The Quantitative Study of Privacy-Policy Decisions in the Draft Restatement of Consumer Contracts

Georgetown University Law Center, 2017

43 Pages Posted: 18 Jul 2017 Last revised: 27 Jul 2017

Gregory Klass

Georgetown University Law Center

Date Written: July 12, 2017

Abstract

The draft Restatement of the Law of Consumer Contracts includes six quantitative studies of judicial decisions, each used to support a rule or comment. This article examines the Reporters’ study of courts’ treatment of privacy policies. The Reporters use this study to support a Comment stating that courts generally treat a business’s privacy policy as a term in its contract with the consumer. This article finds that the Reporters’ data do not support their conclusions.

Of the fifty-one decisions in the Reporters’ dataset, this study finds that only fifteen reach a holding on their question. All are from trial courts, most on a motion to dismiss. Among those fifteen decisions, the ratio of decisions holding that the privacy policy is a contract term to decisions holding that it is not a term is slightly less than 3:1, much less than the 7:1 ratio the Reporters find. Given the small sample size, it is not clear that this result is sufficiently strong either to predict case outcomes or to infer the rule courts are applying. This study also shows that there is not a strong trend toward greater enforcement in contract. The trend the Reporters observe might be an artifact of their decision to include more decisions in their study, particularly cases in which the business invoked its privacy policy as a defense against a noncontractual privacy violation. The decisions in those cases, however, turn on consent rules drawn from tort law, not contract. Finally, an examination of citations indicates that decisions treating privacy policies as contract terms have not been more influential than those denying enforcement in contract, again contrary to the Reporters’ observations.

In addition to presenting these results, the article discusses why coding privacy-policy decisions can be especially difficult, and the results of that coding sometimes indeterminate. The numbers in quantitative studies of case outcomes can mask the many interpretive judgment calls needed to support them. The article also argues that the Restatement process might not be suited to producing large-scale quantitative studies of case outcomes.

Keywords: contract law, consumer contracts, privacy law, privacy policies, empirical legal studies, quantitative caselaw studies

Suggested Citation

Klass, Gregory, The Quantitative Study of Privacy-Policy Decisions in the Draft Restatement of Consumer Contracts (July 12, 2017). Georgetown University Law Center, 2017. Available at SSRN: https://ssrn.com/abstract=3001212

Gregory Klass (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

HOME PAGE: http://www.law.georgetown.edu/faculty/klass-gregory.cfm

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