Centre for Internet & Society

In this blog post Rohan examines why the principle of consent is providing us increasingly less of an aegis in protecting our data.

Consent is complicated. What we think of as reasonably obtained consent varies substantially with the circumstance. For example, in treating rape cases, the UK justice system has moved to recognise complications like alcohol and its effect on explicit consent[1]. Yet in contracts, consent may be implied simply when one person accepts another’s work on a contract without objections[2]. These situations highlight the differences between the various forms of informed consent and the implications on its validity.

Consent has emerged as a key principle in regulating the use of personal data, and different countries have adopted different regimes, ranging from the comprehensive regimes like of the EU to more sectoral approaches like that in the USA. However, in our modern epoch characterised by the big data analytics that are now commonplace, many commentators have challenged the efficacy and relevance of consent in data protection. I argue that we may even risk throwing our data protection regimes under the proverbial bus should we continue to focus on consent as a key pillar of data protection.

Consent as a tool in Data Protection Regimes

In fact, even a cursory review of current data protection laws around the world shows the extent of the law’s reliance on consent. In the EU for example, Article 7 of the Data Protection Directive, passed in 1995, provides that data processing is only legitimate when “the data subject has unambiguously given his consent”[3]. Article 8, which guards against processing of sensitive data, provides that such prohibitions may be lifted when “the data subject has given his explicit consent to the processing of those data”[4]. Even as the EU attempts to strengthen data protection within the bloc with the proposed reforms to data protection[5], the focus on the consent of data subject remains strong. There are proposals for an “unambiguous consent by the data subject”[6] requirement to be put in place. Such consent will be mandatory before any data processing can occur[7].

Despite adopting very different overall approaches to data protection and privacy, consent is an equally integral part of data protection frameworks in the USA. In his book Protectors of Privacy[8], Abraham Newman describes two main types of privacy legislation: comprehensive and limited. He argues that places like the EU have adopted comprehensive regimes, which primarily seek to protect individuals because of the “informational and power asymmetry” between individuals and organisations[9]. On the other hand, he classifies the American approach as limited, focusing on more sectoral protections and principles of fair information practice instead of overarching legislation[10]. These sectors include the Fair Credit Reporting Act[11] (which governs consumer credit reporting), the Privacy Act[12] (which governs data collected by Federal government) and Electronic Communications Privacy Act[13] (which deals with email communications) among others. However, the Federal Trade Commission describes itself as having only “limited authority over the collection and dissemination of personal data collected online”[14].

This is because the general data processing that is commonplace in today’s era of big data is only regulated by the privacy protections that come from the Federal Trade Commission’s (FTC) Fair Information Practice Principles (FIPPs). Expectedly, consent is equally important under the FTC’s FIPPs. The FTC describes the principle of consent as “the second widely-accepted core principle of fair information practice”[15] in addition to the principle of notice. Other guidelines on fair data processing published by organisations like the Organisation for Economic Cooperation and Development[16] (OECD) or Canadian Standards Association[17] (CSA) also include consent as a key mechanism in data protection.

The origins of consent in privacy and data protection

Given the clearly extensive reliance on consent in data protection, it seems prudent to examine the origins of consent in privacy and data protection. Just why does consent have so much weight in data protection?

One reason is that data protection, along with inextricably linked concerns about privacy, could be said to be rooted in protecting private property. It was argued that the “early parameters of what was to become the right to privacy were set in cases dealing with unconventional property claims”[18], such as unconsented publication of personal letters[19] or photographs[20]. It was the publication of Brandeis and Warren’s well-known article “The Right to Privacy”[21], that developed “the current philosophical dichotomy between privacy and property rights”[22], as they asserted that privacy protections ought to be recognised as a right in and of themselves and needed separate protection[23]. Indeed, it was Warren and Brandeis who famously borrowed Justice Cooley's expression that privacy is the “right to be let alone”[24].

On the other side of the debate are scholars like Epstein and Posner, who see privacy protections as part of protecting personal property under tort law[25]. However, the central point is that most scholars seem to acknowledge the relationship between privacy and private property. Even Brandeis and Warren themselves argued that one general aim of privacy is “to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private”[26].

It is also important to locate the idea of consent within the domain of privacy and private property protections. Ostensibly, consent seems to have the effect of lessening the privacy protections afforded in a particular situation to a person, because by acquiescing to the situation, one could be seen as waiving their privacy concerns. Brandeis and Warren concur with this position as they acknowledge how “the right to privacy ceases upon the publication of the facts by the individual, or with his consent”[27]. They assert that this is “but another application of the rule which has become familiar in the law of literary and artistic property”[28].

