Brett M. Frischmann (Villanova University – Charles Widger School of Law) & Sarah Rajtmajer (Pennsylvania State University) have posted Defending Consent in Privacy Law on SSRN. Here is the abstract:
The moral magic of consent in privacy law is pure illusion. Existing consent mechanisms transform legal and social relationships without requiring actual consent. Our surveillance-based economy is thus built upon countless legal lies.
Privacy scholars lament this state of affairs. They acknowledge that consent is illusory and broken. Some argue it should be abandoned and replaced with substantive rules. Others argue it is “murky” and of questionable legitimacy but should still be tolerated as a governance mechanism. Most arguments about consent miss the mark, however, by failing to commit to a morally defensible theory of consent and to engage with plausible mechanisms for improving how it works in practice.
This article is the first to examine how to reform the moral magic of consent in privacy law so that the law only transforms legal and social relationships when actual consent exists. We advance a morally defensible theory of consent based on subjective intent and understanding. Then, contrary to conventional wisdom, we show how such a normative commitment is doctrinally and practically possible.
We propose a new legal standard of demonstrably informed consent. This standard would put the burden on the party drafting and designing consent mechanisms to generate reliable evidence that a person actually understands the consequential terms to which the person agrees. A doctrine that requires actual comprehension, rather than notice and assent, is feasible and normatively desirable.
The article is also the first to engage with the friction-in-design literature and explore how to operationalize our novel legal requirement. We demonstrate that mechanisms for generating reliable evidence are not cost-prohibitive. Companies regularly employ this type of friction-in-design in online ethics and other training modules. Using the same mechanisms or new ones to generate and test comprehension is feasible, as results from our preliminary experimental studies show.
Finally, the article sets forth an interdisciplinary research agenda, discussing two experiments we have conducted and research opportunities in five specific contexts where there is a strong case for demonstrably informed consent.
Highly recommended.