The Legal and Ethical Challenges of Digital Consent in the Era of Surveillance Capitalism

Abstract:

In today’s digital environment, the concept of user consent faces unprecedented challenges due to the rise of surveillance capitalism— which is an economic model that profits from the extensive collection, analysis, and commercialization of personal data and information. Traditional models of informed consents, were drawn from the medical and contract law, prove inadequate in addressing the complexities of modern digital ecosystems, where data collection is continuous, opaque, and often manipulative. This article examines the legal and ethical limitations of digital consent in this context, focusing on power asymmetries, consent fatigue, and behavioral influence on people. It analyzes key data protection frameworks such as the European Union’s General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA), highlighting their strengths and shortcomings. This article argues that consent alone cannot safeguard privacy or autonomy and advocates for privacy-by-design principles, algorithmic transparency, and enhanced regulatory oversight. Ultimately, it proposes multi-stakeholder governance approaches to rebalance power between users and corporations and restore meaningful agency in digital data practices.

Introduction:

Surveillance capitalism—a term popularized by Shoshana Zuboff—describes an economic system in which personal data is commodified and exploited to predict and influence human behavior for profit.[1] This model, adopted by major digital platforms, fundamentally challenges traditional notions of digital consent. Users frequently “agree” to extensive data collection through lengthy terms of service, often without understanding or meaningful choice.[2] These consent mechanisms are further complicated by power asymmetries, algorithmic manipulation, and pervasive data flows, raising profound legal and ethical questions.

This article explores these challenges, evaluating the limits of traditional consent models in digital environments shaped by surveillance capitalism. It assesses current legal frameworks, such as the GDPR and CCPA, and their attempts to regulate consent. Finally, it proposes reforms that move beyond the narrow concept of consent, emphasizing privacy by design, transparency, and participatory governance.

Background: Surveillance Capitalism and Digital Consent:

Surveillance capitalism refers to the economic system that capitalizes on the extraction and analysis of behavioral data for profit-making purposes.[3] Corporations collect vast amounts of data through social media, apps, internet browsing, and smart devices, often without clear disclosure or genuine user understanding. Digital consent, the legal mechanism meant to authorize such data collection, is typically obtained via clickwrap agreements or privacy policies, which users seldom read or comprehend.[4] Legal standards for consent traditionally require it to be informed, voluntary, and specific.[5] However, digital consent often becomes a checkbox exercise, undermining these criteria. The asymmetry of information and power between users and data collectors challenges the voluntariness and meaningfulness of consent.[6]

Theoretical and Ethical Foundations of Digital Consent:

A. The Limits of Traditional Consent Models:

The principle of informed consent originated in medical ethics and contract law, requiring that individuals receive clear information about risks and benefits before agreeing to a procedure or contract.[7] This model presumes that consent is given voluntarily and with adequate understanding.

However, in digital environments, the reality is starkly different. Users are faced with extensive, complex privacy policies and consent requests that few read or comprehend. Consent is often bundled, presented on a “take it or leave it” basis, and users must accept terms to access essential services.[8] Such conditions undermine the voluntariness and informed nature of consent, reducing it to a mere formality or “clickwrap” agreement.[9]

Legal scholars have critiqued this “click assent” model as insufficient to protect user autonomy.[10] Interface design choices—including defaults, framing, and presentation—further influence consent decisions, limiting genuine agency.[11]

Power Asymmetries and Behavioral Influence:

Surveillance capitalism thrives on power asymmetries between platforms and users.[12] Platforms employ algorithmic nudges and persuasive design to steer user behavior toward greater data disclosure. This instrumentarian power means users may not even be aware of how their decisions are influenced, calling into question the voluntariness of their consent.[13]

Consent fatigue compounds the problem. Constantly prompted to accept cookies, permissions, and updates, users often acquiesce simply to avoid disruption.[14] Consent becomes a ritual lacking meaningful choice.

Ethical Principles Beyond Consent:

Given these challenges, ethical frameworks call for a broader approach to data governance that goes beyond user consent alone.[15] Key principles include:

1. Autonomy and dignity: Users should retain meaningful control over personal data and not be treated merely as data points.[16]
2. Fairness and non-exploitation: Data practices must not exploit users’ vulnerabilities or information asymmetries.[17]
3. Transparency and accountability: Platforms should disclose data use clearly and be accountable for decisions affecting users.[18]
4. Privacy by design: Systems should embed privacy protections and minimize data collection by default.[19]

Together, these principles suggest that meaningful privacy protection requires structural solutions rather than relying solely on user action.

Legal Frameworks Addressing Digital Consent:

The European Union’s General Data Protection Regulation (GDPR):

The GDPR sets the global standard for data protection, requiring that consent be freely given, specific, informed, and unambiguous.[20] It also grants users the right to withdraw consent at any time.[21] The GDPR mandates data protection by design and by default, requiring organizations to minimize data collection and embed privacy protections.[22]

Despite its strengths, GDPR enforcement faces challenges. Consent-or-pay schemes, where users must accept tracking or pay for services, raise questions about the “freely given” nature of consent.[23] Regulatory authorities vary in enforcement intensity, and companies often rely on alternative legal bases for processing data, weakening consent’s protective role.[24]

United States Privacy Laws: CCPA and CPRA:

U.S. privacy law is fragmented, with no comprehensive federal regulation. California’s Consumer Privacy Act (CCPA) and its amendment, the California Privacy Rights Act (CPRA), provide some rights such as access, deletion, and opting out of data sales.[25] However, these laws do not generally require opt-in consent for data processing, offering weaker protections compared to GDPR.[26]

Broad terms of service agreements and the lack of federal oversight allow companies considerable leeway, and judicial decisions sometimes protect data collection as a form of free speech.[27]

Global Trends and Enforcement Issues:

Other jurisdictions are increasingly adopting data protection laws inspired by GDPR.[28] Yet common problems persist: weak regulatory capacity, industry influence over lawmaking, and low public awareness.[29] Without strong enforcement, legal protections remain largely aspirational.

