Chapter 19: Protecting privacy with “heightened” notice and choice
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The 2014 White House paper on privacy and big data signaled that the Obama administration might acknowledge that efforts to limit data collection online through a “notice and choice” regime have failed and instead work toward developing data privacy norms that focus more on permissible purposes of data collection in an attempt to limit its use post-collection. When it came to proposing legislation, however, the administration retreated from its earlier rhetoric, and in 2015 proposed a privacy Bill of Rights that wholly embraced notice and choice, albeit in an enhanced or heightened state for certain kinds of data collection that were perceived to be particularly sensitive. The first section of this chapter discusses the proposed privacy legislation and its inclusion of a heightened notice and choice framework. The second part explains why even heightened notice and choice fails to protect legitimate privacy interests, particularly in an online environment. The third section explores what a regime based on permissible uses of data might look like and includes suggestions on how we might get there.

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