Elettra Bietti, ‘Consent as a Free Pass: Platform Power and the Limits of the Informational Turn’

ABSTRACT
Across the United States and Europe, notice and consent, the act of clicking that ‘I have read and agree’ to a platform’s terms of service, is the central device for legitimating and enabling platforms’ data processing, acting as a free pass for a variety of intrusive activities which include profiling and behavioral advertising. Notwithstanding literature and findings that lay significant doubts on notice and consent’s adequacy as a regulatory device in the platform ecosystem, courts, regulators and other public authorities across these regions keep adopting and legitimating these practices. While consent seems a good proxy for ensuring justice in the platform economy, it is an empty construct.

This paper explains how notice and consent practices in the platform economy are not only normatively futile but also positively harmful. Narrow understandings that focus on voluntariness and disclosure such as the ones generally adopted by regulators and courts fail to account for the systemically unjust background conditions within which voluntary individual acts of consent take place …

Bietti, Elettra, Consent as a Free Pass: Platform Power and the Limits of the Informational Turn (November 19, 2019). Pace Law Review, forthcoming.

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