New Essay: The Irony of Privacy Class Action Lawsuits

By Eric Goldman

I’ve posted a new essay to SSRN titled The Irony of Privacy Class Action Lawsuits. It should be published later this year in the Journal of Telecommunications and High Technology Law at University of Colorado. The essay comes out of a panel discussion we had at Colorado Law in December on the Economics of Privacy. The version I’ve posted is still in draft form, so I should be able to make some changes. I welcome your comments.

The essay issues a challenge to privacy advocates who support enforcement of privacy violations via class action lawsuits. I argue that the structure of class action lawsuits contains a number of attributes that privacy advocates consider bad business practices, such as requiring consumers to opt-out and providing inadequate notice-and-choice. Privacy advocates’ reaction to the essay has almost universally been “D’oh!” However, I don’t think the irony (or, at least, my explication of it) is compelling enough to persuade privacy advocates to strike class action enforcement from their toolkit.

More generally, the essay suggests that there may be value to more closely examining the various enforcement institutions for privacy violations. Comparative enforcement institution analysis is a perennial topic in consumer/advertising law (and many other disciplines, I’m sure). Yet, I’m not aware of the institutional competence issue getting a lot of attention in the privacy scholarship, which is surprising given the vast volume of privacy scholarship. If I’ve missed something, please let me know.

The essay is a quick read, and one reader called the ironies “delicious.” I hope you’ll check it out.

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The abstract:

In the past few years, publicized privacy violations have regularly spawned class action lawsuits in the United States, even when the company made a good faith mistake and no victim suffered any quantifiable harm. Privacy advocates often cheer these lawsuits because they generally favor vigorous enforcement of privacy violations, but this essay encourages privacy advocates to reconsider their support for privacy class action litigation. By its nature, class action litigation uses tactics that privacy advocates disavow. Thus, using class action litigation to remediate privacy violations proves to be unintentionally ironic.

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