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Recent years have witnessed growing ubiquity and potency of state surveillance measures with heightened implications for human rights and social justice. While impacts of surveillance are routinely framed through ‘privacy’ narratives, emphasis- ing ‘chilling effects’ surfaces a more complex range of harms and rights implications for those who are, or believe they are, subjected to surveillance. Although ﬁrst emphasised during the McCarthy era, surveillance ‘chilling effects’ remain under- researched, particularly in Africa. Drawing on rare interview data from participants subjected to state-sponsored surveil- lance in Zimbabwe, the paper reveals complex assemblages of state and non-state actors involved in diverse and expansive hybrid online–ofﬂine monitoring. While scholarship has recently emphasised the importance of large-scale digital mass surveillance, the Zimbabwean context reveals complex assemblages of ‘big data’, social media and other digital monitoring combining with more traditional human surveillance practices. Such inseparable online–ofﬂine imbrications compound the scale, scope and impact of surveillance and invite analyses as an integrated ensemble. The paper evidences how these surveillance activities exert chilling effects that vary in form, scope and intensity, and implicate rights essential to the development of personal identity and effective functioning of participatory democracy. Moreover, the data reveals impacts beyond the individual to the vicarious and collective. These include gendered dimensions, eroded interpersonal trust and the depleted ability of human rights defenders to organise and particulate in democratic processes. Overall, surveillance chilling effects exert a wide spectrum of outcomes which consequently interfere with enjoyment of multiple rights and hold both short- and long-term implications for democratic participation. Keywords Surveillance, policing, human rights, chilling effects, democratic participation, self-censorship surveillance measures. In doing so, the paper seeks to Introduction offer several interventions into how surveillance practices Recent years have witnessed the growing ubiquity and are analysed in the digital era. This is pertinent given the potency of state surveillance measures. Much of this growth increased adoption of AI-enabled digital surveillance tech- has been driven by the increasing sophistication and decreas- nologies, and the absence of associated research into their ing costs of advanced digital technology. At the same time that impacts. As surveillance does not typically occur in an surveillance technologies have grown rapidly, their impacts exclusively digital context, it is hoped that a better and harms have been understood in relatively static terms, most commonly (albeit not exclusively) through the lens of ‘privacy’. Additionally, while much relevant scholarship has University of West London, Ealing, UK emphasised the tools and practices of surveillance, there University of Essex, Colchester, UK remains markedly less emphasis on the experiences of those Queen Mary University of London, London, UK University of Edinburgh, Edinburgh, UK subjected to such practices. Columbia University, New York, USA This paper examines the under-researched issue of sur- veillance in the Zimbabwean context. It evidences and Corresponding author: unpacks the chilling effects of such practices through the Pete Fussey, University of Essex, Colchester, UK. rarely heard voices of those affected by authoritarian Email: email@example.com Creative Commons CC BY: This article is distributed under the terms of the Creative Commons Attribution 4.0 License (https:// creativecommons.org/licenses/by/4.0/) which permits any use, reproduction and distribution of the work without further permission provided the original work is attributed as speciﬁed on the SAGE and Open Access page (https://us.sagepub.com/en-us/nam/open-access-at-sage). 2 Big Data & Society understanding of the impacts of surveillance will elucidate The human rights situation in Zimbabwe is well known, issues likely to arise in the AI-enabled digital era. As and instances of torture, arbitrary detention and enforced digital surveillance becomes more pervasive, and state sur- disappearance are widely documented. Those targeted veillance shifts from an individual (or small group) focus to include journalists, political actors, human rights defenders a society-wide capability, the societal effects of surveillance and ‘ordinary’ citizens. By contrast, state-sponsored sur- discussed here are likely to be particularly relevant. veillance in Zimbabwe is an issue veiled in secrecy, A principal focus of the paper concerns the empirical leading to misconceptions about the extent of surveillance identiﬁcation and analysis of the chilling effects of sur- and the actors involved. While detailed research and litera- veillance on the enjoyment and exercise of human ture on the role of surveillance in human rights violations is rights essential to the development of personal identity limited there has been growing attention brought to and the effective functioning of participatory democracy; digitally-assisted state surveillance practices in the region in particular, the right to freedom of expression, and the by civil society actors (see below) and through the media. right to freedom of assembly. Focusing on the links The latter, for example, has revealed how Chinese-backed between expression and assembly highlights that surveil- infrastructure projects in the region have included the lance is not only a matter of individual privacy or individ- export of advanced digital surveillance tools that are ual expression, but something with a direct impact at a increasingly integrated into state security apparatus societal level, particularly on democratic processes. (Parkinson et al., 2019). Through empirical evidence of Renewed emphasis on ‘chilling effects’ then, is argued ﬁrst-hand accounts, this paper contributes detail on the to surface a more complex range of harms and rights nature of surveillance in Zimbabwe while recording mani- implications for those who are, or believe they are, fest impacts of such practices – both actual and perceived subject to surveillance. As such, the paper intends that – on individuals and society as a whole aiming to facilitate a more developed, and evidenced, understanding of the a more nuanced understanding of the chilling effects of sur- chilling effect, and the impact this exerts on human veillance, and articulate the implications for core demo- rights protections, will facilitate a better understanding cratic rights such as the right to freedom of expression, of the consequences of surveillance while offering an and the right to freedom of assembly. initial evidential base to support future legal interven- The paper begins by setting out current understandings tions and planning for the AI-era. of the chilling effects of state surveillance practices. This Second, Edward Snowden’s 2013 revelations catalysed focuses on the deﬁnitional and epistemological debate con- a heavy emphasis on online and other platform surveillance cerning the identiﬁcation of the presence and impact of chil- in the academic literature. The incursion of such practices ling effects, and makes the case for a greater focus on into everyday life has been increasingly documented. in-depth qualitative research which reveals the nuance of Perhaps most commented on among these is Zuboff’s such effects and expands research into a greater breadth (2019) exegesis of how online surveillance has become of contexts. The research method is then outlined before the organising principle of capital accumulation in the moving on to the ﬁndings. digital age. This paper recognises that such analyses of Overall, the paper evidences the array of chilling effects indiscriminate and comprehensive online monitoring are experienced