Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent

58 Pages Posted: 5 Mar 2015 Last revised: 4 Aug 2016

See all articles by Nancy S. Kim

Nancy S. Kim

California Western School of Law

D. A. Jeremy Telman

Valparaiso University Law School

Date Written: March 3, 2015

Abstract

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put and the entities (including the federal government) with whom their information would be shared. We also call into question the distinction between governmental actors and private actors in this realm, as the Internet giants increasingly exploit contractual mechanisms to operate with quasi-governmental powers in their relations with consumers. As regulators and policymakers focus on how to better protect consumer data, we propose that solutions that rely upon consumer permission adopt a more exacting and limited concept of the consent required before private entities may collect or make use of consumer’s information where such uses touch upon privacy interests.

Keywords: privacy, contract, wrap contracts, consent, Internet, cyberlaw, consumer

JEL Classification: K10, K12, K19

Suggested Citation

Kim, Nancy S. and Telman, D.A. Jeremy, Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent (March 3, 2015). 80 Missouri Law Review 723 (2015); Valparaiso University Legal Studies Research Paper No. 15-3; California Western School of Law Research Paper No. 15-01. Available at SSRN: https://ssrn.com/abstract=2573477

Nancy S. Kim (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

D.A. Jeremy Telman

Valparaiso University Law School ( email )

656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States
219-465-7811 (Phone)
219-465-7872 (Fax)

HOME PAGE: http://www.valpo.edu/law/faculty/jtelman/

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