Chapter 1 examines the leading theory of chilling effects – chilling effects as fear of legal harm – a legalistic account most often employed by lawyers and judges in the United States, Canada, and beyond. The author explores its historical and intellectual origins, key actors that have articulated and influenced the theory, and argues this predominant conventional account is too narrow, legalistic, and deeply flawed theoretically and empirically, and cannot explain, predict, or understand chilling effects in a wide variety of contexts. As such, it only contributes to skepticism about chilling effects, rather than dispelling them.

Chapter 10 predicts the “future” of chilling effects – which today looks darker and more dystopian than ever in light of the proliferation of new forms of artificial intelligence, machine learning, and automation technologies in society. The author here introduces a new term “superveillance” to explain new forms of AI-driven systems of automated legal and social norm enforcement that will likely cause mass societal chilling effects at an unprecedented scale. The author also argues how chilling effects today enable this more oppressive future and proposes a comprehensive law and public policy reforms and solutions to stop it.

Chapter 6 uses this new understanding of chilling effects to elaborate the dangers of chilling effects both on an individual level and societal scale. The chapter elaborates the two dimensions of chilling effects – repressive and productive. The former speaks to how chilling effects today can repress speech and other rights on a mass scale; the latter speaks to how chilling effects are conforming effects, and thus produce conforming and compliant behavior on a societal scale, which has critical implications for individual identity, development, autonomy, and equality, but is also corrosive to democracy and democratic societies.

Chapter 8 sets out a framework for predicting and evaluating chilling effects, including balancing them against competing chilling effects claims or competing values or public policy concerns, like speech and national security. The chapter illustrates the framework via three case studies: (1) the right to be forgotten (the privacy chill such a right may prevent vs. the chill the right may have on speech and other activities); (2) anti-stalking laws (balancing their benefits vs. their potential chilling effects); (3) national security surveillance and its secrecy (balancing national security justifications vs. their potential chilling effects).

Chapter 2 critically examines privacy-based conventional theories, which approach chilling effects as a result of privacy harms. While privacy-based theories of chilling effects improve on legal accounts, they are also too narrow and cannot explain chilling effects in a variety of contexts, including even forms of privacy-related chilling effects. Moreover, courts and judges have also remained deeply skeptical of privacy-based theories. To address these limitations and fully understand the threat chilling effects pose to freedom, fundamental rights, and democracy we need a new understanding of chilling effects that moves beyond conventional accounts.

Part II sets out and elaborates a new theory of chilling effects – a conformity theory – a central contribution of the book. Chapter 3, the first chapter in Part II, lays the theoretical and empirical foundation for this new understanding by connecting chilling effects with a broader body of social science and behavioral theory, in particular, research on social influence, like conformity and compliance. The author begins with an illustration of the power of extralegal social surveillance, convention, and norms to police behavior – at times more effective than laws – and the role of conformity and compliance in these contexts.

Chapter 5 demonstrates the explanatory power of this new theory and understanding by elucidating a taxonomy of a broad range of different types of chilling effects and explaining them using the theory. Among the forms of chilling effects discussed are those associated with surveillance and data collection; data breaches, processing, and profiling; statutory and regulatory chill; the chill of targeted personal threats, including legal threats, forms of institutional/infrastructure chill; as well as the chill of online abuse and disinformation.

Chapter 4 elaborates a new theory of chilling effects – as conformity and compliance. The author argues that chilling effects are best understood as a more powerful form of conformity and compliance – just like conformity, chilling effects reflect a behavioral tendency to self-censor and conform in the face of threats like surveillance, uncertain laws, or personal threats. The chapter also elaborates what the author deems the four “chilling effect” factors: observation; uncertainty; personalization or personal threats; and power and authority, which help predict and explain chilling effects. The chapter explains not only why chilling effects are so powerful in their impact on our behavior, but also their additive effects – how each additional chilling effect “factor” amplifies or magnifies the impact and scope of a chilling effect.

This chapter introduces the concept of chilling effects and contextualizes it, both with historical and contemporary examples, including the chill of: recent state actions that are increasingly authoritarian; online surveillance in the Snowden leaks; big data collection in the Cambridge Analytica scandal; automated surveillance in Clearview AI; as well as the modern origins of the chilling effects concept. The author also discusses persistent skepticism about chilling effects by lawyers, judges, scholars, and researchers, and why, and provides an outline of the conformity theory advanced in the book. The author ends with a road map for the structure of the book.

This brief concluding chapter discusses key contributions of the book and explores how a “protective” counter-movement in law and policy – that protects against and resists state/corporate activities that weaponize and spread chilling effects – can be sustained over the long term; one that is evidence-based and addresses the dangers of chilling effects today and tomorrow.

Chapter 9 makes the case for critical changes in chilling effects law and doctrine based on the new understanding advanced in this book. The author argues, among other things, that judges should no longer remain skeptical of privacy chilling effects; that chilling effects doctrine should no longer privilege legal and regulatory forms of chilling effects over others; and that standing doctrine and other areas of law should also be reformed to accommodate this new understanding of chilling effects.