March 2009, Volume 95, Issue 1
Consumerism and Information Privacy: How Upton Sinclair Might Once Again Protect Us From Ourselves (And Why We Should Let Him)
by Benjamin Sachs
95 Va. L. Rev. 205 (2009)
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This Note will address the salience of a simple analogy: will privacy law be for the information age what consumer protection law was for the industrial age? At the height of industrialization, the market faced instability caused by a lack of consumer competence, lack of disclosure about product defects, and advancements in technology that exacerbated the market’s flaws. As this Note will show, these same causes of market failure are stirring in today’s economy as well. The modern economy is not one of goods but of information, and although consumers have long been aware that their personal information may have marketing value, the internet has fundamentally changed the scope and depth of information collection, exposing more consumers than ever to injuries that require not just a more comprehensive remedy, but a wholesale change in the level of care for the information industry. Just as the mass-production economy precipitated a wave of reforms in consumer protection, in part thanks to a kick-start by author Upton Sinclair, so too must the mass-information economy adapt. After demonstrating the parallels between the problems of today with those of yesterday, this Note will propose parallel solutions, particularly a consolidation of regulatory power and a new tort for breach of information privacy, the latter of which draws its inspiration from general products liability. These proposals show that rather than reinvent the wheel, modern lawmakers can (and should) answer today’s problems with lessons from the last century.
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