Perhaps the most eloquent articulation of the importance of consent in privacy comes from Sir Edward Coke’s idea that “every man’s house is his castle”[29]. Though the ‘Castle Doctrine’ has been used as a justification for protecting one’s property with the use of force[30], I think that implied in the idea of the ‘Castle Doctrine’ is that consent is necessary in order to preserve privacy. If not, why would anyone be justified in preventing trespass, other than to prevent unconsented entry or use of their property. The doctrine of “Volenti non fit injuria”[31], or ‘to one who consents no injury is done’, is thus the very embodiment of the role of consent in protecting private property. And as conceptions of private property develop to recognise that the data one gives out is part of his private property, for example in US v. Jones, which led scholars to assert that “people should be able to maintain reasonable expectations of privacy in some information voluntarily disclosed to third parties”[32], so does consent act as an important aspect of privacy protection.

Yet, linking privacy with private property is not universally accepted as the conception of privacy. For instance, Alan Westin, in his book Privacy and Freedom[33], describes privacy as “the right to control information about oneself”[34]. Another scholar, Ruth Gavison, contends instead that “our interest in privacy is related to our concern over our accessibility to others: the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others' attention”[35].

While these alternative notions about privacy’s foundational principles may differ from those related to linking privacy with private property, locating consent within these formulations of privacy is possible. Regarding Westin’s argument, I think that implicit in the right to control one’s information are ideas about individual autonomy, which is exercised through giving or withholding one’s consent. Similarly, Gavison herself states that privacy functions to advance “liberty, autonomy and selfhood”[36]. Consent plays a key role in upholding this liberty, autonomy and selfhood that privacy affords us. Clearly therefore, it is far from unfounded to claim that consent is an integral part of protecting privacy.

Consent, Big Data and Data protection

Given the solid underpinnings of the principle of consent in privacy protection, it was hardly a coincidence that consent became an integral part of data protection. However, with the rise of big data practices, one quickly finds that consent ceases to work effectively as a tool for protecting privacy. In a big data context, Solove argues that privacy regulation rooted in consent is ineffective, because garnering consent amidst ubiquitous data collection for all the online services one uses as part of daily life is unmanageable[37]. Additionally, the secondary uses of one’s data are difficult to assess at the point of collection, and subsequently meaningful consent for secondary use is difficult to obtain[38]. This section examines these two primary consequences of prioritising consent amidst Big data practises.

Consent places unrealistic and unfair expectations on the Individual

As noted by Tene and Polonetsky, the first concern is that current privacy frameworks which emphasize informed consent “impose significant, sometimes unrealistic, obligations on both organizations and individuals”[39]. The premise behind this argument stems from the way that consent is often garnered by organisations, especially regarding use of their services. An examination of various terms of use policies from banks, online video streaming websites, social networking sites, online fashion or more general online shopping websites reveals a deluge of information that the user has to comprehend. Moreover, there are a too many “entities collecting and using personal data to make it feasible for people to manage their privacy separately with each entity”[40].

As Cate and Mayer-Schönberger note in the Microsoft Global Privacy Summit Summary Report, “almost everywhere that individuals venture, especially online, they are presented with long and complex privacy notices routinely written by lawyers for lawyers, and then requested to either “consent” or abandon the use of the desired service”[41]. In some cases, organisations try to simplify these policies for the users of their service, but such initiatives make up the minority of terms of use policies. Tene and Polonetsky assert that “it is common knowledge among practitioners in the field that privacy policies serve more as liability disclaimers for businesses than as assurances of privacy for consumers”[42].

However, it is equally important to consider the principle of consent from perspective of companies. At a time where many businesses have to comply with numerous regulations and processes in the name of ‘compliance’[43], the obligations for obtaining consent could burden some businesses. Firms have to gather consent amidst enhancing user or customer experiences, which represents a tricky balance to find. For example, requiring consent at every stage may make the user experience much worse. Imagine having to give consent for your profile to be uploaded every time you make a high score in a video game? At the same time, “organizations are expected to explain their data processing activities on increasingly small screens and obtain consent from often-uninterested individuals”[44]. Given these factors, it is somewhat understandable for companies to garner consent for all possible (secondary) uses as otherwise it is not feasible to keep collecting.

Nonetheless, this results in situations where “data processors can perhaps too easily point to the formality of notice and consent and thereby abrogate much of their responsibility”[45].The totality of the situation shows the odds stacked against the individual. It could be even argued that this is one manifestation of the informational and power asymmetry that exists between individuals and organisations[46], because users may unwittingly agree to unfair, unclear or even unknown terms and conditions and data practices. Not only are individuals greatly misinformed about data collected about them, but the vast majority of people do not even read these Terms and Conditions or End User license agreements[47]. Solove also argues that “people often lack enough expertise to adequately assess the consequences of agreeing to certain present uses or disclosures of their data”[48].

