legal theories, even traditional privacy theories of chilling effects, I found that social influence research, so research that has been done for literally decades, stretching back to the early 20th century, what social psychologists call social influence, so social conformity, compliance and obedience. And in that research, there was these really interesting bodies of literature and studies that I talk about in the book. One really interesting example is what's known as a watching eye literature. This is a body of research where social psychologists have conducted either lab experiments or real world experiments where people are in, you know, real world context sort of being tracked, unknowingly being tracked by the researchers themselves. And in the watching eye literature, people are made aware of a set of artificial pair of eyes, not even being aware of being watched, but simply being placed near where the tasks they're carrying out or the group activity that's being tracked by the researchers. If there's a pair of artificial set of eyes, almost as a reminder of the possibility that they could be under surveillance by someone else. The people in the experiments and all these studies are far more likely to engage in forms of conformity, far more likely to tell the truth, far more likely to be cooperative, and less likely to engage in any social behavior. That is, there was a chilling and conforming effect of this visual awareness Cue. One famous example of one of these studies is known as a Newcastle Tea Room experiment. And in this particular experiment, it was a real tea room in England at Newcastle University, and you had a counter, a tea counter, and no one's behind the counter to serve. And instead it was self serve and you had simply a tin box with a note that said please place 50 pen in the tin box for coffee and for tea. And what the researchers found was that on this sign, if they added a pair of human eyes as a visual reminder that potential being watched, people were far, far more likely to drop money into the tin with other kinds of signs, with nothing there or floral arrangement, it had no impact compared to the sign of eyes. So what this body of research really shows is, is that the awareness of being potentially watched, similar to the Wikipedia experiment study that I had done, had a conforming effect on people's behavior. And as I engage in other areas of research, there were similar bodies of research. Something else called the Hawthorne effect, for example. This is another really interesting body of work that similarly dates back to the early 20th century. It's called the Hawthorne effect because it was first documented by researchers at the Hawthorne plant of the Western Electric Company in Illinois. And the way they discovered what's known as today as a Hawthorne effect, and that's been widely documented, is that researchers were on site in this plant and they were trying to experiment with different lighting arrangements to see what kind of lighting arrangements increase productivity. What they ended up discovering is that when workers were made aware, when they knew they're being watched by the researchers, by the people experimenting with the light fixtures, they were far more likely to comply with government policy, far more productive, and less likely to socialize and break expected company norms. That is, when people know they're being watched, that surveillance, that observation has again, a conforming effect. As I'd gone into the social and behavioral research on compliance, conformity and obedience, Jake Some of these key factors that researchers have found contribute to conformity, compliance and obesity. Forms of social influence like uncertainty, observation, forms of personal threats and authority and power. These factors really track well with the kinds of factors or scenarios or threats that lawyers, privacy scholars, politicians, journalists often write about as potentially causing a chilling effect. Surveillance, uncertain laws and regulations, or uncertain government actions, forms of personal threats from government, tech industry, or even the threats of stalkers and abusers online and off, and of course, powerful entities, government, big tech and the like. And so a lot of these key factors in the book, I argue are really chilling effect factors. They help us understand how These different threats which are now being weaponized, have a chilling and not just an impact that leads to self censorship, but leads to more conforming behavior. And that has important implications for how we understand the public policy challenge that these threats pose. So good.
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So good. So good.
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We've expanded the definition of chilling effects from its very narrow legalistic terms through privacy. And it's now a pretty broad framework. I was wondering if you could walk us listeners through kind of how to conceptualize chilling effects in its broadest sense.
