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A. Michael Froomkin Regulating Mass Surveillance as Privacy Pollution: Learning from Environmental Impact Statements (draft, 2014).

UPDATE: Personal privacy in developed countries is disappearing faster than the polar ice caps. The rapid growth in the number and breadth of databases, the continuing drop in the costs of information processing, the spread of cheap sensors and of self-identification practices, all have combined to make this the era of Big Data. Much like global warming, drift-net data collection and collation creates widespread harms substantially caused by actions not visible to most of those affected. Both the private sector and the government find value in collecting vast amounts of information about everyone: firms collect personal data for marketing and revenue maximization; governments collect personal data for everything from efficiency to security. Practically nothing and nowhere is exempt: Data are collected in the home, from cell phones, online, and in public spaces. Market failures, information asymmetries – including, we have recently learned, a stunning lack of government transparency about domestic surveillance – and collective action problems characterize many aspects of the current privacy crisis, much as they did the environmental problem in the 1960s.

Modeling mass surveillance disclosure regulations on an updated form of environmental impact statement will help protect everyone’s privacy. Mandating disclosure and impact analysis by those proposing to watch us in and through public spaces will enable an informed conversation about privacy in public. Additionally, the need to build in consideration of the consequences of surveillance into project planning, as well as the danger of bad publicity arising from excessive surveillance proposals, will act as a counterweight to the adoption of mass data collection projects, just as it did in the environmental context. In the long run, well-crafted disclosure and analysis rules could pave the way for more systematic protection for privacy – as it did in the environmental context. Effective US substantive regulation will require the regulator to know a great deal about who and what is being recorded and about the costs and benefits of personal information acquisition and uses. At present we know relatively little about how to measure these; the privacy equivalent of the environmental impact statement will not only provide case studies, but occasions to grow expertise.

Environmental impact statements may be out of fashion today, but they played an important role in educating the public, policy-makers, and also builders about environmental risks and costs, especially in the early days of environmental regulation. In the US, these are still the early days of privacy regulation. We can apply what we have learned from more than thirty years of environmental disclosures to craft a better regime for disclosure, and thus analysis and debate, of the rapidly increasing number of public and private projects that involve mass surveillance.

Part I of this article gives examples of mass surveillance activities drawn from both the private and public sectors. It argues that mass surveillance is already very great, is growing, and that it is difficult to monitor and poorly understood. This Part also discusses how the deployment of privacy-destroying technology can be seen as a form of market failure. Part I then provides the context for the argument that follows. It briefly surveys the limited and inadequate doctrinal legal tools available to respond to the deployment of mass surveillance technologies and notes the existence of a wide gap when it comes to surveillance in or through public spaces. Then it provides a very quick summary of the Privacy Impact Notice (PINs) proposal, noting that the aim of this article is to make the case in principle for the utility and validity of Privacy Impact Notices without tying the argument to any particular level of coverage.

Part II first explains how, with the National Environmental Policy Act of 1969 (NEPA), environmental law responded to a similar set of market failure problems relating to physical harms to the environment. It outlines the main features of the Environmental Impact Statement (EIS) requirement for environmentally sensitive projects and then argues that we can learn from NEPA’s successes and defects in order to craft a Privacy Impact Notice (PIN) requirement triggered by plans to engage in mass surveillance. It contrasts the PIN proposal to the existing, much more limited, federal privacy analysis requirement, known as Privacy Impact Assessments. Part II also provides an initial sketch of what a PIN proposal would cover, in particular which sorts of activities would have presumptive safe harbors and which would likely be subject to the most thorough analysis and disclosure requirements. The final section of Part II examines whether the PINs proposal would have applications to surveillance and data-collection in online public spaces such as Facebook, Twitter, and other virtual spaces. It also considers what the PINs proposal would have to offer towards addressing the now-notorious problem of the NSA’s drift-net surveillance of telephone conversations, emails, and web-based communications.

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Cite as: Beth Tucker Long, WordPress 3.9 and Theme 1.15 Updates (ZS3), JOTWELL (April 18, 2014) (reviewing A. Michael Froomkin Regulating Mass Surveillance as Privacy Pollution: Learning from Environmental Impact Statements (draft, 2014)),