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Against Notice Skepticsm In Privacy (And Elsewhere)

Requiring notice is an extraordinarily popular way to regulate. In online privacy, for instance, giving notice about their practices is among the only affirmative obligations websites face. The strategy is also one of the most heavily criticized. Not only does no one read privacy policies, skeptics rightly point out, but many believe that their mere existence guarantees certain base level protections that may or may not exist.

Should we give up on notice? My recent draft paper argues: maybe not. We should explore two possibilities, at any rate, before we do. The first is that regulators may sometimes select the wrong form of notice for the job. Today most website “terms” say that the company “may disclose data pursuant to lawful requests.” That does very little to further user understanding or action. But maybe it could work to:

  • Require a “warning” that email is about to pass 180 days into the territory of mere subpoena;
  • Require law enforcement or permit companies to “notify” targets of a subpoena so they can fight it; or
  • Require law enforcement and companies to “report” on the overall volume of subpoenas.

(I came up with these example after watching Kevin Bankston and Susan Freiwald’s excellent Electronic Communications Privacy Act talk here at CIS a few weeks ago.)

The second is that, in addition to the text and symbols we use for notice today, experience itself can be a form of non-linguist or "visceral" notice. Just as we might reintroduce engine noises into otherwise silent electric cars, so might we design websites in ways that make it clear from the user’s very experience what is happening with their data. This possibility is the subject of my part in an upcoming panel and workshop Chris Hoofnagle organized also featuring Alessandro Acquisti, Greg Conti, and CIS Junior Affiliate Scholar Woodrow Hartzog at UC Berkeley School of Law at the end of the month.

The point is not that notice can always do enough by itself to protect consumers and citizens. Only that it may still have an important role to play. More here. Your thoughts warmly welcome.

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