by those under surveillance in Zimbabwe. It indeed vital to understanding the circuits of advanced cap- argues that chilling effects should not be considered as italism, the reproduction of inequalities and the impact on holding a binary character – where they either exist or do individuals’ rights. However, it also argues that advanced not – but instead as a wide spectrum of outcomes which corporate digital monitoring practices should not be consequently interfere with the enjoyment of multiple regarded as an exemplar for all forms of contemporary sur- rights and have both short- and longer-term implications veillance. Emphasis on commercial surveillance practices for democratic participation. may risk downplaying the enduring role of state surveil- lance, as it arguably does in Zuboff’s work. This paper What is the ‘chilling effect’? argues that the reality for many in the global south is that the cheapness of surveillance labour has invigorated trad- The term ‘chilling effect’ has no universally agreed deﬁn- itional forms of human surveillance and these intersect ition. It is used in this paper to explain how the fear (or pos- with advanced online monitoring practices, resulting in sibility) that one is being watched affects an individual’s the emergence of new human-digital surveillance ensem- conduct, impacting behaviours such as what they say, bles. As a corollary, accounting for such socio-political what websites they visit, what materials they post, what contexts reveals the ‘reinstatement’ of the human – for comments they make, who they interact with, and if, or example, through the inﬁltration of closed and encrypted how, they engage in political opposition. First appearing platform communications – which may further undermine in McCarthy era US court cases, the term ‘chilling effect’ technology-focused solutions aimed towards protecting originated and remains most recognised in relation to adju- citizen’s rights online. dications of free expression. Chills can be both benign and Stevens et al. 3 invidious, with benign chills beneﬁcially deterring unlawful interfering with the collective exercise of rights. Despite acts such as hate speech or defamation (Townend, 2017). efforts of surveillance scholars to demonstrate and docu- Invidious chills, however, can be understood more widely ment the social control and discrimination enabled and as a deterrent effect created by surveillance activities, created by surveillance, others have argued that society which, through fear of persecution, punishment, or other still lacks a sufﬁcient ‘account of when and why surveil- harm, deters participation in activities – such as democratic lance is problematic to help us see when we should regulate life – which are typically protected or encouraged and when we should not’, and that what does exist fails ‘to (Kendrick, 2013; Schauer, 1978). It is, however, important speak in terms that are likely to inﬂuence the law’ to emphasise that an immediate fear of harm or punishment (Richards, 2013: 1935). Utilising the lens of chilling is not a necessary prerequisite for chilling effects to occur. effects responds speciﬁcally to this concern by enabling a In certain contexts, it may simply be that individuals do not direct examination of the impact of surveillance on wish to gain the attention of state authorities and so modify human rights protections. As a result, it not only facilitates their speech accordingly. As such, knowing or being suspi- a wider, more nuanced understanding of the consequences cious that state surveillance exists is itself considered by of surveillance but opens up possibilities for potential some sufﬁcient to create a demonstrable chilling effect legal responses. (Kaminski and Witnov, 2015; Solove, 2007). Within surveillance studies, self-censorship and modiﬁ- cations of individual behaviour following exposure to Identifying and accounting for the chilling effects surveillance have been theoretically framed, most promin- of surveillance ently through Foucault’s metaphorical application of the Panopticon. For Foucault (1977), Panopticism characterises Despite the emergence of ‘the chilling effect doctrine’ how a subject’s awareness of possible surveillance invites within the US courts, there has been little success in cases self-regulation, self-discipline and behavioural modiﬁca- which respond to state surveillance activities. Cases invok- tion. For some, this concept has attracted comparison to ing chills to constitutional rights have been dismissed due to chilling effects given how the presence of surveillance lack of standing (Penney, 2016), or because evidencing alone, absent any material coercive or oppressive applications, chills to fundamental rights has been problematic, with may stimulate self-censorship among subjects (Manokha, the results deemed ‘subjective’ (Laird v. Tatum, 1972) or 2018; Stoycheff et al., 2018). While Foucault’s metaphor for ‘too speculative’ (Clapper v. Amnesty, 2013). Similarly, pervasive surveillance is ubiquitous within academic com- the European Court of Human Rights has yet to really mentary, it has drawn detractors. These have variously chal- engage with the chilling effects of large-scale surveillance lenged its continued relevance (Haggerty, 2006) and – particularly at a societal level – and the effects of surveil- considered it an ‘unhelpful shadow on analyses of surveillance lance continue to be evaluated primarily through a right to and control’ (Fussey, 2013: 356). privacy lens. Furthermore, as Penney (2016) points out, this Perhaps the most relevant critique of panopticism – par- ‘judicial scepticism’ (Kaminski and Witnov, 2015: 482) ticularly as applied to ‘mass’ surveillance – concerns failure over the provability of chilling effects is not conﬁned to to emphasise the uneven distribution of the surveillance the courts but also persists throughout legal scholarship gaze and its varying effects across social locations. It also (Solove, 2007). This has created a particular challenge for assumes self-disciplinary effects, leaving questions regard- those seeking to ensure chilling effects-related harms are ing the extent to which subjects are ‘retrained’ and reinte- adequately reﬂected in litigation: how to prove something grated towards docility or ill-deﬁned norms rather than that did not happen would have otherwise occurred (e.g. excluded (Bigo, 2006). Panopticism also downplays participation at a protest), and that it did not happen deﬁant adaptations and acts of resistance following revela- because of a particular concern (e.g. state surveillance) tions of state surveillance, such as those following the 2013 (Solove, 2007). Snowden revelations (Horowitz, 2017). Notions of retrain- The difﬁculties in demonstrating deterrent effects, or the ing and conformity to the norm conceal the nuanced, subtle absence of action that may have otherwise taken place, has modiﬁcation of behaviour – rather than blanket silencing driven several attempts to empirically establish their exist- and conformity – that, for some, are characteristic of chil- ence (Kendrick, 2013). As a result, an epistemological ling effects (Kendrick, 2013; Stoycheff, 2016). As such, and methodological orthodoxy emerged asserting that if a panopticism has become a somewhat anachronistic, and chilling effect is to be identiﬁed, it must be independently therefore inadequate, lens for considering the surveillance and objectively measured (Canes-Wrone and Dorf, 2015; harms examined in this paper. Exploring the impact of sur- Penney, 2016). Quantitative research focused on measur- veillance through the wider reaching lens of ‘chilling ing changes in behaviour has therefore become prominent. effects’ therefore allows for accounts of behaviour change These include the impact on Google search trends to emerge beyond the individual under surveillance, exam- (Marthews and Tucker, 2014) or Wikipedia page views ining how the impacts resonate into the community, (Penney, 