How Digital Innovation Has Outpaced Consumer Privacy Protections
“That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” — Chief Justice Roberts in Riley v. California
This pivotal statement from Chief Justice Roberts in Riley v. California extends far beyond smartphone privacy. It highlights a fundamental truth: technology has transformed our world, yet legal frameworks struggle to keep pace. Nowhere is this more evident than in the failing model of informed consent for consumer data.
Two Case Studies in Consent Failure
1. Facebook’s Emotional Manipulation Study
In June 2014, Facebook faced intense backlash after researchers revealed they had manipulated users’ News Feeds to study emotional contagion. While Facebook claimed its Data Use Policy covered such research, the public outcry revealed a critical disconnect:
- No explicit mention of psychological research in policies
- Users never expected their feeds to be experimental tools
- Even with updated policies, true informed consent was absent
2. Google’s Gmail API Expansion
Google’s new API made Gmail data more accessible to third-party developers, raising different concerns:
- Increased volume of sensitive data sharing
- Variable privacy standards among app developers
- Overwhelming consent requests leading to “click fatigue”
Why Traditional Consent Models Fail
The current system suffers from three fatal flaws:
- Information Overload: Dense terms of service documents that no one reads
- Expectation Mismatch: Policies that cover uses consumers would never anticipate
- Scale Problems: The sheer volume of data requests makes meaningful consent impossible
A Path Forward for Digital Consent
Corporate Responsibility
Tech companies must:
- Innovate in consent mechanisms as aggressively as they do in product development
- Implement data minimization practices (like Google’s selective API access)
- Provide clear, specific notifications for unexpected data uses
Regulatory Evolution
The FTC and other agencies need to:
- Move beyond reacting to extreme violations
- Demand innovative consent solutions
- Recognize the systemic failure of current models
The Fundamental Challenge
As Chief Justice Roberts recognized in Riley, digital technologies represent a qualitative shift, not just incremental change. Our approach to informed consent must undergo a similar transformation. The stakes grow higher as:
- Data collection becomes more pervasive
- Analysis techniques grow more sophisticated
- Privacy concerns continue to intensify
The time for piecemeal adjustments has passed. We need a complete reimagining of digital consent that matches the revolutionary nature of the technologies we use every day.
About the Author: Mary DeRosa is a Distinguished Visitor from Practice at Georgetown Law School, specializing in national security and cybersecurity. Her experience includes serving as National Security Council Legal Adviser in the Obama Administration and advising clients on cybersecurity through The Chertoff Group.
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