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Sunday, September 27 • 10:05am - 10:37am
Crowdsourcing Privacy Policy Interpretation

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Contract disputes frequently call on courts to resolve conflicts arising out of interpretative differences. In these disputes, the party at the bad end of a deal typically contends that the parties meant their contract to have a meaning other than the one that led to the unfavorable result. To this end, the complaining party argues that particular terms are ambiguous, and that the ambiguity should be resolved in a way that yields a more favorable outcome. Whether a contract’s terms are ambiguous is a determination for the court to make. But a battle wages over the appropriate method for making this determination. While some courts confine their analysis to the contract’s four corners (that is, a term will be deemed ambiguous if its meaning cannot be gleaned from the document itself), others consider evidence extrinsic to the document to determine whether terms are reasonably susceptible to more than one meaning. Under either approach, if the court determines that terms are ambiguous, it will resolve ambiguity according to an objective reasonable person standard. But subjective elements influence decision makers in even the most earnest endeavors to decide objectively. This paper proposes the novel concept that crowdsourcing can aid courts both in determining whether contract ambiguity exists and in resolving ambiguities objectively. Courts that accept extrinsic evidence as part of their ambiguity analysis could look to how the crowd interprets the agreement: if crowd workers cannot agree on a particular term’s meaning, the court may accept this as evidence that the term is ambiguous. Similarly, crowd agreement on a particular term’s meaning can supply the court with a reasonably objective interpretation of that term. The paper explores this concept through the lens of empirical data from a recent study, Disagreeable Privacy Policies: Mismatches between Meaning and Users’ Understanding. That study asked crowd workers to interpret certain website privacy policies and compared the crowd’s interpretations to privacy policy experts’ interpretations of the same policies. This paper relies on data from that study to exemplify how the concept might apply. To reach this analysis, the paper first surveys the general landscape of online contracting. Because the data relied upon in the paper derives from website privacy policies, the paper specifically examines the extent to which those policies can be enforced as legally binding contracts. A finding that privacy policies are rarely enforced as such highlights a flaw in the notice and choice privacy regime that calls its legitimacy into question. Nevertheless, the paper suggests, the concept may be useful to privacy regulators despite a regime in which contract rules do not necessarily apply. The author does not wish to have the proposal considered for presentation in the poster session.

Moderators
avatar for Michael R. Nelson

Michael R. Nelson

Public Policy, CloudFlare
The future of the Internet and the Cloud, Internet Governance, cybersecurity, online surveillance, and online privacy

Presenters

Sunday September 27, 2015 10:05am - 10:37am
GMUSL - Room 225

Attendees (7)