Why use of T&C’s for notice and consent doesn’t work

Notice and consent/choice is a sign of a dysfunctional system for regulating privacy. Problems of a control based regime of “notice and choice” include:

  • terms are hidden in the fine print of legal notices virtually no one reads
  • there is as little meaningful choice as in old-fashioned consumer adhesion contracts
  • privacy policies are dense and unreadable

In most cases that matter, the assumption that users have actual notice or meaningful choice is an illusion. Privacy self-management is increasingly recognized to be unworkable and possibly even a farce…one study by computer scientists found that if an ordinary Internet user were to quickly read every privacy policy they encountered over the course of a year, it would take them seventy-six working days to do so. Another study by leading privacy journalist Julia Angwin revealed that it was practically impossible to opt-out of pervasive surveillance by governments and companies without practically opting out of society and human contact itself (Richards, Hartzog 2017).

The notice and consent paradigm assumes that citizens are able to assess the potential benefits and costs of data acquisition sufficiently accurately to make informed choices. This assumption was something of a legal fiction when applied to data collected by government agencies and regulated industries in the 1970s. It is most certainly a legal fantasy today, for a variety of reasons including the increasing use of complex and opaque predictive data-mining techniques, the interrelatedness of personal data, and the unpredictability of potential harms from its nearly ubiquitous collection (Strandburg 2014).

Bibliography

RICHARDS, N. and HARTZOG, W., 2017. Privacy’s trust gap. Yale Law Journal, (17-02),.

STRANDBURG, K.J., 2014. Monitoring, datafication, and consent: legal approaches to privacy in the big data context. In: J. LANE, V. STODDEN, S. BENDER and H. NISSENBAUM, eds, Privacy, big data and the public good. Cambridge University Press, pp. 5-43.

 

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