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Absolutely. So one of the key parts of this new conceptualization of this new theory or understanding of chilling effects that I influence in the book is to not think about it in this narrow legalistic way that we've been doing under conventional understanding, but to understand the impact or understand the threat of chilling effects through the lens of social and behavioral science. And that means it has an impact in two ways, both on a rational level, on a conscious level. But if you talk to social psychologists, you talk to evolutionary psychologists, the story that they're going to tell you is that the reason why we respond to these kinds of threats through by self censoring, engaging in forms of conformity, compliance and obedience is that we're wired to do so. That is, we do so for self protection and those of Our ancestors who didn't engage in self censorship and group conformity in the face of a threat to the group or the community, were less likely to survive over time. So through evolutionary processes, this is a natural behavioral response to threats that is deeply wired in our psychology. And so threats to the person, including surveillance, forms of uncertainty, forms of personal threats, and powerful actors and figures with authority in society, all cause these behavioral responses. And when you expand this understanding, it also expands the lens in which the kinds from the more traditional kinds of threats that we think about as lawyers and privacy scholars and activists, when you're thinking through law and privacy, to think of a broader constellation of potential threats and how they affect us and how they're already affecting us in society. That's what I tried to do in the chapter with my Taxonomy of Chilling Effects. So there are essentially two aims or purposes for that taxonomy. It's not so different from the aims of Dan Solov, who famously created a taxonomy for Privacy now, almost 20 years ago in his very widely influential work Understanding Privacy. And his aim with the Taxonomy of Privacy was to promote a more pluralistic understanding of privacy as a concept and understand the different actions out there, both by public actors and private actors, how they can create privacy impacts. That's essentially my aim with the Taxonomy of Chilling Effects. I aim to promote the same kind of greater pluralistic understanding of chilling effects for today, but also tomorrow. So in the taxonomy, you'll see I begin with more familiar forms like surveillance and data collection, chill forms of statutory, legal and regulatory chill the chill you might have from a data breach, right? When your own information has been misappropriated, there's been a kind of leak, and how there are privacy risks and concerns that create uncertainty. It creates a form of surveillance. It creates a form of personal threat that can have a chilling and conforming effect on the victim's behavior. So my aim was to go through and use my new understanding to explain all those more traditional categories. Because today it's not just surveillance and data collection by government agencies, or even national security agencies like I explored in my widely covered Wikipedia study, are centered around the Snowden revelations. And it's not even just companies like Cambridge Analytica, which was engaged in the misappropriate information for profit, right? It's not just businesses doing it for profit or governments for national security. You now have entities that combine both state and tech power, and they do so to shape behavior, right, to monetize it, but also for other reasons, even political in some circumstances, or to increase and incur Greater power to themselves. So companies like Palantir, Oracle, they're both the vanguard of the Trump administration surveillance and other tech initiatives, for example, and many of which are all in on developing these kinds of surveillance in large, large scale databases, systems to create the very chilling effects that I try to document and explain. In the books. It's an intentional program where the chilling effects are the point. But in the taxonomy, I go beyond some of those traditional categories. I talk speak to other kinds of threats that we don't often think about in terms of chill. So I talk about what I call social forums. So forms of how online harassment and abuse, it's often neglected in conventional understanding. And I explain them along similar lines. Often forms of online abuse and harassment, as some of my colleagues at Daniel Citron and Marianne Franks have long argued and documented their own work. My theory helps it understand, based on behavioral science, what they're saying is actually correct. This kind of online harassment and abuse can, can create some of the most profound kinds of chilling effects because they involve a kind of surveillance. The victim always feels watched, always feels observed. But most importantly, they involve and involve personal threats to safety. And if you understand the social psychology or the deeper psychological foundation of chilling effects and conformity, it makes perfect sense that a threat to personal safety that the victims of stalking and abuse and harassment often feel can have a real profound chilling effect. And if you use the conventional understanding, looking at traditional privacy harms or traditional legal risks, it simply cannot explain the impact of these kinds of threats and harm. Or for example, disinformation. Again, we often think about disinformation as a problem for democracy, which it is, but often we don't understand the processes of how does it contribute to problems of coordination and democratic participation. I explain that with my theory in the book. The way in which this happens is often governments use disinformation or bad actors use disinformation not just to try to change people's mind or persuade. Often the aim is to create confusion and uncertainty about what's true and what's false. And so people who might otherwise engage or might otherwise vote, they simply find this is too much information, I can't trust it, and so I disengage, right? So