The Evolution of Consumer Privacy Law: How Privacy by Design Can Benefit from Insights in Commercial Law and Standardization

This article considers the effectiveness of the present privacy regimes in North America as it relates to the protection of consumer information that is gathered in the ordinary course of business. It is argued that the present moves towards a Privacy by Design approach shows great potential and can gain valuable insights from established doctrines in commercial and consumer protection law. Moreover, it is proposed that the aims of such an approach can be achieved by deeming personal information and behavioral data to be the property of the individual that it pertains to. It is then suggested that a regulatory framework be enacted whereby consumers could grant licenses to entities to use this information based upon predefined standard terms that would limit the scope and transferability of the information. It is argued that this will empower consumers and help to reduce the temptation for entities to act in a manner that hinders consumer expectations