Soft Surveillance, Hard Consent

Personally Yours, Vol. 6, pp. 1-14, 2006

15 Pages Posted: 13 Jul 2006

See all articles by Ian R. Kerr

Ian R. Kerr

University of Ottawa - Common Law Section

Jennifer Barrigar

University of Ottawa - Faculty of Law

Jacquelyn Burkell

Faculty of Information and Media Studies

Katie Black

University of Ottawa - Faculty of Law

Abstract

This article explores how, like newer approaches to State paternalism, both public and private sector surveillance increasingly rely on what Gary Marx refers to as 'soft' measures. Taking their cue from the behavioral sciences, governments and businesses have come to realize that kinder, gentler approaches to personal information collection work just as well as coercion or deceit - and that engineering consent is the key to their success. In this article we contemplate various aspects of the role of consent in the collection, use and disclosure of personal information. After demonstrating how consent-gathering processes are often designed to quietly skew individual decision-making while preserving the illusion of free choice, we point out the dangers of these subtle schemes as well as the inadequacies of current privacy laws in dealing with them. In examining some potential remedies, we investigate the practical implications of data protection provisions that allow individuals to 'withdraw consent.' Canvassing recent interdisciplinary work in psychology and decision theory, we explain why such 'withdrawal of consent' provisions will not generally provide effective relief and argue that there is a need for a higher threshold of initial consent in privacy law than in private law.

Keywords: Consent, Decision Theory, Bounded Rationality, Soft Surveillance, Soft Paternalism

Suggested Citation

Kerr, Ian R. and Barrigar, Jennifer and Burkell, Jacquelyn and Black, Katie, Soft Surveillance, Hard Consent. Personally Yours, Vol. 6, pp. 1-14, 2006. Available at SSRN: https://ssrn.com/abstract=915407

Ian R. Kerr (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 (Phone)

Jennifer Barrigar

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

Jacquelyn Burkell

Faculty of Information and Media Studies ( email )

FIMS and Nursing Building, Rm. 2050
London, Ontario N6A 5B9
Canada
5q9-661-2111 ext 88506 (Phone)

Katie Black

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5 K1N 6N5
Canada

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