Brett Frischmann

@brettfrischmann

Interdisciplinary researcher & teacher (Villanova Univ.). Infrastructure. Knowledge Commons. Re-Engineering Humanity. Tech & Humanity/Society. IP Theory. Lately, Friction-in-design, Age Gating. TEDx:

1.467 Folgt2.096 Follower621 Posts

Website Bluesky

Ist das dein Profil?Übernimm es — dann gehört dir brettfrischmann.dirty.social.Profil übernehmen

Brett Frischmann@brettfrischmann· Feb 19

Abstract in image w/ alt text. 2/3

The moral magic of consent in privacy law is pure illusion. Existing consent mechanisms transform legal and social relationships without requiring actual consent. Our surveillance-based economy is thus built upon countless legal lies.

Privacy scholars lament this state of affairs. They acknowledge that consent is illusory and broken. Some argue it should be abandoned and replaced with substantive rules. Others argue it is "murky" and of questionable legitimacy but should still be tolerated as a governance mechanism. Most arguments about consent miss the mark, however, by failing to commit to a morally defensible theory of consent and to engage with plausible mechanisms for improving how it works in practice.

This article is the first to examine how to reform the moral magic of consent in privacy law so that the law only transforms legal and social relationships when actual consent exists. We advance a morally defensible theory of consent based on subjective intent and understanding. Then, contrary to conventional wisdom, we show how such a normative commitment is doctrinally and practically possible.

We propose a new legal standard of demonstrably informed consent. This standard would put the burden on the party drafting and designing consent mechanisms to generate reliable evidence that a person actually understands the consequential terms to which the person agrees. A doctrine that requires actual comprehension, rather than notice and assent, is feasible and normatively desirable.

The article is also the first to engage with the friction-in-design literature and explore how to operationalize our novel legal requirement. We demonstrate that mechanisms for generating reliable evidence are not cost-prohibitive. Companies regularly employ this type of friction-in-design in online ethics and other training modules. Using the same mechanisms or new ones to generate and test comprehension is feasible, as results from our preliminary experimental studies show. ...

Brett Frischmann@brettfrischmann· Jul 31

Brett Frischmann@brettfrischmann· Jul 11

Reminds me of the Letter to the Editor in Scientific American back in 2019:

For example, he envisions a digital dou-
ble going on millions of virtual dates and
living countless probable lives so that it
can deliver you the optimal romantic part-
ner and life. But life and romance are not
algorithmic optimization problems com-
prehensible in the language of computa-
tion. What if the costs of going on some
bad dates let you to learn something about
yourself and others? How will you know
what you want without any experiences?

Brett Frischmann@brettfrischmann· May 20

In just a few weeks!!!

Brett Frischmann@brettfrischmann· May 12

A Defense of Demonstrably Informed Consent in Privacy Governance. Outline.

Outline

1. Introduction
2. Preliminaries on the concept of consent
3. Consent is necessary but insufficient
a. Consent is necessary for privacy
b. Consent is insufficient for privacy
4. Scholarly and policy arguments about consent identify shortcomings of existing consent mechanisms but fail to engage adequately with mechanism design that could improve consent mechanisms
a. Failed disclosure mandates
b. Transaction cost analysis
c. Cognitive biases
d. Consumer beliefs and preferences
5. Reform proposal
a. Need and opportunity for reform
b. Legal requirement of demonstrably informed consent
c. Friction-in-design mechanisms to operationalize demonstrably informed consent
d. Role of standards, regulations, and courts
6. Some applications and preliminary experiments
a. Human subjects research
b. Parental consent
c. Lawyer-client confidentiality requires informed consent of client when lawyer inputs information pertaining to representation in a GenAI tool
d. Cookie consent mechanisms
e. Digital contracts with privacy terms
i. App download
ii. Course management software log-in
iii. Commercial website / service
iv. Gym membership
f. Photograph and recording consent and release form
7. Responding to anticipated objections
8. Conclusion

Brett Frischmann@brettfrischmann· May 12

A Defense of Demonstrably Informed Consent in Privacy Governance. Abstract, page 2/2.

For privacy laws generally, child privacy in particular, and many related areas of law where parental consent is required, this article proposes a new legal standard of demonstrably informed consent. This rule would put the burden on the party drafting and designing consent mechanisms to generate reliable evidence that a person actually understands the consequential terms to which the person agrees. A doctrine that requires actual comprehension, rather than notice and assent, is feasible and normatively desirable. Of course, determining what are the substantively important terms presents an issue where regulation or court decisions may be required. Technically, companies can test and develop mechanisms for generating reliable evidence of informed consent to substantively important terms. Notably, this will require more than mere disclosure. It requires comprehension, and thus teaching and confirmation that a person understands terms to which the person agrees. Digital mechanisms that utilize prosocial friction-in-design for such purposes already exist, but there is no incentive to deploy them. The new demonstrably informed consent standard would change that.
...
While it may seem mundane, learning about the digital terms that govern so much of our modern lives would constitute a significant social benefit. After all, learning about the terms of trade is the only way to have a preference about those terms; it is the only basis for making demands that drive competition or even legal change. A demonstrably informed consent standard would press companies to explain, teach and confirm understanding in order to obtain consent. Over time, this process can empower consumers, whether to drive competition or to advocate politically for meaningful privacy laws.

Brett Frischmann@brettfrischmann· May 12

A Defense of Demonstrably Informed Consent in Privacy Governance. Outline

Brett Frischmann@brettfrischmann· May 12

A Defense of Demonstrably Informed Consent in Privacy Governance. Abstract, page 1/2.

Brett Frischmann@brettfrischmann· Mar 10

Must read. @randomwalker.bsky.social is coming to Villanova in March 19th! Will post more details soon. Need to unpack a few more boxes

Brett Frischmann@brettfrischmann· Jan 10

Birthday gifts for Jake. He loved Old Mans War @scalzi.com

Brett Frischmann@brettfrischmann· Dec 2

My draft Review Session slide re. use of Gen AI on the final