While the organisational practice of providing extensive and complicated terms of use policies is not illegal, the fact that by one estimation, it may take you would have to take 76 working days to review the privacy policies you have agreed to online[49], or by another, that in the USA the opportunity cost society incurs in reading privacy policies is $781 billion[50], should not go unnoticed. I do think it is unfair for the law to put users into such situations, where they are “forced to make overly complex decisions based on limited information”[51]. There have been laudable attempts by some government organisations like Canada’s Office of the Privacy Commissioner and USA’s Federal Trade Commission to provide guidance to firms to make their privacy policies more accessible[52]. However, these are hard to enforce. Therefore, it can be assumed that when users have neither the expertise nor the rigour to review privacy policies effectively, the consent they provide would naturally be far from informed.

Secondary use, Aggregation and Superficial Consent

What amplifies this informational asymmetry is the potential for the aggregation of individual’s data and subsequent secondary use of that data collected. “Even if people made rational decisions about sharing individual pieces of data in isolation, they greatly struggle to factor in how their data might be aggregated in the future”[53].

This has to do with the prevalence of big data analytics that characterizes our modern epoch, and has major implications for the nature and meaningfulness of the consent users provide. By definition, “big data analysis seeks surprising correlations”[54] and some of its most insightful results are counterintuitive and nearly impossible to conceive at the point of primary data collection. One noteworthy example comes from the USA, with the predictive analytics of Walmart. By studying purchasing patterns of its loyalty card holders[55], the company ascertained that prior to a hurricane the most popular items that people tend to buy are actually Pop Tarts (a pre-baked toaster pastry) and Beer[56]. These correlations are highly counterintuitive and far from what people expect to be necessities before a hurricane. These insights led to Walmart stores being stocked with the most relevant products at the time of need. This is one example of how data might be repurposed and aggregated for a novel purpose, but nonetheless the question about the nature of consent obtained by Walmart for the collection and analysis of the shopping habits of its loyalty card holders stands.

One reason secondary uses make consent less meaningful has been articulated by De Zwart et al, who observe that “the idea of consent becomes unworkable in an environment where it is not known, even by the people collecting and selling data, what will happen to the data”[57]. Taken together with Solove’s aggregation effect, two points become apparent:

  1. Data we consent to be collected about us may be aggregated with other data we may have revealed in the past. While separately they may be innocuous, there is a risk of future aggregation to create new information which one may find overly intrusive and not consent to. However, current data protection regimes make it hard for one to provide such consent, because there is no way for the user to know how his past and present data may be aggregated in the future.
  2. Data we consent to be collected for one specific purpose may be used in a myriad of other ways. The user has virtually no way to know how their data might be repurposed because often time neither do the collectors of that data[58].

Therefore, regulators reliance on principles of purpose limitation and the mechanism of consent for robust data protection seems suboptimal at the very least, as big data practices of aggregation, repurposing and secondary uses become commonplace.

Other problems with the mechanism of consent in the context of Big Data

On one end of the spectrum are situations where organisations garner consent for future secondary uses at the time of data collection. As discussed earlier, this is currently the common practice for organisations and the likelihood of users providing informed consent is low.

However, equally valid is considering the situations on the other end of the spectrum, where obtaining user consent for secondary use becomes too expensive and cumbersome[59]. As a result, potentially socially valuable secondary use of data for research and innovation or simply “the practice of informed and reflective citizenship”[60] may not take place. While potential social research may be hindered by the consent requirement, the reality that one cannot give meaningful consent to an unknown secondary uses of data is more pressing. Essentially, not knowing what you are consenting to scarcely provides the individual with any semblance of strong privacy protections and so the consent that individuals provide is superficial at best.

Many scholars also point to the binary nature of consent as it stands today[61]. Solove describes consent in data protection as nuanced[62] while Cate and Mayer-Schönberger go further to assert that “binary choice is not what the privacy architects envisioned four decades ago when they imagined empowered individuals making informed decisions about the processing of their personal data”. This dichotomous nature of consent further reduces its usefulness in data protection regimes.

Whether data collection is opted into or opted out of also has a bearing on the nature of the consent obtained. Many argue that regulations with options to opt out are not effective as “opt-out consent might be the product of mere inertia or lack of awareness of the option to opt out”[63]. This is in line with initiatives around the world to make gathering consent more explicit by having options to opt in instead of opt out. Noted articulations of the impetus to embrace opt in regimes include ex FTC chairman Jon Leibowitz as early as 2007[64], as well as being actively considered by the EU in the reform of their data protection laws[65].