2016), following revelations of previously 4 Big Data & Society unknown government surveillance programmes. The insights challenge binary framings of chilling effects – Snowden revelations provided a useful comparator for where subjects are either deterred or unaffected by state sur- these studies, allowing assessments of online activity veillance – to reveal a more complex continuum of adaptive before and after their public disclosure in order to responses. examine evidence of behavioural change following new One of the largest studies of social movement surveil- knowledge of pervasive state surveillance. lance engaging over 70 US-based organisations revealed Surveys using experimental methodologies – with similar concerns regarding the breakdown of trust manipulated conditions designed to prime participants’ amongst activists as they feared inﬁltration (Starr et al., awareness of state surveillance before questioning them or 2008). The study highlighted diverse effects of surveillance monitoring their behaviour – have also been a popular on activist mobilisation, as participants reported reputa- method for attempting to demonstrate chilling effects. tional damage brought by implied criminality when targeted These studies have consistently reported that those primed with state surveillance. These impacts included difﬁculty in with information regarding government surveillance are accessing meeting spaces and funds, the deterrence of new less likely to engage politically online (Stoycheff et al., members and the avoidance of contentious issues. Adding 2018), share their views or make comments when holding further nuance to these non-individualised effects of sur- what they perceive to be minority opinions (Stoycheff, veillance, Starr et al. (2008) emphasised chilling of assem- 2016). Whilst these studies highlight important concerns bly as organisations struggled to survive, mobilise and regarding self-censorship, questions exist over the eco- maintain members once targeted. This is particularly sig- logical validity of such insights in their translation beyond niﬁcant given the centrality of these activities to the effect- experimental conditions. Others have argued how focusing ive functioning of participatory democracy, and their on the reduction of speech as a measurable phenomenon protection under international human rights law. Freedom only provides a ‘crude proxy for chilling’ (Kendrick, of expression plays a key role in facilitating the free 2013: 1678), obscuring the range and scope of surveillance exchange of ideas, allowing individuals to test different effects. forms of thought and in doing so to develop their identity Several qualitative studies have explored chilling effects and their political beliefs (Joseph and Castan, 2013). As in greater experiential detail. These have tended to empha- summarised by Bhagwat (2011: 978), ‘[w]ithout speech, sise experiences of disproportionately affected populations, democracy would be impossible because citizens would and those – such as members of protest, opposition or pol- have no way to discuss and form their views, including itical movements – whose position in society elicits a their views about the conduct and competence of public concern that they will be targeted with surveillance. ofﬁcials.’ Freedom of assembly guarantees the right to Among these, studies of journalistic practices after gather peacefully, indoors or outdoors, and in public or Snowden reported changes in relationships with conﬁden- private (Kudrevicius and Others v. Lithuania, 2015). As tial sources (Lashmar, 2016; Waters, 2017), ‘“chilling” such, freedom of assembly is closely related to freedom the ﬂow of information’ to journalists (Lashmar, 2016: of expression and is considered to protect that right’s col- 682), and increasing vigilance and security measures lective component (United Communist Party of Turkey adopted to protect sources (Waters, 2017). and Others v. Turkey, 1998). Together these rights are Other research has focused on the surveillance of minor- essential to democracy, as they facilitate the emergence of ity communities with the NYPD’s Muslim Surveillance new ideas, engagement with those ideas, advocacy and Program serving as a particularly stark example. Ali’s protest in pursuit of change and transparency and account- (2016) ethnographic study with Muslim students and ability in governmental decision making. community organisers revealed notable harm and increases in self-disciplinary behaviours. These included self- Surveillance in Zimbabwe censorship, particularly regarding political conversations, with a fear of informers highlighted for creating a ‘fractur- In Zimbabwe, state surveillance is shaped by a complex ing of inter-community trust’ damaging any potential for ensemble of statutes, agencies and extra procedural political mobilisation. Research with UK activists targeted practices of which many are politically motivated by undercover police surveillance captured similar out- (Munoriyarwa, 2021). Among these, the Interception of comes, including experiencing a fractured sense of reality, Communications Act (ICA) (2007) sets out the legal basis caused through fear and paranoia and a need to question for state authorities to conduct communications surveil- every personal encounter and relationship (Stephens lance and implicates commercial telecommunications Grifﬁn, 2020). Stephens Grifﬁn (2020), however, prefers providers in the interception and storage of private commu- the term ‘derailing’ to ‘chilling’ to describe the impact sur- nications. Research addressing chilling effects brought by veillance had on activists, claiming that whilst surveillance the ICA on journalism in Zimbabwe has demonstrated created difﬁculties, decreased opportunities and forced how metadata retention clauses included within the Act shifts in focus, activists did not abstain completely. Such have manufactured fear among journalists, increased self- Stevens et al. 5 censorship and limited their access to sources. Journalists public institutions, who are exposed to intensive surveil- feel that the legislation is tailored to focus on activists and lance in order to ensure compliance to fulﬁl the will of journalists speciﬁcally to instigate fear and paranoia and the state (Maringira, 2017; McGregor 2003). Oversight of interfere with their reporting (Munoriyarwa and Chiumbu, many of these state practices is largely non-existent, and 2020). surveillance is therefore conducted with impunity. The Reports that Chinese telecommunications company lack of any legal framework to regulate ofﬂine surveillance Huawei has been instrumental in enabling several States – makes this form of surveillance extrajudicial, in effect including Zimbabwe – access private communications of granting the state unfettered powers in this area. A crucial political opponents and their supporters adds to these con- question here concerns how the unregulated and unaccount- cerns (Parkinson et al., 2019). They also highlight the able surveillance practices arising from such statutes impact role of third-party actors in the provision of state surveil- individuals to whom they are intended to target. lance capabilities and the subsequent impact on democratic participation. Similar questions of private operators are Methodology raised over tactics of ‘digital authoritarianism’ such as cen- sorship and internet shutdowns (Mare, 2020) in addition to Research for this paper was comprised of semi-structured more targeted surveillance tools such as the Pegasus tech- interviews with key-informants holding direct experience nology offered to governments by Israeli security of state-sponsored surveillance in Zimbabwe. Participants company NSO Group (Amnesty International, 2021). In can be variously identiﬁed as human rights defenders, the context of shutdowns in Zimbabwe, telecoms providers civil society leaders, members of opposition political have been coerced into