Soft Surveillance, Hard Consent
By: Ian Kerr, Jennifer Barrigar, Jacquelyn Burkell and Katie Black
(2006) 6 Personally Yours 1-14
This article explores how, like newer approaches to State paternalism, both public and private sector surveillance increasingly rely on what Gary Marx refers to as “soft” measures. Taking their cue from the behavioral sciences, governments and businesses have come to realize that kinder, gentler approaches to personal information collection work just as well as coercion or deceit — and that engineering consent is the key to their success. In this article we contemplate various aspects of the role of consent in the collection, use and disclosure of personal information. After demonstrating how consent-gathering processes are often designed to quietly skew individual decision-making while preserving the illusion of free choice, we point out the dangers of these subtle schemes as well as the inadequacies of current privacy laws in dealing with them. In examining some potential remedies, we investigate the practical implications of data protection provisions that allow individuals to “withdraw consent.” Canvassing recent interdisciplinary work in psychology and decision theory, we explain why such “withdrawal of consent” provisions will not generally provide effective relief and argue that there is a need for a higher threshold of initial consent in privacy law than in private law.
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