However, as Solove rightly points out, opt in consent is problematic as well[66]. There are a few reasons for this: first, that many data collectors have the “sophistication and motivation to find ways to generate high opt-in rates”[67] by “conditioning products, services, or access on opting in”[68]. In essence, they leave individuals no choice but to opt into data collection because using their particular product or service is dependant or ‘conditional’ on explicit consent. A pertinent example of this is the end-user license agreement to Apple’s iTunes Store[69]. Solove rightly notes that “if people want to download apps from the store, they have no choice but to agree. This requirement is akin to an opt-in system — affirmative consent is being sought. But hardly any bargaining or choosing occurs in this process”[70]. Second, as stated earlier, obtaining consent runs the risk of impeding potential innovation or research because it is too cumbersome or expensive to obtain[71].

Third, as Tene and Polonetsky argue, “collective action problems threaten to generate a suboptimal equilibrium where individuals fail to opt into societally beneficial data processing in the hope of free-riding on others’ good will”[72]. A useful example to illustrate this comes from another context where obtaining consent is the difference between life and death: organ donation. The gulf in consenting donors between countries with an opt in regime for organ donation and countries with an opt out regime is staggering. Even countries that are culturally similar, such as Austria and Germany, exhibit vast differences in donation rates – Austria at 99% compared to just 12% in Germany[73]. This suggests that in terms of obtaining consent (especially for socially valuable actions), opt in methods may be limiting, because people may have an aversion to anything being presumed about their choices, even if costs of opting out are low[74].

What the above section demonstrates is how consent may be somewhat limited as a tool for data protection regimes, especially in a big data context. That said, consent is not in itself a useless or outdated concept. The problems raised above articulate the problems that relying on consent extensively pose in a big data context. Consent should still remain a part of data protection regimes. However, there are both better ways to obtain consent (for organisations that collect data) as well as other areas to focus regulatory attention on aside from the time of data collection.

What can organisations do better to obtain more meaningful consent

Organisations that collect data could alter the way the obtain user consent. Most people can attest to having checked a box that was lying surreptitiously next to the words ‘I agree’, thereby agreeing to the Terms and Conditions or End-user License Agreement for a particular service or product. This is in line with the need for both parties to assent to the terms of a contract as part of making valid a contract[75]. Some of the more common types of online agreements that users enter into are Clickwrap and Browsewrap agreements. A Clickwrap agreement is “formed entirely in an online environment such as the Internet, which sets forth the rights and obligations between parties”[76]. They “require a user to click "I agree" or “I accept” before the software can be downloaded or installed”[77]. On the other hand, Browsewrap agreements “try to characterize your simple use of their website as your ‘agreement’ to a set of terms and conditions buried somewhere on the site”[78].

Because Browsewrap agreements do not “require a user to engage in any affirmative conduct”[79], the kind of consent that these types of agreements obtain is highly superficial. In fact, many argue that such agreements are slightly unscrupulous because users are seldom aware that such agreements exist[80], often hidden in small print[81] or below the download button[82] for example. And the courts have begun to consider such terms and practices unfair, which “hold website users accountable for terms and conditions of which a reasonable Internet user would not be aware just by using the site”[83]. For example, In re Zappos.com Inc., Customer Data Security Breach Litigation, the court said of their Terms of Use (which is in a browsewrap agreement):

“The Terms of Use is inconspicuous, buried in the middle to bottom of every Zappos.com webpage among many other links, and the website never directs a user to the Terms of Use. No reasonable user would have reason to click on the Terms of Use”[84]

Clearly, courts recognise the potential for consent or assent to be obtained in a hardly transparent or hands on manner. Organisations that collect data should be aware of this and consider other options for obtaining consent.

A few commentators have suggested that organisations switch to using Clickwrap or clickthrough agreements to obtain consent. Undergirding this argument is the fact that courts have on numerous occasions, upheld the validity of a Clickwrap agreement. Such cases include Groff v. America Online, Inc[85] and Hotmail Corporation v. Van Money Pie, Inc[86]. These cases built upon the precedent-setting case of Pro CD v. Zeidenberg, in which the court ruled that “Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general”[87]. Shrinkwrap licenses, which refer to end user license agreements printed on the shrinkwrap of a software product which a user will definitely notice and have the opportunity to read before opening and using the product, and the rules that govern them, have seen application to clickthrough agreements. As Bayley rightly noted, the validity of clickthrough agreements is dependent on “reasonable notice and opportunity to review—whether the placement of the terms and click-button afforded the user a reasonable opportunity to find and read the terms without much effort”[88].

