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. Yet while consent seems a good proxy for ensuring justice in the platform economy, it is an empty construct.
This Article 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. Through such narrow approaches, regulators are failing to acknowledge that consent cannot be reasonably taken to morally transform the rights, obligations and relationships that it purports to reshape. Further, it positively harms consumers in at least three ways: burdening them with decisions they cannot meaningfully make; subordinating their core inalienable rights to respect and dignity to the economic interests of platforms and creating widespread ideological resistance against alternatives. Notice and consent as a discourse is hardly contestable and is currently part of the rigid background of assumed facts about our digital environment.
As new legislation is devised in the US and new opportunities to reinterpret the GDPR present themselves in the EU, we must be more courageous in looking beyond the façade of individual control and instead grapple with the core structure of corporate surveillance markets. The longer we fail to acknowledge consent’s irrelevance to data governance, the longer we will deny ourselves respect and protection from the evergrowing expansion of digital markets into our lives.
Elettra Bietti, Consent as a Free Pass: Platform Power and the Limits of the Informational Turn, 40 Pace Law Review 307 (2020).