The Pathologies of Digital Consent
Washington University Law Review
This article offers four contributions to improve our understanding of consent in the digital world. First, we offer a conceptual vocabulary of “the pathologies of consent”—a framework for talking about different kinds of defects that consent models can suffer, including unwitting consent, coerced consent, and incapacitated consent. Second, we offer three conditions for when consent will be most valid in the digital context: when choice is infrequent, when the potential harms resulting from that choice are vivid and easy to imagine, and where we have the correct incentives choose consciously and seriously. The further we fall from these conditions, we argue, the more a particular consent will be pathological and thus suspect. Third, we argue that our theory of consent pathologies sheds light on the so-called “privacy paradox”—the notion that there is a gap between what consumers say about wanting privacy and what they actually do in practice. Understanding the “privacy paradox” in terms of consent pathologies shows how consumers are not hypocrites who say one thing but do another. On the contrary, the pathologies of consent reveal how consumers can be nudged and manipulated by powerful companies against their actual interests, and that this process is easier when consumer protection law falls far from the gold standard. In light of these findings, we offer a fourth contribution—the theory of consumer trust we have suggested in prior work and which we further elaborate here as an alternative to an over-reliance on increasingly pathological models of consent.
Neil Richards and Woodrow Hartzog,
The Pathologies of Digital Consent,
96 Wash. U. L. Rev. 1461
Available at: https://openscholarship.wustl.edu/law_lawreview/vol96/iss6/11