Abstract

AI-enabled State surveillance capabilities are likely to exert chilling effects whereby individuals modify their behavior due to a fear of the potential consequences if that behavior is observed. The risk is that chilling effects drive individuals towards the mainstream, slowly reducing the space for personal and political development. This could prove devastating for individuals’ ability to freely develop their identity and, ultimately, for the evolution and vibrancy of democratic society. As it stands, human rights law cannot effectively conceptualize this cumulative, longer-term, harm, and so cannot accurately evaluate the cost/benefit of AI tools, risking irreparable harm. As chilling effects impact individuals’ ability to live a good, self-determined life, the concept of human flourishing is relevant. This article engages with Aristotelian naturalism, the life-satisfaction approach, and the capabilities approach to determine which best resonates with the concept of identity as relevant to chilling effects and human rights law. It concludes that the capabilities approach may overcome some of the problems associated with the human rights law approach and may provide a framework capable of capturing both the intricate processes of free identity development and of conceptualizing the harm linked to AI surveillance. The challenge, however, is to ‘operationalize’ this approach.