16th Annual BCLT Privacy Lecture: Murky Consent



  • Available Until 3/12/2025
  • Class Time 1:00 PM PT
  • Duration 60 min.
  • Format On-Demand
  • Program Code BCLT0001
  • CA General CLE Credits: 1.00 hr(s)

Enroll Free for CLE


Recorded on Friday, September 22, 2023

Audio Only

Daniel J. Solove is the Eugene L. and Barbara A. Bernard Professor of Intellectual Property and Technology Law at the George Washington University Law School. One of the world’s leading experts in privacy law, Solove is the author of 10 books and more than 50 articles. He is also the founder TeachPrivacy, a company providing privacy and data security training. 


Heidi Hurd once said that consent works “moral magic” – it confers morality, legality, and legitimacy to things that would otherwise not be without consent. Consent plays an enormously powerful role in privacy. With consent, entities can do nearly anything with people’s data. But consent in privacy is beyond broken; it is a complete fiction. Opt out consent in the US is a farce. But opt in consent in the EU is also doomed – people just click “accept” buttons without understanding what they are consenting to. Privacy issues are too complex for people to understand sufficiently, dependent on things people can’t find out, and impossible to scale. Most approaches to privacy consent try to fix it, to turn fiction into fact. In this lecture, Professor Solove proposes a radical new approach. He argues that attempts to fix privacy consent are futile. Instead, privacy law should lean into the fact that privacy consent is a fiction – it should recognize that privacy consent is murky at best. Professor Solove will discuss how what he calls “murky consent” will help resolve the intractable problems with privacy consent. For more background, you can read the paper draft here.

Ari Ezra Waldman, Professor, UC Irvine School of Law
Ella Corren, JSD student, UC Berkeley School of Law

Paul Schwartz, Professor, UC Berkeley School of Law