How Concepcion Killed the Privacy Class Action

In its 2011 AT&T v. Concepcion opinion, 1 the Supreme Court may have given the web industry a lightweight but impenetrable shield against most privacy-based user claims.To understand why, one must understand the nature of the activity that gives rise to such claims, the contracts that govern such claims, and the legal industry that brings such claims.An ever-increasing portion of our daily lives and our daily commerce occurs over the Internet.We have no choice but to rely upon online service providers to facilitate that conduct, and those providers often fund operations through advertising.That advertising is increasingly sophisticated, targeted, and conducted by multiple third parties.Those third parties and first-party providers alike must know who we are and what we like to generate revenue from targeted advertising.A quilt of facts about ourselves and our context fuel such advertising, including our names, email addresses, locations, IP addresses, gender, browsing histories, social security numbers, hardware fingerprints, expressed preferences, sexual orientation, and consumer selections, to name a few.Online service providers use sophisticated technological mechanisms to gather and analyze this information, and this need not be a bad thing.Disclosure, too, can be utterly innocuous under many circumstances.Yet disclosure to the wrong parties under the wrong circumstances can embarrass us, result in identity theft, result in harassment, or unexpectedly destroy the reputations we've spent a lifetime building.† Jessica L. Hubley is an independent privacy advisor consulting clients on privacy compliance and privacy by design techniques for software and web products.