Online Privacy and the First Amendment: An Opt-In Approach to Data Processing

Abstract

An individual has little to no ability to prevent online commercial actors from collecting, using, or disclosing data about her. This lack of individual choice is problematic in the Big Data era because individual privacy interests are threatened by the ever increasing number of actors processing data, as well as the ever increasing amount and types of data being processed. This Article argues that online commercial actors should be required to receive an individual’s opt-in consent prior to data processing as a way of protecting individual privacy. I analyze whether an opt-in requirement is constitutionally permissible under the First Amendment and conclude that an opt-in requirement is fully consistent with the First Amendment rights of data processors.

Keywords: First Amendment, Privacy, Data, Opt-In