Law in the Internet Society

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ZaneMullerSecondEssay 3 - 14 Jan 2020 - Main.EbenMoglen
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 Obviously, those who would spy on the general public or make tools that enable the practice are the logical parties to hold liable, existing law notwithstanding. Market-based regulations are likely to fail for the same reasons that the current system of consent is ineffective – sophisticated companies will work around them. Existing proposals for the externality regulation framework, however, hew exclusively to these: Michael Froomkin, for example, suggests that anyone undertaking private digital surveillance of the public be required to release something akin to an environmental impact statement. It is difficult to imagine this having any real effect.
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Why? NEPA and its required environmental impact statements have had plenty of effect. Breach liabilities for failure to handle collected data correctly will create incentives to collect less, and for insurers and businesses to find solutions (like improved security regimes and better software governance) that will reduce harms. Strict liability regimes will force the most effective cost-avoiders to reduce costs in a familiar fashion.

But you're also over-specifying by direct analogy of particular laws about particular environmental problems. A more general intention to rely on social standards of care and overall liability, instead of contractual promise-making to individual parties, which focuses on what has been done that caused harm rather than on whether consent was collected for it, is a sufficient representation of "environmental" for these purposes. A National Privacy Policy Act, in the NEPA vein, has much more to recommend it than you are allowing for. Put some thought there and see what you come up with.

 



Revision 3r3 - 14 Jan 2020 - 23:20:31 - EbenMoglen
Revision 2r2 - 11 Jan 2020 - 05:13:02 - ZaneMuller
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