At the round tables on privacy held by the Federal Trade Commission, Indiana University law school professor and member of the board of The Privacy Projects, Fred Cate said out loud what long has been silently known about consumer protections based on the notices web sites post to describe their data protection practices and the consumers’ choice to click on or away. Cate said: “Choice is an illusion.”

There is more than a bit of substance behind the bumper sticker. “The flurry of notices may give individuals some illusion of enhanced privacy, but the reality is far different. The result is the worst of all worlds: privacy protection is not enhanced, individuals and businesses pay the cost of bureaucratic laws, and we have become so enamored with notice and choice that we have failed to develop better alternatives.”

FTC Chairman Jon Liebowitz offered a more basic indictment of “notice-and-choice.” More than the length or legalese of the written notice, more than the specific liberties they allow, more even than their non-standard placement, he says “consumers don’t read privacy policies…”

None of this would pose a problem if the cost of violating a consumer’s sense of privacy did not result in real penalties. It does. Just ask Facebook. Or Google.

Charting a new course with more teeth without raising the stakes of consumer participation and offering companies a “safe harbor” will take some doing. One way may be to focus on encouraging corporate accountability and requiring a specific outcome. Rather than dictate specific behavior—collect this, not that, hold it for a month or a quarter, require an opt-in or opt-out—government can require outcomes that can be monitored and enforced. A breach is best prevented by companies focused on customer loyalty, not government guidelines.

While it is best to act online as if you are in public, each of us leaves a mandatory trail of data as we go from one digital public square to the next. The current ability to collect, analyze and link what in an earlier day was dust on our sandals makes the burden of privacy more than our own. If the companies from whom we buy do not buy that, we ought to go elsewhere.