The Pathologies of Digital Consent

3:30 pm on Wednesday, March 20, 2019
5:00 pm on Wednesday, March 20, 2019
School of Law, Room 204, 765 Commonwealth Ave.
Consent permeates our law, and our digital lives. Consent is the foundation of the relationships we have with search engines, social networks, commercial web sites, and any one of the dozens of other digitally-mediated businesses we interact with regularly. We frequently are asked to consent to terms of service, privacy notices, the use of cookies, and so many other commercial practices. But it’s possible to have too much of a good thing. As a number of scholars have documented, while consent models permeate the digital consumer landscape, the practical conditions of these agreements fall far short of the gold standard of knowing and voluntary consent. Yet as scholars, advocates, and consumers, we lack a common vocabulary for talking about the different ways in which digital consents can be flawed.

In this Cyber Alliance talk, Washington University in St. Louis Prof. Neil Richards will discuss his work-in-progress with Professor Woodrow Hartzog of Northeastern University. Their forthcoming paper, “the Pathologies of Digital Consent,” tries to make four contributions to how we think about consent in the digital world. First, it offers a conceptual framework for thinking about when consent is valid and when it has defects, and a conceptual vocabulary for talking about different kinds of defects or pathologies that consent models can suffer. Second, it offers a way of thinking about when consent is most valid when we are asked to choose infrequently, when the potential harms that result from the consent are easy to imagine, and where we have the correct incentives to consent consciously and seriously. The further we fall from this gold standard, the more a particular consent is pathological and thus suspect. Third, the theory of consent pathologies complicates the “privacy paradox” – the idea that consumer anxiety about privacy is undermined by the fact that consumers act in privacy-diminishing ways in practice. Understanding the “privacy paradox” in terms of consent pathologies shows how consumers aren’t hypocrites who say one thing but do another. On the contrary, the pathologies of consent show how consumers can be nudged and manipulated by powerful companies against their actual interests, and that this process is easier when consumer protection law far from the gold standard. Professor Richards will also offer an alternative to our over-reliance on consent, which is the theory of consumer trust that is starting to gain traction as Congress debates a federal privacy law.

There will be time for casual conversation and light refreshments before and after the presentation. Please RSVP to

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