I call that the chill of disinformation is the uncertainty that's created by all the information out there. What Tim Wu says, you know, bad actors flood the zone with bad information, creating the kind of uncertainty and a chill of disinformation which impacts and erodes democracy and democratic participation. So this one aim of the taxonomy. But the other is to also understand in new ways the impact of some of these processes. And one great example of this is algorithmic profiling and prediction. Now, often the way privacy scholars and activists and scholars of algorithm systems and algorithmic firms, the way we talk about these kinds of systems, where you have powerful machine learning algorithms which profile us, they profile our likes, our preferences, and our behavior, and they can predict many of these same things, including our future behavior, in surprisingly accurate ways, often in ways that we're even not even aware of ourselves. And often privacy scholars and algorithmic scholars and scholars of the harms of these systems, we often critique these based on the harms of the output, that there's biases in these systems, that they can be discriminatory, that the outputs can be a problem for people depending on where they come from or where they're going based on the profile that's been created. Or for example, the way Dan Sola famously talked about these kinds of systems in his earlier works on privacy, that they're Kafkaesque, that people have a sense of loss of control, that they're standing sort of before this large labyrinthine or byzantine state that's processing information about them, and the harm there is almost a loss of control over your information. And I think all of that is right. That's an important dimension of these systems. But what I talk about in the book is also how profiling and prediction is an invasive, maybe the one most invasive forms of surveillance. That is to say, these kinds of predictions see into us and surveil not just us in the present by tracking our data, tracking digital traces about us. All of the data that's required, that goes into the profiling all involves forms of surveillance and data tracking, which increases the chill of these practices and activities. But a system that says also able to predict our behavior in the present and potentially in the future is a powerful form of surveillance, almost dystopian, which has actually been represented in certain forms of pop culture. I talk about, for example, the Steven Spielberg's movie Minority Report, which, if you talk to Spielberg, that movie was not necessarily the story of Minority Report, which involved a kind of powerful predictive technology where people could be accused of pre crime. That is, they're predicted they're going to commit a crime and they would be arrested before they could carry it out, based on precogs who had this powerful ability to supposedly see into the future. And the harm that people often interpret that system really was was a loss of freedom, that maybe the system could be wrong. It's getting the predictions wrong, and the wrong people, innocent people who had never carried out a crime, would be harmed and would lose their freedom because they'd be arrested for a lot of the same reasons. We often critique existing criminal justice processes, but if you talk to Spielberg and you talk to many of the actual movie producers and the writers, they say the story is really about a kind of futuristic, totalitarian surveillance, how we're being watched and observed not just in the present, but also in the future. But we don't even have to hypothesize some kind of dystopian future like in the movie Minority Report. Some of this is already happening now. And I talk about this and the really compelling story of Robert McDaniel in the book. He was a resident of Austin, a neighborhood in Chicago that was very. A very high crime, high murder rate neighborhood. And then, interestingly, there was a experimental predictive program that was developed by the Chicago Police Department that had predicted that Mr. McDaniel, to a very high percentage, would either be a victim of a violent crime or he would be. He would commit a violent crime. And he was put on essentially a watch list and notified of this. This essentially put a real target on his back, a literal target on his back in his community. But from his perspective, it created a powerful kind of surveillance in his life where he felt that not just his future had been determined by some system that he had no control over, but also the fact that he could no longer trust any institutions within society that might also have the same biased view of his future and of him. Even though he never committed any kind of crime, had no criminal record, it just happened to be that he was associated with people in his community, had friends and associates that he knew in his family and friends that had commit crimes, and he was labeled as such. We can immediately see the profound impact that this kind of predictive profiling had on him. He explains it in terms of surveillance. He couldn't trust social services, he couldn't trust psychologists, and he actually avoided all these. I call this a kind of system avoidance in the book, almost the societal, institutional form of children. This is kind of the aim of the taxonomy, to understand these new forms and their impact on people and broader society. When you finally find your thing, you want the whole world to know about that thing. So you use a thing called CANVA to make it an even bigger and better thing. Whether you want to create flyers for that thing, make presentations for that thing, or design merch for that thing. You can do anything. So people can See your thing, feel your thing, love your thing. The next thing you know, it's a thing.
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B
Canva.
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The thing that makes anything a thing.
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B
You've talked about this a little bit, but I'm wondering if you could expand a little more on the dangers of the chilling effects that you've enumerated.