becoming enablers rather than resis- parties and those working in the media. Together they tors of state desires through strategic uses of ‘lawfare’, har- represent individuals who have both been targeted by assment and threats of violence and imprisonment (Mare, state surveillance and who also conduct work or activities 2020). The extent of state-owned infrastructure also which aim to hold the state and ruling party to account. further complicates the relationship between the state and They therefore occupy a unique position to provide private actors, as internet service providers continuing insight into how the ruling party in Zimbabwe uses surveil- operations are subjected to the whims of that state. lance against dissenting voices and its impact on them and Research has, however, also highlighted the important their activities. role of online platforms for organising and mobilising These interviews were supplemented by a range of docu- protest in Zimbabwe (Karekwaivanane and Mare, 2019). mentary sources including court documents, media report- While not speciﬁcally focusing on the impact of surveil- ing and documents from civil society groups which lance on activism, Karekwaivanene and Mare (2019) provided valuable insight into the operation and impact of suggest growing suspicions of online inﬁltration by govern- state surveillance in Zimbabwe. In addition, as the data ment agents within online spaces. As developed in the ana- reveals, chilling effects are highly subjective and deeply lysis below, such fears subtly erode the democratic and personal experiences. As such, interview questions were deliberative potential of online spaces and deter their use formulated openly and broadly to access the details of par- for democratic participation. ticipants experiences as they felt they were best described. Digital surveillance in Zimbabwe is also accompanied Accessing participants who have been subjected to state by a range of national security, or public safety focused surveillance and who remain at risk of state coercion is a legislation, invoked as a basis to conduct surveillance on difﬁcult and delicate task. Participants were approached activists and to restrict the right to freedom of assembly. and recruited through local networks, where access was These include the recently repealed Public Order and achieved through longstanding engagement with human Security Act (2002) and its successor, the Maintenance of rights defenders in the region. In total 12 interviews were Public Order Act (2019). The latter remains extremely conducted, 11 match the proﬁle described above with one restrictive with any gathering over 15 people and deemed additional supplementary interview with a state security ‘political’ in nature requiring permission, which is fre- agent who provided insight into the practices of state sur- quently, and often selectively, denied. Such instruments veillance. While this is a relatively small sample, access have been used as a means to crack down on civil society to such communities is extremely rare and similar-sized organisers and groups such as students, with reports of cohorts are not unusual within this area of research. arrests and violence for violating these laws (Gukurume Several other potential interviewees were identiﬁed and 2019). Acts such as these also contribute to the heavy pres- either declined or did not respond. This is an understandable ence of surveillance on university campuses ‘deployed to position, given how the ﬁndings presented later, and else- whip political dissent into line’ which results in a fear of where (Gukurume, 2019), demonstrate the erosion of trust being watched and censorship permeating all aspects of uni- towards new individuals as a result of experiencing state versity life (Gukurume 2019: 776). Such acts are character- surveillance. In this sense, research into surveillance chil- istic of wider processes present in Zimbabwe of discipling ling effects is, to an extent, chilled. Accessing participants 6 Big Data & Society willing to discuss their experiences becomes incredibly dif- ways, indicating that chilling effects similarly comprise ﬁcult due to suspicions created by the surveillance they complex and profound forms. As such, the intricate imbri- have encountered and is often only rendered possible cations between state and non-state, digital and non-digital through trusted prior connections and networks. This forms of surveillance are key to understanding the chilling makes the accounts of those who are willing to participate effects of surveillance in the Zimbabwean context. Before particularly valuable, as demonstrated by research using addressing these impacts, this section delineates the forms similar sample sizes that offer important qualitative of surveillance experienced by the participants, providing insights into the resultant impacts of state surveillance the context for their accounts. (Munoriyarwa and Chiumbu, 2020; Stephens Grifﬁn, 2020; Waters, 2017). Complex collaborations: State and non-state actors. In Zimbabwe, the abduction of human rights defenders typically involves kidnappers handing victims to the police before becoming Ethical considerations invisible to any legal scrutiny. The high proﬁle and well- documented case of one participant is particularly illustra- Participants were fully briefed regarding the aims and tive of this process. After weeks of being held incommuni- purpose of the research, allowing them to give their cado, they and others ﬁnally appeared at various police informed consent to participate. Many of the interviewees stations and were charged with undergoing military training are high proﬁle political activists in Zimbabwe who have with intent to overthrow the government. They described publicly challenged the government, and been subject to their experience of surveillance leading up to the abduction, physical abuse as a result. Their greater expertise on the vul- nerabilities of taking part in the research was sought and The type of surveillance that I have experienced… involved incorporated into the overall ethics process with partici- State agents watching me at my house for about ten days…I pants having further opportunity to identify any part of was not aware of this, and the sad thing is that they ‘greased their interview they did not want published. Additionally, the palms’ of my helper who used to help me with the even in cases where participants noted that they were garden. So, they were communicating with him, and they happy to speak on record – as several had in the past – spent several days coming in and out of my house, pretend- the decision was made to keep accounts anonymous, enab- ing at times that they’ve had a puncture just for them to be ling continuity with those who had requested anonymity. able to see what was happening at my house. I think that Names and identifying details have therefore been there had been prior arrangements made before my abduc- changed throughout. tion (Participant 8) Research which focuses on the targets of surveillance has the potential to increase or create further vulnerabilities In a more recent case, Tawanda Muchehiwa was simi- for participants (Ali, 2016), as it could expose strategies of larly abducted and kept for more than 48 h before being avoidance or even allow a state to better understand which handed over to the police (Sparks, 2021). Following the tactics are most effective in controlling or silencing citizens. abduction, local investigative journalists produced evidence Careful reporting of the ﬁndings and balancing these con- that a rental vehicle from a local car hire company was used cerns with revealing the impact of surveillance and allowing to monitor and kidnap him, later a court ordered the participants to have their stories heard and harm documen- company to turn over documentation relating to the identi- ted in a way that may enable surveillance practices to be ﬁed vehicle (Mabuza, 2020). That