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Law in the Internet Society
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Threshold Questions for Developing Privacy Protections Modeled on Environmental Law-- By ZaneMuller - 10 Jan 2020 Anyone who has clicked an “I accept” button can understand the futility of a contractual or consent-based regime for online privacy protection. So while the EU pushes ahead with GDPR and other states consider adopting a version of the CCPA, privacy advocates should begin thinking seriously about more effective reform. My purpose here is to take a step further than we did in class on the idea of privacy protections modeled on environmental law. The status quo is bad because mass surveillance harms everyone’s privacy – it reduces individuals’ capacity for secrecy and anonymity in ways that subvert their autonomy. And because of the architecture of the network, your failure to maintain secrecy or anonymity can harm my autonomy. That external harm cannot be remedied by consent, and so we need social standards of care. If we accept that externality regulation is the appropriate model, the question becomes, what would such privacy protections actually look like? Curiously few students have tried to answer – only Zain Haq in 2017 – despite the seemingly ready acceptance of the environmental regulation analogy among the class and the relative lack of writing anywhere on how exactly such regulation would work. A few legal scholars have written in this vein, but they offer incremental, market-oriented and generally flaccid proposals. Some make Zain’s mistake of taking the environmental analogy too far, using metaphors like “data spills” or “spam emissions” to characterize privacy harms. A comprehensive prescription or model statute is well beyond the scope of this essay. I will instead try to identify and develop a few key questions that proponents of surveillance-externality regulation should consider at the outset.What exactly are the harmful externalities we want to reduce?Even once we have divided privacy into secrecy, anonymity and autonomy, the harms of digital surveillance remain somewhat difficult to articulate. There is the general unease stirred by too-specific targeted ads, the wasted hours of clicking and scrolling, the atomization of online communities into echo chambers, the spread of disinformation and resulting deterioration of democratic politics. For the law to address these, they need to be recharacterized in legally cognizable terms. For example, advocates could point to the chilled freedoms of speech and association that result from ubiquitous cameras and audio recorders. Arguments that targeted advertising manipulates consumer behavior may not win easy acceptance given our national commitment to the idea of personal responsibility, but the insights of behavioral economics, choice architecture and design ethics offer conceptual frameworks. Adverse mental health impacts from digital surveillance could amount to emotional distress, and election law already regulates speech by political actors.What metrics, if any, will we use to measure their reduction?To whom do we assign duties and liabilities?-diffculty of assigning liability to ISPs/Platforms under existing comms lawYou are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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