A Contextual Approach to Privacy Online

Abstract

Recent media revelations have demonstrated the extent of third-party tracking and monitoring online, much of it spurred by data aggregation, profiling, and selective targeting. How to protect privacy online is a frequent question in public discourse and has reignited the interest of government actors. In the United States, notice-and-consent remains the fallback approach in online privacy policies, despite its weaknesses. This essay presents an alternative approach, rooted in the theory of contextual integrity. Proposals to improve and fortify notice-and-consent, such as clearer privacy policies and fairer information practices, will not overcome a fundamental flaw in the model, namely, its assumption that individuals can understand all facts relevant to true choice at the moment of pair-wise contracting between individuals and data gatherers. Instead, we must articulate a backdrop of context-specific substantive norms that constrain what information websites can collect, with whom they can share it, and under what conditions it can be shared. In developing this approach, the paper warns that the current bias in conceiving of the Net as a predominantly commercial enterprise seriously limits the privacy agenda.

Keywords: privacy, cyberlaw, contextual integrity, third-party tracking, privacy law