Froomkin, A. Michael --- "Privacy Impact Notices to address the privacy pollution of mass surveillance" [2017] ELECD 1540; in Timan, Tjerk; Newell, C. Bryce; Koops, Bert-Jaap (eds), "Privacy in Public Space" (Edward Elgar Publishing, 2017) 184

Book Title: Privacy in Public Space

Editor(s): Timan, Tjerk; Newell, C. Bryce; Koops, Bert-Jaap

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781786435392

Section: Chapter 8

Section Title: Privacy Impact Notices to address the privacy pollution of mass surveillance

Author(s): Froomkin, A. Michael

Number of pages: 27

Abstract/Description:

The US Constitution imposes limits on policy-makers that make adoption of EU-style privacy legislation protecting privacy in public difficult, and in some cases impossible. In the United States, therefore, one must devise innovative, if perhaps more limited, measures to protect privacy in public spaces. Encroachments on privacy through mass surveillance resemble the pollution crisis in that they impose an externality on the surveilled. By recasting privacy harms at least metaphorically as a form of pollution and invoking a familiar (if not uncontroversial) US regulatory solution, this proposal seeks a domesticated form of regulation with the potential to ignite a regulatory dynamic by collecting information about the privacy costs of previously unregulated activities that should, in the end, lead to significant results without running afoul of potential US constitutional limits that may constrain data retention and use policies. Counter-arguments focusing on the First Amendment right to data collection, the inadequacy of Environmental Impact Statements (EISs), and the supposed worthlessness of notice-based regimes are also addressed.