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Regulating Mass Surveillance as Privacy Pollution: Learning from Environmental Impact Statements

A. Michael Froomkin
2014 Social Science Research Network  
ticularly grateful to Steven E. Koonin for sharing his slides from his stimulatingand, frankly, terrifyingtalk about CUSP at the Simons Foundation in March, 2013 which inspired this article, and also for providing additional information about CUSP's plans and for commenting on an early draft. All remaining errors are entirely my own. I should disclose that I serve on the Advisory Boards of two organizations mentioned in this article: the Electronic Frontier Foundation and the Electronic Privacy
more » ... Information Center, and am a nonresident fellow of a third, the Center for Democracy and Technology. 1713 UNIVERSITY OF ILLINOIS LAW REVIEW 1969 ("NEPA"), requiring Environmental Impact Statement ("EIS") requirements for environmentally sensitive projects. Given the limitations of the current federal privacy impact analysis requirement, the Article offers an initial sketch of what a PIN proposal would cover and its application to classic public spaces, as well as virtual spaces such as Facebook and Twitter. The Article also proposes that PINs apply to private and public data collection -including the NSA's surveillance of communications. By recasting privacy harms as a form of pollution and invoking a familiar (if not entirely uncontroversial) domestic regulatory solution either directly or by analogy, the PINs proposal seeks to present 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 U.S. constitutional limits that may constrain data retention and use policies. Finally, the Article addresses three counterarguments focusing on the First Amendment right to data collection, the inadequacy of EISs, and the supposed worthlessness of noticebased regimes.
doi:10.2139/ssrn.2400736 fatcat:5hpcg2ush5a45emfwkgtodnini