ABSTRACT
Consent has become central to the governance of consumer markets in general and digital markets in particular. But consumer consent is arguably empty, and it enables and legitimizes digital surveillance and other consumer exploitations. This Article argues that traditional law-and-economics views on consent hide a crucial aspect: consent shifts considerable burdens – to collect and process information, to make informed decisions, and eventually to be liable for adverse results – to individuals and away from firms. This burden-shifting technique is deployed under the guise of empowering individuals to control their lives. Ironically, the use of consent (either by market mechanisms or by regulatory regimes) often has the opposite effect of disempowering and burdening individuals, leaving them with little control or recourse. Consequently, what consent mechanisms often achieve is delegating unchecked regulatory powers to firms …
Corren, Ella, The Consent Burden in Consumer and Digital Markets (April 26, 2023), Harvard Journal of Law and Technology, Forthcoming.
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