The full text of this Article may be found here.
31 Fordham Intell. Prop. Media & Ent. L.J. 792 (2021).
Article by Sari Mazzurco*
he online platform political economy—that is, the interrelationship of economic and political power in the exchange of online services for personal information—has endowed platforms with overwhelming power to determine consumers’ information privacy. Mainstream legal scholarship on information privacy has focused largely on an economic problem: individual consumers do not obtain their “optimal” level of privacy due to a bevy of market failures. This Article presents the political issue: that platforms’ hegemonic control over consumers’ information privacy renders the rules they impose illegitimate from a democratic perspective. It argues platform hegemony over consumers’ information privacy is a political problem, in the first instance, due to the social foundations of normative information privacy and the social character of personal information. Although issues affecting society in this manner are typically met with government intervention—through the promulgation of law—or class-action litigation, neither of these safeguards have effectively protected consumers’ information privacy. Rather than empower consumers to determine information privacy norms and how to protect them, the law’s reliance on platform self-regulation through notice and consent has empowered platforms to make these determinations unilaterally.
Given the government’s failure to regulate effectively the platform political economy, this Article proposes an alternative to government action. Specifically, this Article contends that the existing private governance of information privacy ought to strive for democratic legitimacy. This Article draws an analogy between the platform political economy and the labor political economy of the early twentieth century and proposes that concepts and mechanisms from industrial democracy, which sought to legitimate workplace decision-making can serve as a toolkit for the legitimation of information privacy rules.
* Ph.D. Candidate at Yale Law School and Resident Fellow at the Yale Information Society Project. I would like to thank Professor Robert Post, Professor Jack Balkin, Professor Amy Kapczynski, Professor Alvin Kelvorick, Luke Herrine, Kenneth Khoo, Sanjayan Rajasingham, Samantha Grayman, Mitchell Johnston, Omar Shehabi, members of the Information Society Project community, including Christina Spiesel, Ximena Benavides, Przemyslaw Palka, and Michael Karanicolas, and participants in the Media Law & Policy Scholars Conference (2021), including Elettra Bietti, for their helpful feedback and comments.