Against Notice Skepticism in Privacy (and Elsewhere)

INTRODUCTION What follows is an exploration of innovative new ways to deliver notice. Unlike traditional notice that relies upon text or symbols to convey information, emerging strategies of visceral notice leverage a consumer's very experience of a product or service to warn or inform. A regulation might require that a cell phone camera make a shutter sound so people know their photo is being taken. (1) Or a law could incentivize websites to be more formal (as opposed to casual) wherever they collect personal information, as formality tends to place people on greater guard about what they disclose. (2) The thesis of this Article is that, for a variety of reasons, experience as a form of disclosure is worthy of further study before we give in to calls to abandon notice as a regulatory strategy in and elsewhere. The requirement to provide notice is a very common method of regulation. (3) Notice mandates arise in everything from criminal procedure to financial regulation. (4) Although ignorance of the law is no defense, (5) there is a sense in which notice underpins law's basic legitimacy--as alluded to by Lon Fuller's inclusion of notice in law's internal morality (6) or Friedrich von Hayek's distinction between arbitrariness and the rule of law. (7) In the context of digital privacy, notice is among the only affirmative obligations websites face. California law and federally-recognized best practices require that a company offering an online service link to a policy. (8) The basic mechanism behind the requirement is that consumers read and compare policies in order to decide what services to use and otherwise exercise choices with respect to their information. (9) These decisions are to police the market by rewarding good practices and penalizing bad ones. (10) Officials select notice in part because they fear the effect of so-called command-and-control regulations on innovation and competition, (11) a concern that appears particularly salient when it comes to digital technology. (12) Thus, for instance, a ban on storing Internet search queries in the name of may interfere with the development of useful services that rely on long-term searching trends. (13) Officials also perceive notice to be cheaper, easier to enforce, and more politically palatable than restrictions on the flow of data. (14) And they recognize that consumer preferences are heterogeneous, such that setting a floor for in advance may prove difficult or arbitrary. Mandatory notice is understandably popular, but it is also controversial. Many criticize notice as ineffective or worse. (15) These skeptics point out that few consumers read policies and fewer understand them, and hence never become informed decision makers capable of protecting themselves or policing the market. (16) If anything, consumers see the legally required words and believe it means that the company has a policy of privacy and the consumer need not concern herself. (17) Some skeptics call for the abandonment of notice entirely in favor of the same substantive regulation on conduct the notice requirement sought to avoid. (18) The result has been a standstill in online law: regulators refuse to abandon notice as their primary regulatory mechanism despite growing evidence that existing consumer notices are ineffective. (19) Identifying a new generation of notice that may not be susceptible to the withering critiques commonly levied at traditional notice could lead to an important new regulatory tool in and elsewhere. To be clear, this Article does not recommend any particular solution for the issue of online privacy. Rather, it argues against an extreme skepticism of mandatory notice--a highly popular but much maligned regulatory strategy--by questioning whether critics or proponents of notice have identified and tested all of the available notice strategies. …