From the perspective of companies and other organisations which attempt to garner consent from users to collect and process their data, utilizing Clickwrap agreements might be one useful solution to consider in obtaining more meaningful and informed consent. In fact Bayley contends that clear Clickwrap agreements are “the “best practice” mechanism for creating a contractual relationship between an online service and a user”[89]. He suggests the following mechanism for acquiring clear and informed consent via contractual agreement[90]:

  1. Conspicuously present the TOS to the user prior to any payment (or other commitment by the user) or installation of software (or other changes to a user’s machine or browser, like cookies, plug-ins, etc.)
  2. Allow the user to easily read and navigate all of the terms (i.e. be in a normal, readable typeface with no scroll box)
  3. Provide an opportunity to print, and/or save a copy of, the terms
  4. Offer the user the option to decline as prominently and by the same method as the option to agree
  5. Ensure the TOS is easy to locate online after the user agrees.

These principles make a lot of sense for organisations, as it requires relatively minor procedural changes instead of more transformational efforts to alter the way the validate their data processing processes entirely.

Herzfield adds two further suggestions to this list. First, organisations should not allow any use of their product or service until “express and active manifestation of assent”[91]. Also, they should institute processes where users re-iterate their consent and assent to the terms of use[92]. He goes further to propose a baseline that organisations should follow: “companies should always provide at least inquiry notice of all terms, and require counterparties to manifest assent, through action or inaction, in a manner that reasonable people would clearly understand to be assent”[93].

While obtaining informed and meaningful consent is neither fool proof nor a process which has widely accepted clear steps, what is clear is that current efforts by organisations may be insufficient. As Cate and Mayer-Schönberger note, “data processors can perhaps too easily point to the formality of notice and consent and thereby abrogate much of their responsibility”[94]. One thing they can do to both ensure more meaningful and informed consent (from the perspective of the users) and preventing potential legal action for unscrupulous or unfair terms is to change the way they obtain consent from opt out to opt in.

Conclusion – how should regulation change

In conclusion, the current emphasis and extensive use of consent in data protection seems to be limited in effectively protecting against illegitimate processing of data in a big data context. More people are starting to use online services extensively. This is coupled by the fact that organisations are realizing the value of collecting and analysing user data to carry out data-driven analytics for insights that can improve the efficacy of the product. Clearly, data protection has never been more crucial.

However not only does emphasising consent seem less relevant, because the consent organisations obtain is seldom informed, but it may even jeopardise the intentions of data protection. Commentators are quick to point out how nimble firms are at acquiring consent in newer ways that may comply with laws but still allow them to maintain their advantageous position of asymmetric power. Kuner, Cate, Millard and Svantesson, all eminent scholars in the field of Big data, asked the prescient question: “Is there a proper role for individual consent?”[95]They believe consent still has a role, but that finding this role in the Big data context is challenging[96]. However, there is surprising consensus on the approach that should be taken as data protection regimes shift away from consent.

In fact, the alternative is staring at us in the face: data protection regimes have to look elsewhere, to other points along the data analysis process for aspects to regulate and ensure legitimate and fair processing of data. One compelling idea which had broad-based support during the aforementioned Microsoft Privacy Summit was that “new approaches must shift responsibility away from data subjects toward data users and toward a focus on accountability for responsible data stewardship”[97], ie creating regulations to guide data processing instead of the data collection. De Zwart et al. suggest that regulation must instead “focus on the processes involved in establishing algorithms and the use of the resulting conclusions”[98].

This might involve regulations relating to requiring data collectors to publish the queries they run on the data. This would be a solution that balances maintaining the ‘trade secret’ of the firm, who has creatively designed an algorithm, with ensuring fairness and legitimacy in data processing. One manifestation of this approach is in conceptualising procedural data due process which “would regulate the fairness of Big Data’s analytical processes with regard to how they use personal data (or metadata derived from or associated with personal data) in any adjudicative process, including processes whereby Big Data is being used to determine attributes or categories for an individual”[99]. While there is debate regarding the usefulness of a data due process, the idea of data due process is just part of the consortium of ideas surrounding alternatives to consent in data protection. The main point is that “greater transparency should be required if there are fewer opportunities for consent or if personal data can be lawfully collected without consent”[100].

It is also worth considering exactly what a single use of group or individual’s data is, and what types of uses or processes require a “greater form of authorization”[101]. Certain data processes could require special affirmative consent to be procured, which is not applicable for other less intimate matters. Canada’s Office of the Privacy Commissioner released a privacy toolkit for organisations, in which they provide some exceptions to the consent principle, one of which is if data collection “is clearly in the individual’s interests and consent is not available in a timely way”[102]. Some therefore suggest that “if notice and consent are reserved for more appropriate uses, individuals might pay more attention when this mechanism is used”[103].