no arrests for the kidnap- challenged in future, was therefore of consideration pings have been made indicates complex collaborations of throughout the entire project. formal and informal surveillance actors. Other participants’ accounts of surveillance repeatedly Findings pointed to the reliance of state intelligence operations on informal actors. Elaborating on this, an interviewed state Forms of surveillance security ofﬁcer conﬁrmed the existence of multiple levels State surveillance activities in Zimbabwe implicate of surveillance. Crucially, one reason for the widespread complex assemblages of state and non-state actors involved use of human informants is linked to labour costs in in diverse and sometimes hybrid online and ofﬂine monitor- Zimbabwe: the labour of human surveillance is cheaper ing practices. As the data demonstrates, even unambiguous than in other jurisdictions and, in many cases, cheaper state surveillance activities by specialist intelligence units than engaging in more technical forms of observation. involve the co-option of third-party and ‘informal’ ele- This represents an inversion of what is experienced in ments, sometimes amounting to a form of ‘surveillance other jurisdictions where digital surveillance is attractive by proxy’. Moreover, the range of potential bodies and as it becomes comparatively cheaper to collect and organisations available for co-option into surveillance analyse data at scale, and where human labour costs are pro- assemblages affects targets in complex and profound hibitively expensive. This brings a new dimension to the Stevens et al. 7 surveillance of online-hosted communications too. Rather identiﬁcation of the ‘net-widening’ outcomes of new than requisitioning data sets through bulk surveillance control measures, constituting an extension, rather than powers, the availability of cheap labour that can be replacement of, extant surveillance practices. For deployed for state surveillance can inﬁltrate private commu- example, this type of inﬁltration was repeatedly cited by nications in different ways, one which subverts the encryp- participants as occurring ofﬂine at gatherings and meetings, tion protocols embedded in digital platforms. even running as deep as intimate relationships. As one activist described, Surveillance labour in the global south: The inﬁltration of platform communications. The inﬁltration of seemingly private I had an intimate relationship with one of these agents, who digitally-hosted discussions challenges the distinction used a false name, and he would never let me see his iden- between surveillance of online and ofﬂine spaces. tity documents. At one time I saw him when there was a Participants raised concerns about the inﬁltration of civil demonstration and he had called me before the demonstra- society by unknown informants passing information to tion to ﬁnd out if I was going…I lied and said that I was the authorities. This fear was grounded in the knowledge busy at home, but I attended the demonstration, and while of increasing numbers of arrests directly resulting from con- I was there, I saw him there. This incident made me tents of WhatsApp messages (Majama, 2016). This is espe- realise that I was under surveillance and that the surveil- cially common vis-à-vis ill-deﬁned offences of insulting the lance was at a very personal level…I started seeing president under the Criminal Code or sending malicious shadows everywhere, even when I would go out with messages under the Postal and Telecommunications Act. friends for drinks, I would leave without saying goodbye In one such incident, Zimbabwe Lawyers for Human because I felt like I was constantly being watched. Rights (2020) reported that Abraham Baison was arrested (Participant 11) and charged with undermining authority of the President by allegedly circulating a message on WhatsApp accusing Such accounts reveal how this form of government sur- him of ineptitude. The nature of these complaints and veillance asserts ancillary affects. Beyond the direct sup- arrests indicates that WhatsApp and Facebook groups, pression of individual rights, interpersonal trust becomes while considered ‘closed’ and ‘conﬁdential’ by their parti- a distinct casualty of such forms of surveillance, affecting cipants, are routinely inﬁltrated, and monitored. the rights to freedom of expression and assembly at a Other participants emphasised how this type of surveil- group level. Additionally, as the surveillance net widens lance in virtual spaces was made possible as people consid- and practices extend to new contexts, a greater number of ered them private spaces shared only with friends and individuals become effected by such activities. consequently communicated with less caution: Transgressions which may have previously been considered less signiﬁcant to the state become easier to capture and act there is a false sense of security that comes with being upon, as demonstrated by the examples of comments posted online in that many people think that they are on the internet by ‘ordinary’ citizens to ‘trusted’ WhatsApp groups, widen- and so they will not get arrested… People think they are ing any potential chilling effect to an increasing number of talking amongst friends because a WhatsApp group is citizens. usually for friends …I have an uncle who was arrested for sharing a fake prayer about the former president in a Intentional chills. Participants’ experiences also revealed WhatsApp group a few years ago. The prayer is something how social media information is frequently used by state that he would never have shared in a public place like a pub actors to intimidate through direct reminders of state sur- or church, but because he thought it was safe to share veillance capabilities. among trusted friends on a WhatsApp group, he lowered For example, during a visit to a police station to submit his guard and yet someone reported him to the police. prior notiﬁcation for a meeting of more than 15 individuals, (Participant 12) one respondent was about her social media posts, instead of the meeting. She remarked, ‘I would be asked about my Several interviewees described such inﬁltration of posts on social media, why I posted that opinion, what it digitally-hosted forums as a reformulation and extension meant and what my intention of posting them was. This is of pre-digital surveillance techniques, noting that, ‘It is sheer evidence of online surveillance’ (Participant 4). the same method that was used in beer halls and in Such practices reveal a further component of the chilling church gatherings…but only now they are using the same effect, one underplayed in much of the literature: how techniques in the virtual space…As soon as people get com- state surveillance is used to assert intentional chilling fortable enough to speak, screenshots are taken and then effects. This experience was common among participants used to arrest them.’ (Participant 10) and such attempts at inducing intimidation took many Whilst this incursion into digital spaces marks a novel forms. Sometimes this was done through unsolicited form of state inﬁltration, it echoes Cohen’s (1985) anonymous messaging, such as that sent to a Harare 8 Big Data & Society based activist shared on social media (Figure 1). At other approach. As one interviewee reﬂected, this creates a times, surveillance data would be produced during police sense of doubt and undermines attempts to organise, interrogations, serving as a direct reminder that individuals were being watched. Additionally, such capabilities are I also think that in as much as we say that WhatsApp is a publicly announced by the state, demonstrated by the infor- great tool for communicating it has also been a great tool mation minister’s recent remarks that they have ‘a cyber- for surveillance and the instances where discussions team that is constantly on social media to monitor what we’ve had on WhatsApp have been leaked to the media people send and receive’ (quoted in Mathanda, 2021). show that it is no longer a safe space to organise and Such tactics are not new, and previously publicised inci- mobilise dents serve as a reminder of state capabilities, reinforcing their threat. For example, in 2007, the state covertly This section has highlighted the key aspects of surveil- ﬁlmed the bedroom of then Catholic Archbishop Pius lance practice in Zimbabwe. First, how surveillance is Ncube, an open critic of the ZANU-PF regime. Secret used to inﬁltrate ‘trusted’ spaces, extending the reach of sur- cameras recorded him engaged in sexual intimacy, later veillance – and thus chilling effects – beyond traditionally broadcast on prime-time news (McGreal, 2007). Ncube targeted groups and into the general public. Second, it resigned and stopped publicly commenting on political demonstrates how publicising surveillance practices is matters. This served as an effective warning to other used to intimidate and intentionally chill activist activity. clergy that had been critical of the government. Referring The following section outlines how these activities generate to the incident sometime later, the state security minister new surveillance possibilities and diversify the impacts of at the time stated with impunity, such measures on their targets. In doing so, it reveals how these arrangements create an enduring plurality of chilling effects, demonstrating the impact on both individuals’ be careful not to denigrate our president; we will visit your rights to freedom of expression and assembly, as well as bedrooms and expose what you will be doing. We have our the ability of groups to engage in collective democratic means of seeing things these days…So, no one can hide action. from us in this country. (quoted in Kahiya, 2014) The leaking of WhatsApp group discussions to the The effects of surveillance media also serves as a public demonstration of this Participants were consistent in articulating the impact of surveillance on their lives and behaviours, both personally and professionally. Changes to behaviour evidencing a ‘chilling effect’ vary yet included: greater restraint in polit- ical conversations, increased self-censorship, limited par- ticipation on social media, ampliﬁed awareness of surroundings, eroded interpersonal trust and restricted eco- nomic participation through limited access to work and informal ‘blacklisting’. These impacts directly affect the rights to freedom of expression and assembly. One principal driver of these chilling effects was a fear for personal safety and security: There is a lot of fear. People can see the brutalisation that is happening to activists now and they have opted to stay quiet for their own protection. One of the reasons we have never really come to a point where we all revolt is because too few people consider it as a risk that is worth taking. Not a lot of people are willing to comprom- ise their safety and the safety of their families, they would rather just conform and not be involved in those discus- sions. The risk of surveillance has cowered people into submission. (Participant 11) This is exacerbated for those already subjected to such con- sequences, who reported an enduring sense of insecurity Figure 1. Intentional chilling effects and WhatsApp intimidation. and fear; “I no longer feel safe in public areas, especially Stevens et al. 9 with my proﬁle and I think other victims of surveillance feel On several occasions, I would ﬁnd myself writing posts and the same way.” (Participant 6). deleting them several times. I started self-censoring on my individual accounts and censoring the organisation. Another female activist who became romantically (Participant 4) involved with someone secretly monitoring her revealed the pernicious nature of surveillance conducted in the intim- Impacts on freedom of expression also hold downstream ate spheres of life: consequences that are often undocumented. In one case, this affected the ability to work and acquire viable income As a woman activist, your whole life changes and that streams for those in the creative arts: affects your well-being. It has been very difﬁcult, and it has scared away most people who thought they were acti- We are afraid to exercise, especially, our right to freedom of vists and who were coming up as activists… we are living expression, which has had a great impact on our artistic examples of what state security can do to destroy you work. We are afraid that if we express our opinions, we through surveillance. (Participant 11) risk being labelled enemies of the State. So, we either censor ourselves and in some instances have had to turn The data below further reveals the complex manifesta- down some clients because we are afraid that even if they tions and, crucially, gradations, of chilling effects. While are willing to pay us good money, the risk of clashing routinely characterised in binary terms – for example as with the authorities is high. (Participant 6) an individual either being ‘chilled’ towards self-censorship or not – the data reveals subtle impacts and interplays on Partial mitigation strategies to counter the chill on speciﬁc rights and behaviours that are not just individual freedom of expression have emerged. For example, some but also vicarious and collective. activists have taken on a ‘brokering’ role, intended to draw surveillance on them, and away from peers considered as more vulnerable: Freedom of expression. Freedom of expression is widely regarded as ‘one of the essential foundations of a demo- about a third of the stuff that I tweet does not come directly cratic society and one of the basic conditions for its progress from me, people send me information that they are afraid to and for each individual’s self-fulﬁlment’(Axel Springer AG share and ask me to open up a conversation on the issue. v. Germany, 2012), given its centrality to human develop- These include people that I interact with in civil society, ment and its essential role in securing other rights, government, and the private sector, who for one reason or through debate, advocacy and protest. As noted by the the other feel that they cannot freely or openly speak on European Court of Human Rights: an issue… Surveillance has affected the way people interact with each other and the way they comment on issues. Democracy thrives on freedom of expression. It is of the (Participant 3) essence of democracy to allow diverse political pro- grammes to be proposed and debated, even those that call Although a courageous workaround given the circum- into question the way a State is currently organised stances, the need to adopt such measures highlights the (Centro Europa 7 S.R.L and Di Stefano v. Italy, 2012) extent of interference with the right to freedom of expres- sion in Zimbabwe. This will have a profound impact on Chilling effects on freedom of expression are therefore individual’s ability to participate in democratic life and to particularly pernicious, as they strike directly at individuals’ pursue political change. ability to develop their own identity, and to effectively par- ticipate in democratic life. Common to other manifestations of surveillance chilling Freedom of assembly. Freedom of assembly is also regarded effects, the impacts on the right to freedom of expression are as central to democratic life. It ensures that individuals can varied in form and intensity. For some, this restraint on expres- organise and mobilise, come together to test or challenge sion involves a constant and conscious modiﬁcation of speech: ideas, gauge support for, or opposition to, different propo- sals, and pursue political change. As such, it is regarded I always practice what I would call self-censorship. as the collective exercise of the right to freedom of expres- I carefully construe how I communicate on certain issues sion (Human Rights Committee 2020). The extension of and discuss them in a way that does not provide an oppor- chilling