Daniel J. Solove (George Washington University Law School) has posted “The Limitations of Privacy Rights” (98 Notre Dame Law Review, forthcoming 2023) on SSRN. Here is the abstract:
Individual privacy rights are often at the heart of information privacy and data protection laws. The most comprehensive set of rights, from the European Union’s General Data Protection Regulation (GDPR), includes the right to access, right to rectification (correction), right to erasure, right to restriction, right to data portability, right to object, and right to not be subject to automated decisions. Privacy laws around the world include many of these rights in various forms.
In this article, I contend that although rights are an important component of privacy regulation, rights are often asked to do far more work than they are capable of doing. Rights can only give individuals a small amount of power. Ultimately, rights are at most capable of being a supporting actor, a small component of a much larger architecture. I advance three reasons why rights cannot serve as the bulwark of privacy protection. First, rights put too much onus on individuals when many privacy problems are systematic. Second, individuals lack the time and expertise to make difficult decisions about privacy, and rights cannot practically be exercised at scale with the number of organizations than process people’s data. Third, privacy cannot be protected by focusing solely on the atomistic individual. The personal data of many people is interrelated, and people’s decisions about their own data have implications for the privacy of other people.
The main goal of providing privacy rights aims to provide individuals with control over their personal data. However, effective privacy protection involves not just facilitating individual control, but also bringing the collection, processing, and transfer of personal data under control. Privacy rights are not designed to achieve the latter goal; and they fail at the former goal.
After discussing these overarching reasons why rights are insufficient for the oversized role they currently play in privacy regulation, I discuss the common privacy rights and why each falls short of providing significant privacy protection. For each right, I propose broader structural measures that can achieve its underlying goals in a more systematic, rigorous, and less haphazard way.