Disenchanting Consent

Despite being criticized as a flawed mechanism for data protection, con- sent has witnessed a revival in the recent wave of state privacy statutes. One factor that contributed to the revival may be the widely held belief that con- sent constitutes the “cornerstone” of data privacy laws. This Article conducts a comparative historical survey to examine the validity of this belief. The findings are twofold. First, contrary to what many believe, consent has been playing a limited role in global data privacy laws. Second, consent is an inherently defective mechanism for data protection. Some of its problems have existed since the inception of modern data privacy laws, and attempts to address them and safeguard consent will likely be doomed. These findings disenchant con- sent and signify the need to look beyond it. Reform efforts should focus on other areas of data privacy laws, a lesson with implications for states with new laws or bills that reinforce the role of consent.