The Conforming Effect: First Amendment Implications of Surveillance, Beyond Chilling Speech

Margot E. Kaminski*
Shane Witnov**

Intellectual inquiry has long been a private activity, protected by norms, laws, and physical constraints. Librarians have shielded readers’ records; states have passed reader privacy laws; and printed books do not track your favorite passages unless you underline them. But the advent of the search engine, public video platforms, and the e-book have resulted in a drastic reduction in the normative and structural constraints that once protected the privacy of our intellectual endeavors.[1]

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*Assistant Professor of Law, Ohio State University Moritz College of Law. J.D., Yale University; B.A., Harvard University.

**Practicing attorney in California. J.D., U.C. Berkeley School of Law; B.A., Stanford University; M.S., Stanford University. The authors wish to thank Chris Wolf of Hogan Lovells for workshopping a draft of this paper at the Privacy Law Scholars Conference. Many thanks also go to Marc J. Blitz, Yan Fang, Anne Klinefelter, Ron Lee, William McGeveran, Neil Richards, Lior Strahilevitz, and other participants at PLSC. Thank you also to Matthew Cushing, Mike Frank, and Rachel Mackenzie.

[1].   BJ Ard, Confidentiality and the Problem of Third Parties: Protecting Reader Privacy in the Age of Intermediaries, 16 Yale J.L. & Tech. 1, 3 (2013); see Harry Surden, Structural Rights in Privacy, 60 SMU L. Rev. 1605, 1617 (2007).