Contracting for Personal Data

32 Pages Posted: 9 Oct 2019

See all articles by Kevin E. Davis

Kevin E. Davis

New York University School of Law

Florencia Marotta-Wurgler

New York University School of Law

Date Written: October 1, 2019

Abstract

Is contracting for the collection, use, and transfer of data like contracting for the sale of a horse or a car or licensing a piece of software? Many are concerned that conventional principles of contract law are inadequate when some consumers may not know or misperceive the full consequences of their transactions. Such concerns have led to proposals for reform that deviate significantly from general rules of contract law. However, the merits of these proposals rest in part on testable empirical claims. We explore some of these claims using a hand-collected data set of privacy policies that dictate the terms of the collection, use, transfer, and security of personal data. We explore the extent to which those terms differ across markets before and after the adoption of the General Data Protection Regulation (GDPR). We find that compliance with the GDPR varies across markets in intuitive ways, indicating that firms take advantage of the flexibility offered by a contractual approach even when they must also comply with mandatory rules. We also compare terms offered to more and less sophisticated subjects to see whether firms may exploit information barriers by offering less favorable terms to more vulnerable subjects.

Keywords: contracts, standard form contracts, privacy, electronic commerce

Suggested Citation

Davis, Kevin E. and Marotta-Wurgler, Florencia, Contracting for Personal Data (October 1, 2019). NYU L. Rev. Vol. 94(4) 2019; NYU Law and Economics Research Paper No. 19-37. Available at SSRN: https://ssrn.com/abstract=3466463

Kevin E. Davis

New York University School of Law ( email )

40 Washington Square South
Vanderbilt Hall, Room 335
New York, NY 10012-1099
United States
212-992-8843 (Phone)

Florencia Marotta-Wurgler (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

HOME PAGE: http://its.law.nyu.edu/facultyprofiles/profile.cfm?personID=27875

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