Consent, Background Justice and Patterned Privacy Principles

Abstract

Notice and consent approaches, being the most prevalent legal frameworks, have in recent years come under fire. I suggest they fail because they rest on a historical approach to privacy justice, whereby the justice of a particular state of affairs is a function of whether each transaction on the way was just. Instead, I make use of a background justice framing. Even where consent is present it is inadequate to secure the values at stake. When we only assess the fairness or freedom of individual information transactions, we fail to see the way many can undercut the very values we seek to secure by requiring consent for disclosures in the first place. I propose a patterned principle to regulate the distribution of individual control over privacy, and to set the background against which individual notice and consent can still play a role, albeit a limited one.