Another option for regulators is to consider the development and implementation of a sticky privacy policies regime. This refers to “machine-readable policies [that] can stick to data to define allowed usage and obligations as it travels across multiple parties, enabling users to improve control over their personal information”[104]. Sticky privacy policies seem to alleviate the risk of repurposed, unanticipated uses of data because users who consent to giving out their data will be consenting to how it is used thereafter. However, the counter to sticky policies is that it places even greater obligations on users to decide how they would like their data used, not just at one point but for the long term. To expect organisations to state their purposes for future use of individuals data or that individuals are to give informed consent to such uses seems farfetched from both perspectives.

Still another solution draws from the noted scholar Helen Nissenbaum’s work on privacy. She argues that “the benchmark of privacy is contextual integrity”[105]. ”Contextual integrity ties adequate protection for privacy to norms of specific contexts, demanding that information gathering and dissemination be appropriate to that context and obey the governing norms of distribution within it”[106]. According to this line of thinking, legislators should instead focus their attention on what constitutes appropriateness in certain contexts, although this could be a challenging task as contexts merge and understandings of appropriateness change according to the circumstances of a context. .

While there is little consensus regarding the numerous ways to focus regulatory attention on data processing and the uses of data collected, there is more support for a shift away from consent, as exemplified by the Microsoft privacy Summit:

“There was broad general agreement that privacy frameworks that rely heavily on individual notice and consent are neither sustainable in the face of dramatic increases in the volume and velocity of information flows nor desirable because of the burden they place on individuals to understand the issues, make choices, and then engage in oversight and enforcement.”[107] I think Cate and Mayer- Schönberger make for the most valid conclusion to this article, as well as to summarise the debate I have presented. They say that “in short, ensuring individual control over personal data is not only an increasingly unattainable objective of data protection, but in many settings it is an undesirable one as well.”[108] We might very well be throwing the entire data protection regimes under the bus.

[1] Gordon Rayner and Bill Gardner, “Men Must Prove a Woman Said ‘Yes’ under Tough New Rape Rules - Telegraph,” The Telegraph, January 28, 2015, sec. Law and Order, http://www.telegraph.co.uk/news/uknews/law-and-order/11375667/Men-must-prove-a-woman-said-Yes-under-tough-new-rape-rules.html.

[2] Legal Information Institute, “Implied Consent,” accessed August 25, 2015, https://www.law.cornell.edu/wex/implied_consent.

[3] European Parliament, Council of the European Union, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995, http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:31995L0046.

[4] See supra note 3.

[5] European Commission, “Stronger Data Protection Rules for Europe,” European Commission Press Release Database, June 15, 2015, http://europa.eu/rapid/press-release_MEMO-15-5170_en.htm.

[6] Council of the European Union, “Data Protection: Council Agrees on a General Approach,” June 15, 2015, http://www.consilium.europa.eu/en/press/press-releases/2015/06/15-jha-data-protection/.

[7] See supra note 6.

[8] Abraham L. Newman, Protectors of Privacy: Regulating Personal Data in the Global Economy (Ithaca, NY: Cornell University Press, 2008).

[9] See supra note 8, at 24.

[10] Ibid.

[11] 15 U.S.C. §1681.

[12] 5 U.S.C. § 552a.

[13] 18 U.S.C. § 2510-22.

[14] Federal Trade Commission, “Privacy Online: A Report to Congress,” June 1998, https://www.ftc.gov/sites/default/files/documents/reports/privacy-online-report-congress/priv-23a.pdf: 40.

[15] See supra note 14, at 8.

[16] Organisation for Economic Cooperation and Development, “2013 OECD Privacy Guidelines,” 2013, http://www.oecd.org/internet/ieconomy/privacy-guidelines.htm.

[17] Canadian Standards Association, “Canadian Standards Association Model Code,” March 1996, https://www.cippguide.org/2010/06/29/csa-model-code/.

[18] Mary Chlopecki, “The Property Rights Origins of Privacy Rights | Foundation for Economic Education,” August 1, 1992, http://fee.org/freeman/the-property-rights-origins-of-privacy-rights.

[19] See Pope v. Curl (1741), available here.

[20] See Prince Albert v. Strange (1849), available here.

[21] Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4, no. 5 (December 15, 1890): 193–220, doi:10.2307/1321160.

[22] See supra note 18.

[23] Ibid.

[24] See supra note 21.

[25] See for example, Richard Epstein, “Privacy, Property Rights, and Misrepresentations,” Georgia Law Review, January 1, 1978, 455. And Richard Posner, “The Right of Privacy,” Sibley Lecture Series, April 1, 1978, http://digitalcommons.law.uga.edu/lectures_pre_arch_lectures_sibley/22.

