Conceptual and Regulatory Challenges
A. Michael Froomkin
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.