effects beyond the individual to affect the collective tunity for surveillance to become actionable. (Participant 1) is a central theme throughout the data and demonstrates the wider impact of surveillance across social settings. In their Restrictions on freedom of expression also extend most obvious form, individuals are reluctant to participate beyond the individual and may impact how organisations in protests, meet with particular people or groups or join participate in public debate: speciﬁc organisations; these wider impacts directly affect 10 Big Data & Society strained, and this also extends to my immediate family. the right to freedom of assembly. The data further reveals (Participant 1) how this animates an erosion of interpersonal trust, builds a sense of vicarious victimisation, generates isolation Trust is a critical ingredient in social activism. through the loosening of community bonds and advances Respondents consistently highlighted how interpersonal an overall weakening of democratic participation. As one trust is a foundational pre-requisite for most democratic par- participant stated, ‘expressing oneself on public or social ticipation and advocacy work. However, the climate of sur- fora puts you in the spotlight, and may land not only you veillance combined with genuine prospects for reprisals into trouble, but also those that associate or follow you.’ exerts particularly far-reaching effects on the establishment (Participant 6) and maintenance of such trust. As one participant indicated, Linking with the above accounts of non-state actors ‘surveillance comes from all angles – from the state and becoming co-opted into formal surveillance practices, the even from among us’. (Participant 11) pervasiveness of surveillance exerts a toll on interpersonal Consequences of eroded interpersonal trust on the ability trust. This, in turn, impacts personal and professional rela- of activists to mobilise and engage in democratic debate tionships and the ability to work in a normal way: were also consistently highlighted, Over the past year, about three or four people that I work Organizing and mobilizing have been severely affected with have told me that they have been offered money to because of surveillance. Instead of organizing and mobiliz- give information about me and my activities… I have ing for big demonstrations, we then resorted to just organ- also encountered a situation where one of my employees izing amongst trusted friends and having the said that a journalist had introduced them to a state security demonstrations as a small group because we cannot trust agent who wanted to get information about me…I ﬁnd I am many people getting involved and take the risk of having at a point where I cannot trust my own colleagues in the the demonstration stopped or exposing the main organisers. sector. I cannot afford to leave my ofﬁce unlocked when I Surveillance makes you trust no one. (Participant 11) go to the toilet, I cannot take my cup of coffee and leave it in the kitchen because I am always afraid that someone Building on the evidence of compromised social media will poison it. (Participant 3) platform communications above, prospects of surveillance in these ‘closed’ spaces heavily depletes trust within and The feeling that close acquaintances may be implicated between activist networks, who regard each other with in targeted surveillance practices exerted signiﬁcant increasing suspicion. Many expressed how such trauma and lifestyle alterations on individuals. Accounts surveillance-induced reductions in trust has curtailed their of how everyday activities acquired precautionary framings ability to participate in democratic debate and has heavily were common across participants: restricted the ability to organise. Such accounts further emphasise the importance of I think the biggest thing…is that you change your behav- recognising how chilling effects extend beyond individuals iour, you change where you go and who you see. Instead and assert collective impacts: of mixing and mingling freely, you are always looking over your shoulders. For example, for something as you will ﬁnd threats and fearmongering in WhatsApp stupid as going to the toilet while drinking in a pub, you groups where you are reminded of arrest if you insult the must think whether you should ﬁnish off the drink or take President… it’s been a great strategy in ensuring that the it with me…That is the kind of thing that surveillance trust level is lowered in terms of the interactions online. does. (Participant 12) Like sometimes you literally need to know who you are speaking to, who are your recent followers, and when did A common experience was the social ostracisation of they start following you, what was happening around that activists, compounded by the internalisation of an outsider time? I think just increasing the level of distrust is enough status. This asserts a further toll on the ability to build and to ensure that there isn’t an effective ofﬂine movement. maintain connections, which permeated into the closest of (Participant 7) relationships: I have family members who I am no longer sure about. I do (dis)Association/blacklisting. Those placed under surveillance not know where they stand, politically. There are also are subjected to complex processes of isolation and exclu- members whose actions sometimes appear to be unclear, sion. For example, compounding internal behavioural mod- and I ﬁnd myself withdrawing from them. Even my rela- iﬁcations – such as self-censorship and a reluctance to tionship with my partner is affected, because of the percep- engage with others – surveillance targets found themselves tion that I am under surveillance your relationship is blacklisted and ostracised. For example, one participant Stevens et al. 11 who endured a publicised abduction and torture then found also demonstrate how chilling effects are not only highly their corporate and commercial contracts evaporated: diverse but are negotiated in subjective and individualised ways. The long-term effects of a surveillance-related At some point, the organisation was targeted for [material] chilling effects are potentially profound. An erosion of that was seen as anti-establishment… after that incident, the rights to freedom of expression and assembly will some corporates and organizations that we used to work result in the erosion of democratic life itself, and an or partner with, now do not want to associate with us entrenchment of the status quo. because they are afraid of being labelled enemies of the State as well. (Participant 6) Discussion and conclusion: Imbrications While private actors are quick to avoid those targeted (or of traditional and advanced digital at risk of being targeted) by the state, civil society groups surveillance also reported the need to distance themselves from such individuals or organisations. This not only erodes solidarity State surveillance practices in Zimbabwe are diverse, and collective activity among civil society groups, but expansive and permeate throughout everyday life. underlines the wider, vicarious and collective impact of sur- Drawing on the experiences of those interviewed, the ﬁnd- veillance. One participant experienced a similar dynamic ings reveal how state inﬁltration, and its impacts, penetrate whereby several women’s rights organisations actively dis- an increasing array of physical and digital spaces, widening tanced themselves from her organisation following her the pool of potential surveillance targets, and capturing an arrest: ever-greater range of acts designated subversive. The availability of cheap labour in Zimbabwe facilitates My opinion on surveillance is that it has affected the way the practice of using informants to inﬁltrate virtual spaces, our audiences engage with our group. So, you will ﬁnd rendering useless the technological protections of authenti- that even the comments on our platforms have taken a sig- cation and