87 Notre Dame L. Rev. 1027 (2012)
Against Notice Skepticism in Privacy (and Elsewhere)
What follows is an exploration of innovative new ways to deliver privacy 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. 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. The thesis of this Article is that, for a variety of reasons, experience as a form of privacy disclosure is worthy of further study before we give in to calls to abandon notice as a regulatory strategy in privacy and elsewhere.
In Part I, the Article examines the promise of radical new forms of experiential or visceral notice based in contemporary design psychology. This Part also compares and contrasts visceral notice to other regulator strategies that seek to “nudge” or influence consumer or citizen behavior.
Part II discusses why the further exploration of visceral notice and other notice innovation is warranted. Part III explores potential challenges to visceral notice—for instance, from the First Amendment—and lays out some thoughts on the best regulatory context for requiring or incentivizing visceral notice. In particular, this Part highlights the potential of safe harbors and goal-based rules, i.e., rules that look to the outcome of a notice strategy rather than dictate precisely how notice must be delivered.
This Article uses online privacy as a case study for several reasons. First, notice is among the only affirmative obligations that companies face with respect to privacy—online privacy is a quintessential notice regime. Second, the Internet is a context in which notice is widely understood to have failed, but where the nature of digital services means that viable regulatory alternatives are few and poor. Finally, the fact that websites are entirely designed environments furnishes unique opportunities for the sorts of untraditional interventions explored in Part I.
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