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- Title
Carpenter's Consumers.
- Authors
Barrett, Lindsey
- Abstract
The laws governing what data corporations can collect heavily influence the extent to which law enforcement can pry into our lives. Consumer privacy laws have frequently struggled to protect people from digital exploitation and to prevent corporate surveillance from facilitating government surveillance, in part thanks to the notice and choice model's flawed understanding of the privacy decisions people are capable of making. In Carpenter v. United States, a Supreme Court majority recognized that failing to consider how technology has fundamentally changed the premises the third-party doctrine is based on would extend the government's unacceptably broad license to arbitrarily surveil, and accordingly shaped its ruling to address the normative objective of preventing the further erosion of civil liberties. Consumer privacy law suffers from the same approach to privacy protections that Roberts repudiated with Carpenter's doctrinal shift: it is unduly focused on individual actions and expectations, ignores the impact of power dynamics on privacy decision-making, and generally eschews a normative approach to crafting privacy protections in favor of a descriptive one. As ubiquitous corporate data collection makes the flaws of consumer privacy protections ever more relevant to privacy from the government, policymakers should emulate the approach Roberts takes in Carpenter, both because of the impact consumer data collection has on Fourth Amendment protections, and because a laissez-faire consumer privacy regime threatens democratic values distinct from law enforcement concerns. In turn, judges should reject the theory of Fourth Amendment analysis that would have them rely on consumer privacy statutes and other forms of positive law to determine the level of privacy protections people receive. The Fourth Amendment should not incorporate consumer privacy law's failures: drafters of consumer privacy laws should instead strive to emulate Carpenter's success.
- Subjects
UNITED States; DATA protection laws; CONSUMER law; RIGHT of privacy
- Publication
Washburn Law Journal, 2020, Vol 59, Issue 1, p53
- ISSN
0043-0420
- Publication type
Article