Document Type

Essay

Degree Name

Master of Laws

Abstract

Consumer data is largely regulated through the notice-and-choice approach in the United States, which relies on consumer consent. The notice-and-choice approach is rooted in the control theory of information privacy. This paper will argue that the control theory is limited due to its reliance on property law, its breadth, as well as it reinforcing the ‘no privacy in public’ concept. Further, the notice-and-choice approach relies on consent being both free and informed. However, consent cannot be considered free due to the lack of choice and the manipulation exerted on the consumer. Also, consent is not informed as the consumer lacks adequate understanding of the privacy policies, as well as the consumer's cognitive limitations. Additionally, the technological innovation: both the dissemination of data-tracking technology as well as the developments in data science — data collection, data analysis, and data aggregation have had serious implications on the role of consent. Namely, the conception of information must involve a contextual and de-abstracted notion. Contemporary data practices have allowed corporations to infer new data about the individual, and consequently construct a data double of the consumer. The data double is the digital mirroring of the consumer, which is developed through pervasive data tracking. While traditional corporate practices rely on the consumer to consensually divulge information, the corporation is now able to circumvent consent through inferring data from the data double. Therefore, corporations are able to circumvent consent by relying on inferred-generated data, made possible via algorithmic inferences and large-language models.

Disciplines

Consumer Protection Law | Databases and Information Systems | Internet Law | Law

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