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96 Wash. U. L. Rev. 1461 (2018-2019)
The Pathologies of Digital Consent

handle is hein.journals/walq96 and id is 1499 raw text is: THE PATHOLOGIES OF DIGITAL CONSENT NEIL RICHARDS* AND WOODROW HARTZOG** ABSTRACT Consent permeates both our law and our lives-particularly in the digital context. 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 are frequently asked to consent to terms of service, privacy notices, the use of cookies, and so many other commercial practices. Consent is important, but it's possible to have too much of a good thing. As 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. 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 frameworkfor 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 * Koch Distinguished Professor of Law & Director, Cordell Institute, Washington University. ** Professor of Law and Computer Science, Northeastern University. For helpful comments on prior drafts and discussions on this topic, we would both like to thank Scott Baker, Danielle Citron, Jon Heusel, Jonathan King, and Katie Shilton. We would particularly like to thank Ari Waldman for his partnership in the conference that led to this paper, to Rachel Mance for her outstanding work in planning and running the conference, and to Luis Fernandez and Sin Nelson for their excellent research assistance. 1461

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