Abstract

This paper argues that if the critics of the currently dominant notice-and-consent model of governing digital data transactions are correct, then they should oppose political reforms of the model. The crux of the argument is as follows: the reasons the critics give for doubting the effectiveness of notice-and-consent in protecting user privacy (namely, ordinary users’ various cognitive deficiencies and the inherent inscrutability of the subject matter) are also reasons for doubting the effectiveness of protecting user privacy through democratic or regulatory means. Furthermore, insofar as attempts to improve the notice-and-consent model through more legislation or regulation would also involve more coercion than the status quo, they should be resisted on normative grounds. So, out of the bad options we have when it comes to protecting digital privacy, it seems – contrary to the majority position advanced in the literature – that we should stick with notice-and-consent.