III. Practical Challenges to Digital Consent:

• Consent Fatigue and Illusion of Choice:

The sheer volume of consent requests creates fatigue, leading users to routinely accept terms without consideration.[30] This routine acceptance erodes consent’s validity and user agency.

• Dynamic and Secondary Data Uses

Consent is often given at a single point, but data processing is continuous and evolving. Users rarely consent explicitly to secondary uses such as profiling, sharing, or inference, making consent outdated and ineffective.[31]

• Profiling, Inferences, and Risks of Discrimination

Data collected may be aggregated and analyzed to create detailed profiles, sometimes revealing sensitive attributes or predicting behavior.[32] These inferences can lead to discrimination or unfair treatment without users’ knowledge or consent.

• Vulnerable Populations

Children, the elderly, and those with low literacy are less able to understand or resist complex consent processes.[33] Surveillance capitalism often exploits these vulnerabilities.

• Cross-border Data Flows and Fragmentation:

Global data flows complicate regulatory oversight, creating gaps exploited by companies to avoid stringent rules.[34]

Toward Better Governance: Reform Proposals

Privacy by Design and Default:

Embedding privacy protections into the architecture of systems—such as minimal data collection, anonymization, and default privacy settings—reduces reliance on user consent and enhances protection.[35]

• Modular, Dynamic Consent:

Consent mechanisms should be modular and require renewal when data uses change significantly, improving specificity and user understanding.[36]

• Algorithmic Transparency and Redress:

Platforms should disclose how algorithms use personal data and allow users to challenge decisions affecting them.[37]

• Data Trusts and User-Centric Control:

Emerging models like data trusts or personal data stores empower users to manage their data and negotiate terms collectively or individually.[38]

• Strengthening Regulatory Enforcement:

Effective privacy protection requires well-funded, independent regulatory bodies with power to audit, enforce, and penalize violations.[39]

• Multi-Stakeholder Governance;

Involving civil society, academia, regulators, and users in governance fosters accountability and ethical standards.[40]

Conclusion:

Digital consent, in the age of surveillance capitalism presents profound legal and ethical challenges. The rise of surveillance capitalism exposes the profound limitations of traditional digital consent, which often serves as a hollow formality rather than a meaningful safeguard. To protect individual autonomy and privacy in this complex digital environment, legal and ethical frameworks must evolve beyond consent alone. Privacy-by-design principles, enhanced transparency, user empowerment, and robust regulatory oversight are essential to rebalancing power between users and data-harvesting platforms. Only through comprehensive governance reforms can digital consent regain its significance as a tool to protect fundamental rights in the digital age.

Reference(S):

[1] Shoshana Zuboff, *The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power* (2019).

[2] Elizabeth Edenberg & Meg Leta Jones, Analyzing the Legal Roots and Moral Core of Digital Consent, *New Media & Soc.* (2019).

[3] Id.

[4] Daniel J. Solove & Woodrow Hartzog, “The FTC and the New Common Law of Privacy,” Colum. L. Rev. 114, 583 (2014).

[5] RESTATEMENT (SECOND) OF TORTS § 892B (1979).

[6] Helen Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life (2009).

[7] John Wilbanks, Design Issues in E-Consent, 46 *J.L. Med. & Ethics* 39 (2018).

[8] Id.

[9] Jasmin Frankel, Surveillance Capitalism and the Right to Be Forgotten: Does the GDPR or the CCPA Better Protect Individual Data Privacy in a Surveillance Economy? (Harvard Univ. Master’s Thesis 2021).

[10] Edenberg & Jones, supra note 2.

[11] Wilbanks, supra note 3.

[12] Julie E. Cohen, *Between Truth and Power: The Legal Constructions of Informational Capitalism* (2019).

[13] Id.

[14]  Id.

[15] Helen Nissenbaum, *Privacy in Context: Technology, Policy, and the Integrity of Social Life* (2009).

[16]  Id.

[17] Id.

[18]  Id.

[19] GDPR, Regulation (EU) 2016/679, art. 25, 2016 O.J. (L 119) 1.

[20] Id. Arts. 4(11), 7.

[21]  Id. Art. 7(3).

[22] Id. Art. 25.

[23] European Data Protection Board, Guidelines on Consent under Regulation 2016/679 (2020).

[24] Id.

[25] California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100–1798.199 (West 2020).

[26] Id.

[27] See, e.g., *Riley v. California*, 573 U.S. 373 (2014) (discussing privacy and search doctrines).

[28] Brazil’s General Data Protection Law (LGPD), India’s Personal Data Protection Bill (pending).

[29] See generally Crawford & Schultz, Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms, 55 *B.C. L. Rev.* 93 (2014).

[30] Cohen, supra note 8.

[31] Id.

[32] Kate Crawford & Jason Schultz, supra note 25.

[33] Nissenbaum, supra note 11.

[34] Cohen, supra note 8.

[35] GDPR, supra note 15, art. 25.

[36] Wilbanks, supra note 3.

[37] Crawford & Schultz, supra note 25.

[38] Id.

[39] Edenberg & Jones, supra note 2.

[40] Id.