ABSTRACT
Privacy scholars are moving beyond the ‘notice and consent’ paradigm that has dominated privacy law for a generation. They are right to do so. The evidence shows that it does very little to protect privacy.
The problem with the notice and consent paradigm isn’t limited to privacy law. It is a problem with contract law, and it infects virtually all areas of modern consumer interaction with corporations. At the same time the law was abandoning regulatory oversight in favor of the freedom to contract with notice and consent, it was stripping away the actual requirements of notice and consent. Notice and consent hasn’t failed merely because people don’t care about their privacy, though that might be true. It has failed because we imposed the notice and consent paradigm while allowing companies to ensure that consumers actually got neither notice nor consent.
This failure has permeated all areas of law that affect consumers and employees, not just privacy. Antitrust is infected with fictional consent, as consumers and small businesses give away their right to bring class actions or indeed any lawsuits at all. And the tort and contract doctrines that protected consumers against defective products have also fallen by the wayside, contracted away by the very act of doing business with a company ina document consumers never even see.
The FTC is the most proactive and innovative agency in government right now, and its powers extend not just to privacy, but to regulate anticompetitive conduct, unfair competition, and deceptive practices. It can and should use that power to regulate anticompetitive conduct, unfair competition, and deceptive practices. It can and should use that power to regulate corporate abuse of notice and consent not just in privacy cases, but in a range of competition and consumer protection cases as well.
Lemley, Mark A, Protecting Consumers in a Post-Consent World (January 24, 2025).
Leave a Reply