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
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).
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.