12 - Harmful Online Personal Data Practices

Summary

[Nonconsensual website interactions are] particularly likely when incentives are asymmetrically distributed in the community, as when buyers and sellers have their own conflicting norms. The norm that results from this conflict may represent a variety of things besides consensus: superior bargaining power on the prevailing side, collective action problems on the other side, or the use of strategic behavior.

Mark Lemley

Introduction

There is a burgeoning privacy crisis caused in large part to the explosive growth of the Internet. In large measure, this crisis has emerged in a legal vacuum, as there is little positive lawthat directly regulates the private collection of personal data. Because of this legal vacuum, informal social norms have the potential to play an especially important role in the regulation of data collection online. This chapter begins an examination of the emergence of website norms pertaining to data collection that have emerged in the past decade. This examination will provide another occasion to test the pattern conception of norms developed in Part One and further explored in Part Two. This case study will also be instructive regarding the possibilities for more effective regulation of online privacy, on a going forward basis.

The vast majority of commercial websites use their interactions with consumers as the occasion to collect personal data about these consumers. The connection between the collection of personal data and personal privacy is straightforward; the more personal data that websites collect, store, and use, the less privacy that data subjects have. This reduction in privacy may be justified if the data subjects agree to exchange their personal information for something they prefer more.