Technoconsen(T)Sus

Abstract

Law is contributing to an information security paradox. Consumers are regularly "consenting" to the installation of computer code that makes them more vulnerable to harms such as identity theft. In particular, digital rights management technology accompanying digital music has recently left a wake of compromised user machines. Using this case study of security-invasive digital rights management technology, this article argues that a fundamental tension exists among intellectual property law, computer intrusion law and contract law regarding meaningful consumer consent in digital contexts. This article proposes to ease this noise in consent doctrine through creating an objective "reasonable digital consumer" standard based on empirical testing of real consumers.

Keywords: data, information, security, contract, consent, computer, intellectual property, copyright, trademark, identity theft, intrusion, hacking

JEL Classification: K12, K14, K29, K19, O32, O33, O38