When leaders of a large immigrant church in Boston stood in front of their congregation on January 26, they noticed immediately that something was wrong. Where the sanctuary was usually filled with three hundred fifty joyful voices the previous Sunday, the pews had less than half their usual number.

This church’s experience wasn’t an isolated one. Across the United States, dozens of religious groups including many national denominations reported reductions in Sunday attendance, participation in soup kitchens, and access to homeless shelters in the weeks after the Department of Homeland Security announced a new policy encouraging immigration raids on churches, schools, and hospitals. Like many other communities, church leaders believed that ICE had made people afraid to show up at church, and on February 11th, the Massachusetts Council of Churches joined a lawsuit with twenty-five other national and regional church groups claiming that this new policy infringed fundamental religious freedoms.

litigators and legal scholars expect to lose religious and civil liberties lawsuits due to the difficulty of establishing causal links to changes in people’s behavior

In theory, this case from churches should have been clear-cut. How can we expect people to exercise their religion freely under the threat of government raids on churches? But as with many similar cases in the past, the judge rejected the plaintiff’s request for immediate action this April. The judge agreed that it was likely that people were avoiding churches out of fear of immigration enforcement — what scholars call a “chilling effect” on religious freedom. But she rejected the case on the basis of a claim about causality and behavior: “congregants are staying home to avoid encountering ICE in their own neighborhoods, not because churches or synagogues are locations of elevated risk.” Since the judge did not accept that the threat to churches was a direct cause of the change in behavior, she decided against removing that threat. 

While the litigation is ongoing, religious and civil liberties experts were not surprised by this outcome. In my many conversations on this topic, litigators and legal scholars expect to lose similar cases for the same reason — the difficulty of establishing causal links between government policies and changes in people’s behavior.

CAT Lab has over a decade of experience leading research on digital threats to civil liberties and developing science to support people to exercise those basic freedoms. This January, our leadership team collectively committed to make this issue a central focus of our strategy for the next five years. In this post, I summarize the big questions, explain the role that science can play, and offer a call to action on this urgent issue.

This issue doesn’t only affect churches – it is a pervasive problem that plagues attempts to protect journalists, scientists, community leaders, and people seeking access to basic health and education services. It’s also a problem expanded by digital surveillance and artificial intelligence that enable threats to people’s rights at an unprecedented scale. 

If fundamental civil and religious liberties are to survive an era of artificial intelligence and mass surveillance, scientists urgently need to prioritize research that can reliably inform courts and also bolster people’s resilience to the forces that hinder our basic rights.

Understanding Digital Threats to Civil Liberties

How do the actions of governments, corporations, and mobs restrict people’s fundamental freedoms? Scholars who write about civil liberties describe threats, violence, and abuses of power like a physicist might describe an asteroid striking the earth: some people are directly impacted, and many others are affected by the shock wave. This wider impact is part of the structural purpose and function of intimidation – to pressure whole groups into inaction by threatening individuals.

In this analogy, the direct impact zone might include specific individuals being targeted for harassment and detention, or specific communities threatened with violence. But as CAT Lab collaborator Jon Penney points out in his upcoming book on “chilling effects” in the digital age, threats to people’s liberties are also designed to make a wider circle too fearful to exercise our rights. The opposite is also true, as CAT Lab has found in our research: when people are protected from the fear of intimidation, they are much more likely to exercise their rights.

Digital technologies from smartphones and social media to AI have dramatically chilling effects by expanding the reach of surveillance and violent force. Both of these tools have widened both the zone of direct impact and the shock wave of technology on civil and religious liberties:

  • The computer and mobile revolutions have opened us up to unprecedented but messy surveillance, leaving anyone open to plausible, unreliable accusations
  • The internet and social media revolutions have expanded the global capacity to organize violence and harm
  • AI systems and other software are automating the exercise of power, enabling governments, bounty hunters, and hackers to carry out enforcement and direct harms at historically-unprecedented scales

The result is that over the last several decades, we have seen increases in threats to people who exercise their civil liberties. Where surveys are available, they consistently report that more and more people are stepping back from participation in protected civic and religious activities out of concern for their freedom and safety. In the last decade, researchers have documented growing threats and fear among:

To put it simply: anyone in America who seeks to contribute to the common good or even just access public goods must reckon with very real potential that they could face technology-enabled retaliation from governments, digital mobs, or the AI systems unleashed by those groups. In response, many people chose to avoid the public services and civic actions that they fear could trigger that retaliation — a chilling effect on their freedoms.

An admirable constellation of organizations exist to support people facing the direct impact zone of threats to civil liberties. In parallel to that important work, we also need comparable efforts to protect people from the shock wave of intimidation that prevents many from exercising those liberties in the first place. These protections can come from the courts, and from direct efforts to improve collective resilience in the face of intimidation.

Protecting Society from Chilling Effects in Courts and through Collective Resilience

In theory, courts can play an important role to challenge policies and technologies that cause chilling effects. But at a workshop CAT Lab organized last year on the science of civil liberties, litigators brought up the problem of causality faced by the Massachusetts churches challenging ICE. Without better evidence, litigators are losing court cases that seek to protect people from chilling effects.

The good news is that the very digital systems that have expanded threats to basic freedoms have also grown the potential to challenge those threats in the courts and grow community resilience.

We have an extraordinary opportunity for science to transform how courts think about the direct impacts and the shock waves of threats to people’s fundamental rights 

Historically, chilling effects have been hard to reliably study for two basic reasons. First, scientists have struggled to measure the rate at which people exercise their freedoms in practice. But as Lucy Bernholz explains in her book How We Give Now, our contributions to the public good are now minutely tracked by tech companies, data brokers, and the finance industry. The second hurdle to justice, as the religious groups learned to their dismay this April, is that litigators have struggled to establish causality. How do you prove that someone would have said something or taken some action if they weren’t facing a threat— and how do you answer that at scale?

Digital technologies have also given us access to potential breakthroughs on both issues. First, digital data systems have made it easier to measure chilling effects, giving scientists access to large datasets of social media, news articles, academic publications, location information, and charitable donations. Second, as Jon Penney and I recently argued in an article on Science and Causality in Technology Litigation, scientists now have far better statistical tools for causality than we did when the legal scholar Frederick Schauer first coined the term “chilling effect” in 1978.

As a result, we have an extraordinary opportunity for science to transform how courts think about the direct impacts and the shock waves of threats to people’s fundamental rights. The science we develop can also help bolster people’s collective resilience in the face of threats, even if courts dismiss the evidence.

Developing the science of civil liberties will require a substantial effort from scientists, funders, and people of good will who care about fundamental rights. We will need:

  • Networks of social scientists and technologists who are willing to cross boundaries to learn from litigators and civil society groups to think about civil and religious liberties beyond just technology or just behavior, as a socio-technical issue
  • New software that can collect reliable, large-scale data from the public and from public records while being resilient to government and corporate intrusion
  • Organizational structures that are resilient to government and corporate attacks

As I write this post, millions of people in America are wondering if it is safe to go to church, attend school, conduct a scientific study, take a medical appointment, or publish their opinion. More so than any time in our history, the answer on their safety is unclear. As a result, many are staying home, staying quiet, and shrinking their contribution to the common good. We have a once in a generation chance to change that, by filling a crucial gap in scientific evidence that can inform wider efforts to protect our basic rights.

If you are a funder, litigator, civil society organization, or scientist interested in developing this science together, I invite you to get in touch with me (nathan.matias@cornell.edu) and our Deputy Director Elizabeth Eagen (ee263@cornell.edu).

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