Nancy S. Kim of California Western and D. A. Jeremy Telman of Valparaiso have written Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent, Forthcoming in the Missouri Law Review. Here is the abstract:
Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the myth of contractual consent muted criticisms that otherwise might be directed at the real data-mining masterminds. By clicking “agree,” consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put and the entities (including the federal government) with whom their information would be shared. We also question the distinction between governmental actors and private actors in this realm, as the Internet giants increasingly exploit contractual mechanisms to operate with quasi-governmental powers in their relations with consumers. We propose that, in their efforts to better protect consumer data, regulators and policymakers should demand more than mere contractual consent as an indicator of consumers’ grant of permission for the use of their data.