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Absolutely. So one of the key differences about my conformity theory of chilling effects that I advance in the book is that it moves us beyond conventional understanding, which is narrow and deeply flawed and really has no explanatory power. But this new theory especially helps us understand the corrosive implications that these threats within society, which are now being weaponized in sophisticated new ways, impacts on people on an individual level, but has important impacts on a mass society level as well. Right. So let me give you an example. So, on the one hand, the conventional understanding was very much focused on self censorship. And of course, that's still a key concern of the work that I do. So when people are silenced by threats, that's a key loss. You lose that perspective, you lose that speech. And yes, people remain. That remains a key focus and concern. What's different about my new understanding is that it allows us to see how this impacts not just on individuals, but it impacts on a mass societal scale as well. What I talk about in the book, I say essentially chilling effects have two dimensions. On the one hand, they have what I call a repressive dimension, that is it leads to self censorship, but it also has a productive dimension, that is it produces forms of conforming, compliant, and obedient behavior. And when you think about that from a societal perspective, you can immediately see why that's a big problem for the health of a democracy. Right? It can mean more groupthink, it can mean less innovation and creativity. It means less diverse voices, less robust democratic processes and participation. All of that on a mass societal level, do these threats throughout society. But not just that. I mean, we often have this assumption that when a threat like surveillance leads to conformity, it means that people will be more better behaved. It'll mean that people will be more civil, that is, people will conform with mainstream values. And yes, that does happen, and that is happening. But one of the realities of the research and what I make this point in the book, is that conformity doesn't necessarily just mean conforming to broader mainstream values. It's conformity or compliance or obedience with the norm of the group you most identify with. So if the group you best identify with is an online community like 4chan that is engaged in trolling and Abusive behavior. If you're part of a group that engages in forms of harassment and stalking and abuse, if you're a part of a group that's a little bit more radical on the far left or the far right, then that will be the norm that you engage in conformity with. And so the outcome of these threats can be a more divided and polarized society where you have people, more group think, engaging, conforming with broader societal speech and points of views and norms and values. But then you have sub populations or other populations that are conforming with more extremist values, more abusive, abusive norms. So you can end up with more extremism and polarization. And I think we're. That's literally the story that we're seeing across the west, divided societies, more polarization, and I think chilling effects. And these threats throughout society are part of that story that no one's paying attention to.
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B
In this book, you coined a new term called superveillance. Could you tell our listeners a little bit about that?
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Absolutely. So one of the things that I talk about in the book is kind of the chilling effects of past concerns of the present, but also concerns about the future. And coming down the line is a whole new class of systems, a system that combines both new kinds of facial and bodily recognition technology. So facial recognition is already being deployed and used by law enforcement, you know, in cities across the United States and elsewhere. It's been often, in some cases has been banned at the municipal city level. So it's already being used and deployed. But there are new versions of it. Some of those are now also driven by sophisticated forms of machine learning and artificial intelligence. So this new class assistance combined facial and bodily recognition with powerful new forms of machine learning and artificial intelligence with a third component, what's often described as sort of real time personalized enforcement, where enforcement goes direct to the individual or enforcement goes direct to the customer who's deploying the system. And what's also important with this new kind of powerful surveillance system, Jake, is these systems tend to enforce not just laws, they also enforce social norms. Now, this new class of systems I call superveillance, combining forms of traditional physical surveillance of us being watched by cameras, in this case by facial and bodily recognition within society, but combining that with forms of law and social enforcement and done so where you receive the notice or the enforcement done is done immediately, specifically to the person. Now, these kinds of systems have been experimented by China for many years. In fact, they've been innovating in this space when it comes to superveillance. Although they don't use the term, it's a term that I use because it's really a kind of supercharged surveillance within society. But increasingly, these systems are also being deployed across the west, including the United States, Canada and Europe, both by governments, law enforcement, but also by private businesses as well. And increasingly very powerful companies which are ascendant under the Trump administration. Companies like Palantir and Oracle are all in on developing superveillance systems. Right. For example, Larry Ellison, the CEO of Oracle, which is a company that's increasingly powerful within this administration, he's all in on developing a mass social surveillance system which he quote, is to keep everyone in check. Now, of course, this sounds very Orwellian, but when you look at these systems through the lens of the theory of chilling effects that I set out in the book, when you look at each of these factors to understand this chilling future, if you look at surveillance, if you look at uncertainty, if you look at personalization and personal threats, and you look at power and authority, you can easily see with all of these key, what I call chilling effect factors in the book, they are combined in a powerful new way in these systems such that they're going to have a profound chilling effect at a society level once they're deployed throughout society. And increasingly, when you're talking about the power of the, it's going to be done by governments, it's going to be by law enforcement, but also by powerful tech companies as well. So in ways, these superveillance systems supercharge the production of self censorship and conformity, which makes the urgency of some of the reforms that we've talked about along the lines of surveillance, uncertainty, personalization and power and authority, all that more urgent in ways how they, if they are deployed across society, the kind of conformity, the kind of visibility that they can create, you can easily see how this is going to be deeply, deeply corrosive to the health of democratic societies across the web. So it increases the urgency of all those same reforms.
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Given all this, what can we do about chilling effects?
