Through a Glass Darkly: From Privacy Notices to Effective Transparency

May 30, 2016

Openness is the first fundamental principle of fair information practices with “notice” serving to practically implement openness in most commercial transactions. However, current notices have been widely criticized as being too complex, legalistic, lengthy, and opaque. This Article argues that to achieve the openness required by the first fair information practice principle, data protection and privacy should move from a “notice” model to an environment of “transparency.” It asserts that the terms “notice” and “transparency” are not synonymous and that different definitions apply to each.
The Article begins by reviewing the history of notice in the United States and its traditional roles in privacy and data protection. It considers the challenges and limitations of notice, and the attempts to address them and the lessons learned from these efforts. The Article also examines the implications of emerging technologies and data uses such as mobile apps, big data analytics and the Internet of Things for traditional notice. This Article proposes that what is needed is a move from notice to an environment of transparency that includes improved notices, attention to contextual norms, integrating the design of notices into system development as part of privacy-by-design, public education, and new technological solutions. Finally, it presents arguments for business buy-in and regulatory guidance. While the historical review is limited to the experience in the U.S., the proposals for creating an environment of transparency can apply across jurisdictions. Further, while transparency is necessary but not sufficient for assuring fair data use, a discussion of issues related to the full complement of the fair information principles is beyond the scope of this paper.