end-to-end encryption associated with the use of niﬁcant dip after my abduction, as they risk being accused such platforms. Such practices not only represent a blurring of having views that are contradictory to the government. of online and ofﬂine tactics but also represent an inversion People are now afraid to partner with us, to comment on of practices in other jurisdictions, where labour costs our projects and there is a fear of adopting our doctrines. are prohibitively expensive and so digital surveillance People are now afraid to associate with [us] and with me becomes increasingly attractive as a cheaper, more conveni- as a person. (Participant 6) ent tool. Such practices resonate with the growing phenom- enon of ‘data janitors’, employed in low wage labour The depleted trust and disassociation between those con- economies to make sense of data rich environments, and nected to anti-state activities severely compromises the cap- their deployment in authoritarian contexts, such as the acity of civil society groups to mobilise and to engage in repression of Uighurs and Kazaks in Xingjian (Byler, advocacy work: 2022). This recognition of differing practices reinforces the I think it has affected the ability to mobilise and organise to importance of studying wider contexts, to reveal diverse a large extent.… As a member of a social movement, you and currently unexplored manifestations and impacts of draw attention to yourself, and people begin to disassociate state surveillance. This broadens discussions hitherto domi- from you. I think surveillance has affected the effectiveness nated by the impact of automated large-scale monitoring of social movements. Right now, most activists are in programmes, such as those revealed by Edward Snowden hiding… surveillance easily discourages active and effect- (e.g. Penney, 2016; Stoycheff, 2016), and unpack how ive participation in democratic processes in Zimbabwe. state surveillance is enacted, experienced and negotiated in (Participant 4) different jurisdictions and through different subjectivities. These ﬁndings have, however, also drawn clear parallels These accounts of activists and human rights defenders with research focused on the targets of state surveillance in Zimbabwe reveal how surveillance chilling effects elsewhere, including the US and UK (e.g. Ali, 2016; Starr extend beyond the individual to implicate civil society net- et al., 2008; Stephens Grifﬁn, 2020). In particular, similar- works and the wider social body, undermining trust, and the ities in harms experienced by those who ﬁnd themselves ability to engage in democratic processes. At an individual subjected to surveillance are revealed, even if negotiated level, chilling effects implicate a range of rights beyond the in different forms, and resulting in different consequences. right to private and family life, including freedom of expres- As in these studies, this paper demonstrates how interper- sion and assembly, the effects of which are also felt at a sonal trust has become a distinct casualty of state surveil- group level, implicating the effective functioning of demo- lance practices (Ali, 2016; Stephens Grifﬁn, 2020). Yet, cratic processes. These differing accounts of those targeted such effects are exacerbated in Zimbabwe by the pervasive 12 Big Data & Society concern of the presence of informers in almost all contexts and intentional cultivation of surveillance chilling effects both online and ofﬂine. The breakdown of trust, question- thus reveals a further act of bad faith: the repeated denial ing of even the most intimate relationships, the withdrawal that such effects exist at all. This critically undermines the from social life and social media, and a desire to keep fallacious ‘nothing to hide/nothing to fear’ justiﬁcation for circles small, exerted a discernible toll on participants as extended surveillance practices, often expressed by state they reported increasing caution and reconsideration of governments and intelligence agencies the world over. every interaction and relationship amid a climate of That a chilling effect is intentionally induced as a deliberate ambient distrust. This damage to trust worked in other strategy is itself undeniable evidence of its existence and ways too, as peers sought distance through fear of becom- potency and must be confronted. ing surveillance targets themselves, resulting from their The experiences of those interviewed for this paper dem- association, however tenuous. This severely limits oppor- onstrate that surveillance chilling effects extend far beyond tunities to organise, preventing democratic participation the suppression of individual rights. Beyond privacy, rights and possibilities for advocacy work. Such effects demon- to freedoms of expression, and assembly, are directly strate clear and pernicious impacts of state surveillance engaged, reverberating such effects from the individuals that require mitigation through law and regulation. targeted to impact wider society and the functioning of Moreover, such clear evidence of the profound real-life democratic processes. This suggests that chilling effects consequences for those targeted by state monitoring prac- created by surveillance must also be viewed and interro- tices mean that surveillance chilling effects cannot be sum- gated as a societal issue, and not one which stops at individ- marily dismissed as speculative, as they have in recent ual modiﬁcations of behaviour. This has important judicial and Congressional processes (Clapper v. Amnesty consequences as we move towards more pervasive, Int’l, 2013; Wikimedia Foundation v. NSA 2021). It also AI-assisted, surveillance. Current debates regarding the points towards a need to do more to challenge the ‘legal deployment of AI technology typically focus on privacy and judicial scepticism’ (Penney, 2016) of subjective and discrimination. This risks undermining the overall experiences of state surveillance as a credible source of evi- impact of surveillance. Speciﬁcally, while a chilling effect dence for chilling effects that currently inform such think- may be almost imperceptible over the short term, it may ing (Kendrick, 2013; Solove, 2007). be dramatic in the long term, fundamentally undermining Not only does attention to this space establish the exist- democratic processes. This suggests the need for further ence and impact of surveillance chilling effects but, import- qualitative research vis-à-vis the impacts of surveillance, antly, it contributes key insights into their diverse forms and and an incorporation of this research into surveillance- dynamics. As a result, this paper concludes that, while clear related decision making. incidences of the chilling effects of state surveillance activ- ities are identiﬁable, such outcomes are not deterministic, Declaration of conﬂicting interests binary or necessarily predictable. Instead, chilling effects The author(s) declared no potential conﬂicts of interest with respect assert themselves in highly diverse ways (directly, indir- to the research, authorship and/or publication of this article. ectly and vicariously), become projected onto different audiences and manifest through different harms. Debates Funding surrounding the chilling effect of state surveillance must The author(s) disclosed receipt of the following ﬁnancial support therefore be extended beyond discussions of the presence for the research, authorship and/or publication of this article: or absence of speech, and harm must be considered more Research for this paper was supported by the Economic and widely than through the lens of privacy or freedom of Social Research Council funded [ES/ M010236/1] Human expression alone. 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Big Data & Society – SAGE
Published: Jan 1, 2023
Keywords: Surveillance; policing; human rights; chilling effects; democratic participation; self-censorship
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