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Published online by Cambridge University Press: 16 November 2023
Chapter 4 delves into two efforts to reinforce consent: opt-in and informed choice. It illustrates why, in the information economy, they also fail. Power asymmetries enable systemic manipulation in the design of digital products and services. Manipulation by design thwarts improved consent provisions, interfering with people’s decision-making. People’s choices regarding their privacy are determined by the designs of the systems with which they interact. European and American attempts to regulate manipulation by changing tracking from ‘opt-out’ to ‘opt-in’ and reinforcing information crash on the illusion of consent. Contract law doctrines that aim to reduce manipulation are unsuitable because they assume mutually beneficial agreements, and privacy policies are neither. Best efforts to strengthen meaningful consent and choice, even where policies are specifically intended to protect users, ultimately are insufficient because of the environment in which privacy “decisions” take place.
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