- [42:06]
A
Great. That's a great question and such an important one, you know. And part of this too is if you know, you, you get into the research, you realize what a, what an immense public policy challenge it is. And I think the first key step, and that's what I, one of my key aims of the book, is that we have to understand the challenge better. And so far, the way we've been thinking about chilling effects and the threats and factors that cause it, we've been thinking about them in this deeply flawed, narrow way where we're only seeing one dimension of it, only concerned with one element of the concern or the public policy problem. We need this new, broader understanding to see how there are threats on the privacy level. There's surveillance, there's data tracking, there's uncertain abuse and weaponization of laws, there's stalking and abuse, there's extremist groups weaponizing these same threats to target marginalized communities online and offline. And the only way we can respond to these kinds of practices is to better understand the problem. So this new theory of chilling effects, that's a key part of the road forward. But of course, it's more than that, right? There has to be a robust public policy response. And fortunately, those four key factors that I set out in the book is a key way of understanding the key threats or factors or activities of government and big tech that contribute to chilling effects and how it produces this conforming behavior. So observation, surveillance, uncertainty, personalization, or personal threats and power and authority. Those four factors provide a great roadmap for how you put together a comprehensive public policy response to addressing these threats within society. So you need responses on each of these. So on the first count, for example, surveillance, you need robust new laws that essentially restrict and reduce surveillance both by government and in the private sector. And that means data collection, data retention, data tracking, data algorithmic predictability, and profiling. All of that forms part of the same broader polluting environment, which has this impact, which creates a broader concern that I picked up in Wikipedia study. And it's only gotten worse and more pervasive since that was 10 years ago. The threats have multiplied, they become more sophisticated, the awareness has increased. Right? That's why trust is down. That's why people are far more concerned about these privacy threats. It's all part of it. So we need a robust response on that. We have to deal with uncertainty. That means we need greater transparency in the public sector and in the private sector. We need laws that are being easily weaponized and abused by government, by extremist actors, by big tech. We need to rein in them. Some of these laws we need to reform. They need to be more narrowly tailored, to undercut. Some of this is certainly we have to have better eyes. We have to understand through new transparency what companies are up to, what government is up to. And with that transparency, we're going to better understand and reduce some of those concerns and threats. We need laws that address personalization and personal threats. And that's again, a broad range. I can only talk about some of what I talk about in the book here. But that includes robust laws that deal with forms of online abuse stalking threats. We already have some of those laws in the books, but they need to be better enforced. But we also need new laws to deal with new kinds of threats like deep fakes and new forms of intimate privacy violations. All of that needs to be covered. So new laws to protect us from new kinds of online and offline personal threats. But we also need to deal with personalization. This is a key part of what Shoshana Zuboff calls surveillance capitalism, or Julie Cohen calls information capitalism. How companies as a financial model are engaged in mass forms of data collection, retention and analysis and profiling in order to monetize our behavior, but also predict and shape it. And we need to target those financial models. We need to reduce the incentive to have these because the same kind of personalization leads to these same impacts. Even if it's not done for national security reasons or to weaponize, to chill dissent and speech, it has some of the same outcomes. And the research shows that that. And fourthly, we need to deal with power and authority and that means reining in forms of government abuse. That means more arm's length agencies that can investigate some of these abuses. You need arm's list law enforcement that actually hold government and industry accountable. You need new antitrust laws, anti competition laws that deals in reins in powerful companies that are to not only to fail but but too big to regulate now. But we also need to deal with authority and power on an individual level. We need to give consumers more information and more power to make better choices. And we need more powerful and robust consumer protection, privacy regulating agencies and entities to be looking out for us because we don't have the time or the awareness to do so. We need some help and that has to come from reforms and a robust response. The last thing that I'll say is lawyers, courts and policymakers, in addition to, you know, casting away the deeply flawed conventional way of thinking about these problems, they need to see the research and have less skepticism for these kinds of claims. So one of the big problems with conventional understanding is that it's lead to a lot of skepticism amongst lawyers, judges, and you see this in courts, you see it in legal doctrine. They need to stop being so skeptical. And the research has shows that chilling effects is definitively they exist. They have a profound impact. My book shows it. The research out there now shows it. So policymakers, politicians, journalists, lawyers, scholars, they need to get with the new research, get with the new understanding and make it easier for people with reasonable claims to go to court and have their rights vindicated, in addition to some of these broader, comprehensive public policy reforms.
- [49:05]
B
John that's just about all the time we have today. Thank you so much for coming on the show. If people want to learn more about you and your work, where should they go?
- [49:13]
A
Jake, it's been a real pleasure talking to you. Absolutely. So listeners can check out my website and they can find it@johnpenney.com, that's Jo N P N E Y.com where they can see links to the book, recent works, op EDS essays and all of that. But also if they want to find the book, they can find it all major online and offline retailers, really easily available. And I hope they seek it out and they enjoy it, of course.
- [49:44]
B
Thanks again for coming on the show today.
- [49:45]
A
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