ABSTRACT
This article proposes for the first time using ‘shared meaning analysis’ – a general method of contract interpretation first introduced by Professors Kar and Radin in ‘Pseudo-Contract and Shared Meaning Analysis’, 132 Harvard Law Review 1135 (2019) – to determine when the text in an online privacy policy contributes a legally enforceable term to a contract. Over the last several decades, scholars, litigants, and policymakers have become increasingly concerned with how to treat online privacy policies. Consumers often click ‘I agree’ to policies that allow cookies and other digital tracking devices when using online platforms. But they do so without usually reading or understanding their so-called ‘terms’. The policies regularly allow for surveillance and the use of complex algorithms, artificial intelligence, and machine learning to detect once unimaginable patterns in this data, including powerful levers of consumer and political manipulation. Whereas the benefits of allowing these data practices are often experienced tangibly as online encounters become personalized, the associated privacy risks are usually hidden. These developments have led to one of the most massive collections and transfers of personal information in human history, with downstream challenges to human freedom and democracy.
One cause of this transformation is that US courts and the FTC have recently begun to treat online privacy policies as contracts so long as consumers ‘agree’ to them through contemporary clickwrap or browsewrap mechanisms. Scholars concerned with the privacy implications of this contractual treatment have sought, unsuccessfully, to resist it. We argue that this way of framing the debate (ie, whether privacy policies should be treated as contracts) reflects an insufficiently nuanced diagnosis of the problem and places undue limits on reform. Privacy rights include rights to determine when, how, and to what extent certain personal information is communicated to others. Contracts are, at their core, mechanisms that allow people to transfer rights. The reason privacy rights have come under increasing threat recently is not that they are treated as contracts per se, but rather because contract law has itself undergone what Kar and Radin call a ‘paradigm slip’ from a legal regime that once focused on text that is cooperatively communicated to create a shared meaning (traditional contract) to one that also treats as contract the copious boilerplate text that is regularly delivered in online contexts but never produces any such shared meaning (pseudo-contract). Privacy is significantly diminished when these fake ‘terms’ are treated as contract, and this paradigm slip has therefore contributed to a contractual death of privacy. But privacy would also be diminished if individuals were deprived of more traditional rights to contract over privacy.
To allow for a contractual rebirth of privacy, the paradigm slip must be addressed from within the general law of contracts. Courts interpreting contracts should focus on the common meaning of the parties, which is the traditional focus of contract interpretation. To help courts discern this meaning in contemporary digital contexts, Kar and Radin offer a distinctive method – ‘shared meaning analysis’ – that is well suited for that purpose. We show how shared meaning analysis can be used to address certain regularly occurring risks to privacy that arise from mistakes about contractual scope, unilateral modification clauses, and cases of hidden conflicts and deception. We locate shared meaning analysis within a larger suite of privacy-protection proposals, where we argue it must play a critical and distinctive role if privacy protection is to be brought back to significant life. We thus extend the work in ‘Pseudo-Contract and Shared Meaning Analysis’ to the increasingly significant context of privacy. In the process, we provide further support for the distinctions and methods of analysis first developed in that article.
Kar, Robin Bradley and Yu, Xiaowei, The Contractual Death and Rebirth of Privacy (August 28, 2024), Harvard Journal of Law & Technology, volume 38 (forthcoming 2025).
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