Making a case for “Notice” in Privacy: Avoiding a basic Data Privacy Misstep
“Failing at 'Notice' in privacy is like tripping over your shoelaces at a marathon's starting line — it is embarrassing and highly avoidable.”
Debbie Reynolds, "The Data Diva"
As organizations globally contend with increasingly stringent data privacy and data protection regulations, many organizations are overly focused on obtaining and managing consent. While consent may be one of the most crucial legal basis to consider for processing of personal data, overemphasizing it has led to neglecting a foundational principle of privacy that should be considered before consent or other kinds of legal basis: Notice. Overlooking the importance of notice can be a serious oversight that can seriously affect legal compliance, transparency, and consumer trust. Notice, in its most basic form, informs individuals that their personal data is being collected. Despite its simplicity and importance, many organizations fail to provide notice effectively or completely. This essay explores the concept of notice, why it is essential, how organizations often fall short, and why it deserves renewed attention in an increasingly complex digital environment.
Understanding Notice: The Simplest Privacy Obligation
Notice, at its core, informs individuals about personal data collection activities. It is the starting point of transparency and the most basic privacy requirement. Notice and consent are two different things; notice ensures that individuals know that their personal data is being collected, and provides that “what,” not necessarily the “how” or the “why”. One of the simplest notice illustrations I have seen is found in a common scene on U.S. highways—a sign that reads, “Notice: Video Surveillance is in Use.” This sign is effective because it is simple, clearly worded, highly visible, and delivers essential information. It demonstrates that notice does not need to be complicated or overly detailed to fulfill its function.
Despite the simplicity of notice requirements, many organizations still fail to provide adequate or appropriate notice. This failure is akin to tying one’s shoelaces together and attempting to run a marathon—a completely avoidable misstep that can lead to unnecessary complications. As emerging technologies like artificial intelligence, the Internet of Things (IoT), and biometrics become embedded in business operations, clear and adequate notice becomes even more important. Yet, many companies remain unaware of these changing obligations or struggle to translate those evolving obligations into effective communication with consumers.
Jurisdictional Variability: Notice is Not One-Size-Fits-All
One of the primary reasons notice can be confusing is that its requirements can vary widely by jurisdiction, technology used, and the data collection type. While a general notice of data collection is the baseline, certain laws demand more specificity. The Illinois Biometric Information Privacy Act (BIPA) is a prime example of this complexity. Under BIPA, organizations are required not only to inform individuals that their biometric data is being collected but also to disclose their data retention policies at the time of data collection. Failure to include such information in a notice has led to severe financial consequences for many companies. In fact, BIPA violations have resulted in over one billion dollars in settlements and fines, including failures to provide sufficient notice regarding data retention.
This example highlights how organizations may erroneously believe securing consent for data collection is enough. In reality, some laws may mandate additional disclosures. The gap between what kind of notice organizations provide and what the law requires demonstrates a common misunderstanding. Insufficient notice may leave companies vulnerable to legal and reputational damage.
Complexity: When Notice Becomes a Maze
Another pitfall organizations encounter is making notice overly complex. Some companies bury notice information in documents that exceed 80 pages, often distributed across multiple sections or websites. This approach, rather than empowering individuals, confuses and discourages them. The opacity of such documentation often hinders individuals from understanding that their data is being collected and from exercising their privacy rights effectively.
The purpose of notice is to promote transparency, not to overwhelm or mislead. When notice becomes convoluted, it loses effectiveness and defeats its core intent. Simplicity, accessibility, and clarity should be prioritized. A well-crafted notice statement should be understandable to an average person. Notice is a matter of regulatory compliance and an ethical obligation for organizations that handle personal data.
Lack of Clarity: Legalese as a Barrier
Even when notice is present, it can often be rendered ineffective by the overuse of legal jargon. Too many privacy statements are written in overly wordy language or filled with complex legal terminology, making them difficult to interpret for anyone without a legal background. Such practices do little to serve consumers and may even be interpreted by regulators as intentionally unfair or deceptive.
In contrast, the clear, plain language of a notice fosters trust. It allows individuals to make informed decisions about their personal data and supports the principle of informed notice. Regulatory bodies around the world have repeatedly emphasized the importance of transparency and clarity with notice. Failing to meet these expectations diminishes consumer confidence and can result in regulatory scrutiny and penalties.
The Consequences of Absence: When Notice is Missing Entirely
The most egregious failure related to notice is its complete absence. Some organizations do not provide any notice of data collection or use, often due to a lack of awareness about when notice is required. This issue is particularly pronounced when businesses adopt new technologies without fully considering their privacy implications.
A compelling example is the implementation of biometric time clocks in the workplace. Employers may upgrade from a manual punch-in system to a fingerprint-based timekeeping system. For example, if an employer has employees in Illinois, this change triggers new obligations under BIPA, including providing notice before collecting biometric data. Because the manual punch-in system did not involve collecting biometric data, the employer may not realize that the new system introduces a new need for notice. This oversight could have significant unintended costly legal consequences, as seen in numerous BIPA-related lawsuits.
Emerging technologies often introduce hidden data privacy and data protection risks. As businesses adopt AI-driven tools, automated decision-making systems, and biometric verification, they may unknowingly cross into new regulatory territories. In these cases, the absence of notice is not just a technical error—it is a legal and ethical failure that exposes individuals to privacy risks and organizations to legal jeopardy.
Building a Culture of Notice: Practical Steps Forward
Organizations should adopt a more thoughtful and proactive approach to avoid these missteps. The best next steps are:
1. Conduct Regular Assessments - Organizations should regularly assess their data collection activities, especially when new technologies are introduced. These assessments should identify when and where notice is required and ensure that all relevant information is disclosed.
2. Simplify Language - Notice should be written in plain language, free of legal jargon, and easy for the average person to understand. Tools like layered notices, infographics, and video explanations can help communicate complex ideas more effectively.
3. Be Transparent About Retention - In BIPA-related cases, disclosing data retention periods is critical. Organizations should clearly state how long data will be stored and under what conditions it will be deleted. Organizations should also be aware that notice requirements may differ by jurisdiction.
4. Make Notice Accessible - Notice should be easy to find and read. This means not hiding it behind multiple links or placing it in hard-to-navigate sections of websites or apps.
5. Train Staff and Update Policies - Employees, particularly those involved in deploying new technologies or collecting personal data, should be trained on notice requirements. Privacy information should be in living documents that evolve with technological and legal developments.
6. Leverage Privacy by Design - Incorporating notice into the design of systems and technologies helps ensure privacy obligations are considered from the outset, not an afterthought.
Reclaiming the Value of Notice
Notice remains one of the most critical tools in the evolving data privacy landscape. It is not merely a formality but a fundamental component of privacy that empowers individuals, ensures transparency, and reinforces trust between organizations and the public. While consent often takes the spotlight in data protection discussions, notice must not be relegated to the background. Its role is foundational—without it, even the most well-intentioned privacy practices are incomplete.
By simplifying, clarifying, and prioritizing notice, organizations can reduce legal risk, meet regulatory expectations, and build meaningful relationships with individuals based on transparency and accountability. When data is increasingly valuable and privacy is scrutinized, effective notice is not just a legal requirement—it is about making data privacy a business advantage.
