Lior Strahilevitz (University of Chicago Law School) has posted The Past, Present, and Future of Universal Opt-Out Mechanisms on SSRN. Here is the abstract:
Suppose that a consumer has the legal right to opt out of receiving certain communications, being tracked across the Internet by advertisers, or having their personal data transferred from one company to another. Should the consumer be able to exercise a one-time universal opt-out that effectively binds all similarly situated companies with whom the consumer does business? Or must the consumer invoke their opt-out right repeatedly, communicating their preference to each potential transaction partner individually? This question arises in numerous different privacy contexts and elsewhere. In many instances, the answer to this procedural question of whether universal opt-out mechanisms are an option is substantively decisive because it is unreasonably burdensome for consumers to play opt-out Whac-a-Mole. Perhaps surprisingly, however, privacy law does not answer the question consistently across contexts, with the legal regime sometimes facilitating universal opt-outs (or universal opt-ins) and other times thwarting them. This article examines the privacy law contexts where universal opt-out rights do exist and those where they don’t presently exist but ought to. It identifies the factors that dictate when permitting universal opt-outs is appropriate and has been largely successful, explains why efforts to establish universal opt-out mechanisms have failed in seemingly promising contexts, analyzes the recent rise and successful implementation of private sector universal opt-out mechanisms, and points to instances where facilitating universal opt-outs and opt-ins may be an appropriate legal or market reform.
Highly Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum