Abstract
This paper critically evaluates the market-based system governing data collection in the United States. The discussion is centred around Big Tech, a group of information intermediaries responsible for the ongoing extraction and exploitation of consumer data. The exploitative system is enabled by the ubiquitous privacy policy, which ostensibly offers data subjects ‘notice’ of data collection and the ‘choice’ to consent to said collection. This paper critiques the ‘notice and choice’ model, concluding the combined ambiguity and opacity of the privacy policy fail to offer subjects meaningful control over their data. To substantiate this argument, the paper evaluates the suitability of the market-based system in a broader sense, arguing that data collection practices precludes the knowledge parity necessary for an operative and fair market-based system. The paper concludes by ascertaining the suitability of state-based regulation, identifying data’s intrinsic relationship with ideals that are core to the Western tradition: equality, democracy, and autonomy.
Highlights
This section will address the specific inadequacies of the current regulatory framework
It has been argued that neoliberal ideals have formed the regulatory basis for many sectors including Big Tech
Big Tech is distinguishable from its financial counterparts in terms of the intangible harm it instigates
Summary
Privacy’ test, extending the Fourth Amendment[57] prohibition of unlawful searches and seizures to areas the individual subjectively deems private.[58] The case advances the doctrine of unlawful encroachment of public entities, excluding private corporations from its ambit This trend is exhibited throughout the American legal landscape–its founding document, the Constitution,[59] was enacted in defiance of unjust taxes and oversaturation of power, enshrining republicanism and liberty as civil essentialities.[60] Contrastingly, European conceptions of privacy are rooted in dignity, largely due to the ‘reaction against fascism and especially against Nazism’.61. It is clear from the aforementioned cases that conceptualising privacy in reductionist terms proves to be a significant barrier in privacy litigation.[69]
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