Federal Legislation Does Not Sufficiently Protect American Data Privacy
![handle is hein.journals/nkenlr49 and id is 303 raw text is: FEDERAL LEGISLATION DOES NOT SUFFICIENTLY PROTECT
AMERICAN DATA PRIVACY
Jason Heitz*
I. INTRODUCTION
Though Americans frequently encounter privacy policies, they do not
understand what data they give away by consenting to them.' A Pew Research
Center survey showed that 81% of Americans are asked to agree to privacy policies
at least monthly, but only 22% of Americans always or often read the privacy
policies before agreeing to them.2 Further still, of the Americans who do read the
privacy policies, only 13% understand a great deal of what they are reading.3
Though the vast majority of users do not read privacy policies, courts determine
that the user gives informed consent because they count the hypothetical
knowledge that the user would have if they actually read the policy.4 The user has
a duty to read the privacy policy, and as long as the user has a sufficient opportunity
to read and understand the policy, a court will rule that the user knows what it
says.5 Thus, the user provides informed consent to something they either have
not read, or have read, but have not understood.6
It is no secret that users do not read privacy notices. Google's website goes so
far as to state, [w]e know it's tempting to skip these Terms of Service . . . .' In
2008, the average American encountered approximately 1,462 privacy policies in
one year,8 and that number has increased with the expansion of the Internet since
2008.9 It would take 154 hours to skim and 244 hours to read each of the 1,462
* Associate Editor, Northern Kentucky Law Review, Volume 49; J.D. Candidate, Northern
Kentucky University Chase College of Law. Special thanks to Professor Christopher Gulinello, Sarah
Benedict, Jessica Wilkerson, Nathan Sparks, and the Northern Kentucky Law Review members for
their invaluable comments and constructive feedback.
1. Brooke Auxier et al., Americans and Privacy: Concerned, Confused and Feeling Lack of
Control Over Their Personal Information, PEw RESEARCH CENTER (Nov. 15, 2019),
https://www.pewresearch.org/internet/2019/11/15/americans-attitudes-and-experiences-with-
privacy-policies-and-laws/.
2. Id
3. Id
4. Robert H. Sloan & Richard Warner, Beyond Notice and Choice: Privacy, Norms, and
Consent, 14 J. HIGH TECH L. 370, 383 (2013).
5. Id at 381.
6. Id at 379.
7. Google Terms of Service, GOOGLE, https://policies.google.com/terms (last visited Aug. 14,
2021).
8. Aleecia M. McDonald & Lorrie Faith Cranor, The Cost of Reading Privacy Policies, 4 /S:
A J. OF L. AND POL'Y FOR THE INFO. Soc'Y 543, 561 (2008).
9. Alexis C. Madrigal, Reading the Privacy Policies You Encounter in a Year Would Take
76 Work Days, THE ATLANTIC (March 1, 2012),
https://www.theatlantic.com/technology/archive/2012/03/reading-the-privacy-policies-you-
encounter-in-a-year-would-take-76-work-days/253 851/.](ViewImageLocal?handle=hein.journals/nkenlr49&div=16&collection=&method=preview&ext=.png&size=3)
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Federal Legislation Does Not Sufficiently Protect American Data Privacy
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