A regime of "notice and choice" largely governs U.S. Internet privacy law.' Companies, long encouraged by regulators, issue privacy policies for consumers to read and act upon. In theory, consumers read these notices and make decisions according to their overall preferences, including preferences about privacy, price, service offering, and other attributes. Privacy enforcement, in large part, addresses deceptions in these privacy policies rather than the fairness of their underlying terms.

In recent years, notice and choice has come under growing and sustained criticism, including criticism from regulators and businesses, in light of evidence that it may be ineffective. Yet it remains the central feature of U.S. privacy law.

This Article contributes to the ongoing debate about notice and choice in two main ways. First, we consider the legacy of Professor Alan F. Westin, whose survey work greatly influenced the development of the notice-and-choice regime, and engage in sustained textual analysis, empirical testing, and critique of that work. Second, we report on original survey research exploring Americans' knowledge, preferences, and attitudes about a wide variety of data practices in online and mobile markets. This work both calls into question long-standing assumptions used by Westin and lends new insight into consumers' privacy knowledge and preferences.




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