ABSTRACT
Consent plays a profound role in nearly all privacy laws. As Professor Heidi Hurd aptly said, consent works ‘moral magic’ – it transforms things that would be illegal and immoral into lawful and legitimate activities. As to privacy, consent authorizes and legitimizes a wide range of data collection and processing.
There are generally two approaches to consent in privacy law. In the United States, the notice-and-choice approach predominates; organizations post a notice of their privacy practices and people are deemed to consent if they continue to do business with the organization or fail to opt out. In the European Union, the General Data Protection Regulation (GDPR) uses the express consent approach, where people must voluntarily and affirmatively consent …
Solove, Daniel J, Murky Consent: An Approach to the Fictions of Consent in Privacy Law (August 20, 2023), 104 Boston University Law Review (Forthcoming); GWU Legal Studies Research Paper No 2023-23; GWU Law School Public Law Research Paper No 2023-23.
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