'Against Notice Skepticism in Privacy (and Elsewhere)' by M. Ryan Calo in 87 Notre Dame Law Review (2012) 1027-1072 reflects empirical work noted earlier this year.
Calo argues that -
Requiring notice is a very popular way to regulate. It is also among the most heavily criticized. This article undermines the case for notice skepticism by exposing two erroneous assumptions critics of notice commonly make.
The first assumption is that notice is monolithic. It is not. Notice consists of several, distinct strategies. It is surprisingly common for a lawmaker to select the wrong form(s) of notice for the particular context or concern. A statute will require a warning, for instance, where other categories of notice such as reporting or notification would be more effective and less costly.
The second assumption is that notice must consist of language or its symbolic equivalent. Experience itself can also constitute a form of non-linguistic or “visceral” notice, one less susceptible to cognitive and other limitations. Electric cars, being silent, put pedestrians at risk. Officials could post warnings throughout the city that many would miss or tune out or ban the technology altogether. Instead, some regulators have proposed requiring that electric car manufacturers reintroduce an engine noise. Various emerging techniques can change our mental models in legally relevant ways without recourse to text or symbols.
The prevailing notice skepticism should not succeed in convincing lawmakers, academics, and others to abandon notice as a strategy without first acknowledging and correcting these errors. Officials, meanwhile, should look to these insights as they consider mandatory notice going forward.He concludes that -
Mandatory notice is a popular but controversial form of regulation. It is popular because it is perceived by government and industry as easier, cheaper, and less invasive than restricting conduct. It is controversial in that many are skeptical that notice ever works in practice. The arguments against notice, in online privacy and elsewhere, tend to follow the same pattern: notice is ineffective because consumers never see it and, when they do, they cannot make much use of it. The understandable conclusion that notice does not work in practice has led skeptics to reject notice entirely as a regulatory strategy — an action that would send regulators back to the proverbial square one.
It may well be that, no matter how popular or advantageous a strategy, we need to abandon mandatory notice in favor of something else. This Article has argued that extreme skeptics of notice move too fast, however, in rejecting the potential of privacy notice to warn or inform consumers. Emerging strategies that do not necessarily rely on words or symbols to convey salient information to consumers may not be susceptible to the same withering critiques as more traditional notice. Especially given the paucity of alternatives, such “visceral” notice strategies are worthy of further exploration to ensure we know the full panoply of options available to regulators and courts.
In short, this Article has identified a radical new dimension to notice in one context and urged further investigation. Without it, reports of the death of notice remain exaggerated. Although the focus of the Article has been online privacy - where notice is among the only affirmative obligations websites face and where opportunities for innovation are perhaps unique - its insights go beyond privacy or the Internet. We might explore the potential of visceral notice in contexts as variable as traffic safety, cyberbullying, and water purity.
What is needed in each instance is a commitment on the part of regulators and industry to innovate around notice, an open mind on the part of critics, and a willingness within multiple disciplines to assess the results of such innovation. The way forward in notice is difficult but, this Article has argued, it is also worthwhile.
