Article by Robert Gellman: “After decades, we still talk about the role of notice and choice in privacy. Yet there seems to be broad recognition that notice and choice do nothing for the privacy of consumers. Some American businesses cling to notice and choice because they hate all the alternatives. Some legislators draft laws with elements of notice and choice, either because it’s easier to draft a law that way, because they don’t know any better or because they carry water for business.
For present purposes, I will talk about notice and choice generically as consent. Consent is a broader concept than choice, but the difference doesn’t matter for the point I want to make. How you frame consent is complex. There are many alternatives and many approaches. It’s not just a matter of opt-in or opt-out. While I’m discarding issues, I also want to acknowledge and set aside the eight basic Fair Information Practices. There is no notice and choice principle in FIPS, and FIPs are not specifically important here.
Until recently, my view was that consent in almost any form is pretty much death for consumer privacy. No matter how you structure it, websites and others will find a way to wheedle consent from consumers. Those who want to exploit consumer data will cajole, pressure, threaten, mystify, obscure, entice or otherwise coax consumers to agree.
Suddenly, I’m not as sure of my conclusion about consent. What changed my mind? There is a new data point from Apple’s App Tracking Transparency framework. Apple requires mobile application developers to obtain opt-in consent before serving targeted advertising via Apple’s Identifier for Advertisers. Early reports suggest consumers are saying “NO” in overwhelming numbers — overwhelming as in more than 90%.
It isn’t this strong consumer reaction that makes me think consent might possibly have a place. I want to highlight a different aspect of the Apple framework….(More)”.