[26] See supra note 21, at 215.

[27] See supra note 21, at 218.

[28] Ibid.

[29] Adrienne W. Fawcett, “Q: Who Said: ‘A Man’s Home Is His Castle’?,” Chicago Tribune, September 14, 1997, http://articles.chicagotribune.com/1997-09-14/news/9709140446_1_castle-home-sir-edward-coke.

[30] Brendan Purves, “Castle Doctrine from State to State,” South Source, July 15, 2011, http://source.southuniversity.edu/castle-doctrine-from-state-to-state-46514.aspx.

[31] “Volenti Non Fit Injuria,” E-Lawresources, accessed August 25, 2015, http://e-lawresources.co.uk/Volenti-non-fit-injuria.php.

[32] Bryce Clayton Newell, “Local Law Enforcement Jumps on the Big Data Bandwagon: Automated License Plate Recognition Systems, Information Privacy, and Access to Government Information,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, October 16, 2013), http://papers.ssrn.com/abstract=2341182.

[33] Alan Westin, Privacy and Freedom (Ig Publishing, 2015).

[34] Helen Nissenbaum, “Privacy as Contextual Integrity,” Washington Law Review 79 (2004): 119.

[35] Ruth Gavison, “Privacy and the Limits of Law,” The Yale Law Journal 89, no. 3 (January 1, 1980): 421–71, doi:10.2307/795891: 423.

[36] Ibid.

[37] Daniel J. Solove, “Privacy Self-Management and the Consent Dilemma,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, November 4, 2012), http://papers.ssrn.com/abstract=2171018: 1888.

[38] Ibid, at 1889.

[39] Omer Tene and Jules Polonetsky, “Big Data for All: Privacy and User Control in the Age of Analytics,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, September 20, 2012), http://papers.ssrn.com/abstract=2149364: 261.

[40] See supra note 37, at 1881.

[41] Fred H. Cate and Viktor Mayer-Schönberger, “Notice and Consent in a World of Big Data - Microsoft Global Privacy Summit Summary Report and Outcomes,” Microsoft Global Privacy Summit, November 9, 2012, http://www.microsoft.com/en-us/download/details.aspx?id=35596: 3.

[42] See supra note 39.

[43] See for example, US Securities and Exchange Commission, “Corporation Finance Small Business Compliance Guides,” accessed August 26, 2015, https://www.sec.gov/info/smallbus/secg.shtml and Australian Securities & Investments Commission, “Compliance for Small Business,” accessed August 26, 2015, http://asic.gov.au/for-business/your-business/small-business/compliance-for-small-business/.

[44] See supra note 39.

[45] See supra note 41.

[46] See supra note 8, at 24.

[47] See for example, James Daley, “Don’t Waste Time Reading Terms and Conditions,” The Telegraph, September 3, 2014, and Robert Glancy, “Will You Read This Article about Terms and Conditions? You Really Should Do,” The Guardian, April 24, 2014, sec. Comment is free, http://www.theguardian.com/commentisfree/2014/apr/24/terms-and-conditions-online-small-print-information.

[48] See supra note 37, at 1886.

[49] Alex Hudson, “Is Small Print in Online Contracts Enforceable?,” BBC News, accessed August 26, 2015, http://www.bbc.com/news/technology-22772321.

[50] Aleecia M. McDonald and Lorrie Faith Cranor, “Cost of Reading Privacy Policies, The,” I/S: A Journal of Law and Policy for the Information Society 4 (2009 2008): 541

[51] See supra note 41, at 4.

[52] For Canada, see Office of the Privacy Commissioner of Canada, “Fact Sheet: Ten Tips for a Better Online Privacy Policy and Improved Privacy Practice Transparency,” October 23, 2013, https://www.priv.gc.ca/resource/fs-fi/02_05_d_56_tips2_e.asp. And Office of the Privacy Commissioner of Canada, “Privacy Toolkit - A Guide for Businesses and Organisations to Canada’s Personal Information Protection and Electronic Documents Act,” accessed August 26, 2015, https://www.priv.gc.ca/information/pub/guide_org_e.pdf.

For USA, see Federal Trade Commission, “Internet of Things: Privacy & Security in a Connected World,” Staff Report (Federal Trade Commission, January 2015), https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-staff-report-november-2013-workshop-entitled-internet-things-privacy/150127iotrpt.pdf.

[53] See supra note 37, at 1889.

[54] See supra note 39, at 261.

[55] Jakki Geiger, “The Surprising Link Between Hurricanes and Strawberry Pop-Tarts: Brought to You by Clean, Consistent and Connected Data,” The Informatica Blog - Perspectives for the Data Ready Enterprise, October 3, 2014, http://blogs.informatica.com/2014/03/10/the-surprising-link-between-strawberry-pop-tarts-and-hurricanes-brought-to-you-by-clean-consistent-and-connected-data/#fbid=PElJO4Z_kOu.

