Christine Jolls, Privacy, Rationality, and Consent
Comment by: Christine Jolls
Workshop draft abstract:
The relationship between privacy rights and consent has been at the heart of privacy debates for decades. Prominent theorists have placed consent at the core of their definitions of privacy, and at the level of doctrine the traditional common law approach has viewed consent as a categorical defense to claims of privacy invasion. But both the theorists and the traditional common law approach are focused on circumstances quite different from the highly relational contexts in which questions of privacy and consent often arise today. In the workplace and other such relational contexts, predictable human failures of rationality frequently undermine the normative force of consent. While blanket in-advance consents are often sought, and received, for privacy invasions that might (or might not) materialize down the road, failures of rationality are a serious concern in these contexts. Interestingly, the common law of workplace privacy seems to reflect an implicit awareness of these failures of human rationality, as the legal force of consent is often blunted in just the contexts in which failures of rationality are most likely. In this sense the common law of workplace privacy can be said to track other common law rules, in areas ranging from tort law to corporate law to patent law, that are believed to reflect an implicit behavioral rationality.