[56] Constance L. Hays, “What Wal-Mart Knows About Customers’ Habits,” The New York Times, November 14, 2004, http://www.nytimes.com/2004/11/14/business/yourmoney/what-walmart-knows-about-customers-habits.html.

[57] M. J. de Zwart, S. Humphreys, and B. Van Dissel, “Surveillance, Big Data and Democracy: Lessons for Australia from the US and UK,” Http://www.unswlawjournal.unsw.edu.au/issue/volume-37-No-2, 2014, https://digital.library.adelaide.edu.au/dspace/handle/2440/90048: 722.

[58] Ibid.

[59] See supra note 41, at 3.

[60] Julie E. Cohen, “What Privacy Is For,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, November 5, 2012), http://papers.ssrn.com/abstract=2175406.

[61] See supra note 37, at 1901.

[62] Ibid.

[63] See supra note 37, at 1899.

[64] Jon Leibowitz, “So Private, So Public: Individuals, The Internet & The paradox of behavioural marketing” November 1, 2007, https://www.ftc.gov/sites/default/files/documents/public_statements/so-private-so-public-individuals-internet-paradox-behavioral-marketing/071031ehavior_0.pdf: 6.

[65] See supra note 5.

[66] See supra note 37, at 1898.

[67] Ibid.

[68] Ibid.

[69] Ibid.

[70] Ibid.

[71] See supra note 41, at 3.

[72] See supra note 39, at 261.

[73] Richard H. Thaler, “Making It Easier to Register as an Organ Donor,” The New York Times, September 26, 2009, http://www.nytimes.com/2009/09/27/business/economy/27view.html.

[74] Ibid.

[75] The Oxford Introductions to U.S. Law: Contracts, 1 edition (New York: Oxford University Press, 2010): 67.

[76] Francis M. Buono and Jonathan A. Friedman, “Maximizing the Enforceability of Click-Wrap Agreements,” Journal of Technology Law & Policy 4, no. 3 (1999), http://jtlp.org/vol4/issue3/friedman.html.

[77] North Carolina State University, “Clickwraps,” Software @ NC State Information Technology, accessed August 26, 2015, http://software.ncsu.edu/clickwraps.

[78] Ed Bayley, “The Clicks That Bind: Ways Users ‘Agree’ to Online Terms of Service,” Electronic Frontier Foundation, November 16, 2009, https://www.eff.org/wp/clicks-bind-ways-users-agree-online-terms-service.

[79] Ibid, at 2.

[80] Ibid.

[81] See Nguyen v. Barnes & Noble Inc., (9th Cir. 2014), available here.

[82] See Specht v. Netscape Communications Corp.,(2d Cir. 2002), available here.

[83] See supra note 78, at 2.

[84] See In Re: Zappos.com, Inc., Customer Data Security Breach Litigation, No. 3:2012cv00325: pg 8 line 23-26, available here.

[85] See Groff v. America Online, Inc., 1998, available here.

[86] Hotmail Corp. v. Van$ Money Pie, Inc., 1998, available here.

[87] ProCD Inc. v. Zeidenberg, (7th. Cir. 1996), available here.

[88] See supra note 78, at 1.

[89] See supra note 78, at 2.

[90] Ibid.

[91] Oliver Herzfeld, “Are Website Terms Of Use Enforceable?,” Forbes, January 22, 2013, http://www.forbes.com/sites/oliverherzfeld/2013/01/22/are-website-terms-of-use-enforceable/.

[92] Ibid.

[93] Ibid.

[94] See supra note 41, at 3.

[95] Christopher Kuner et al., “The Challenge of ‘big Data’ for Data Protection,” International Data Privacy Law 2, no. 2 (May 1, 2012): 47–49, doi:10.1093/idpl/ips003: 49.

[96] Ibid.

[97] See supra note 41, at 5.

[98] See supra note 57, at 723.

[99] Kate Crawford and Jason Schultz, “Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, October 1, 2013), http://papers.ssrn.com/abstract=2325784: 109.

[100] See supra note 41, at 13.

[101] See supra note 41, at 5.

[102] See supra note 52, Privacy Toolkit, at 14.

[103] See supra note 41, at 6.

[104] Siani Pearson and Marco Casassa Mont, “Sticky Policies: An Approach for Managing Privacy across Multiple Parties,” Computer, 2011.

[105] See supra note 34, at 138.

[106] See supra note 34, at 118.

[107] See supra note 41, at 5.

[108] See supra note 41, at 4.

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