PositionP. 143-177

Part 2 of 2

Black's Law Dictionary (882) calls an "illegal contract" one whose formation or performance is expressly forbidden by statute or where a penalty is imposed for doing the act agreed upon; "unlawful" would involve acts not positively forbidden but disapproved by law and not recognized because they are against public policy (883) Black's Law Dictionary defines "unenforceable contract" as meaning that the contract has no legal effect or force in a court action; a "void contract" as one having no legal force or binding effect. (884) California case law and the Civil Code use both "void" and "unenforceable."

The California Civil Code contains provisions concerning both contracts that are unenforceable and contracts that are void. For example, California Civil Code [section] 1670.5, specifies that a court will not "enforce" an unconscionable contract. California Civil Code [section] 1598 states that contracts in which the object is unlawful, impossible, or unascertainable are "void," and [section] 1916-2 states that a usury contract is "void." The word "void" in the cases and Civil Code refers to "void" in the strict sense, and does not include the sense of "voidable" (meaning that a defect in the contract can be cured to make it effective). (885) It is not clear whether the term "void" refers to a time period beginning with the inception of the contract or a later time, but it seems logical for it to refer to the inception unless the context requires a different meaning.

As noted above, California Civil Code [section] 1667 defines "unlawful" contracts and [section] 1599 states that "that part of a contract which is unlawful is void." Although the cases noted previously often refer to contracts that are contrary to good morals, unconscionable, or against public policy as being "unenforceable," the contracts are also void under [section] 1599.

The concept of voidness is important for its consequences when dealing with the Google and Facebook contracts. If the contract were found void, then the consent found in the Terms of Service of Google and Facebook would also be void. (886) The companies would then have no legal basis for gathering and monetizing personal information.

The California Civil Code has one provision on unjust enrichment that potentially could apply to the situation with Google and Facebook. CAL. CIV. CODE [section] 1589 (Consent by Acceptance of Benefits) states that: "[a] voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting."

Clearly, the users of Google and Facebook accept the benefit of the search or social media services and this acceptance could be interpreted as "consent" to their obligation to allow their persona data to be collected and monetized by the companies. A serious question arises however as to the extent the "the facts" are "known" to the users. Further, the collection and monetization of the personal information leading to the loss of autonomy could be seen as sufficient justification for finding the "transaction" immoral and against public policy. (887)

b. Statutory Violation or Common Law Tort?

Assuming that the consent in the Terms of Service was void or the transaction itself was void, the question would be whether the gathering and monetization of the personal information would constitute a civil or criminal statutory violation or a tort.

The applicable civil legislation would be privacy legislation. There is no federal general privacy statute. A number of federal statutes protect privacy in specific sectors, but they do not cover all commercial entities in their collection and use of personal information. (888) Currently, none of these statutes that protect certain areas of privacy have been used successfully to attack the business model of Google or Facebook for their use of personal data. California is reputed to have the strongest privacy statutes in the country, but these statutes still have limitations. (889) California's Consumer Privacy Act of 2018 that came into effect in January 2020 gives users of Google and Facebook more rights over personal data, but it does not specifically attack, or cover, their business model. (890) These statutes do not purport to give users a right to sue Google or Facebook for use of personal data collected from users. These statutes, therefore, would not help determine the possible liability of Google and Facebook for collection and use of the personal data.

The other statutory basis under which a claim might allege a violation would be "petty theft" under California's Penal Code. (891) Professor Lori Andrews, Director of the Institute for Science, Law and Technology at Illinois Institute of Technology, has described the practice of behavioral advertising as "theft." She explains that:

If someone broke into my home and copied my documents, he'd be guilty of trespass and invasion of privacy. If the cops wanted to wiretap my conversation, they'd need a warrant. But without our knowledge or consent, (892) virtually every entry we make on a social network or other website is surreptitiously being tracked and assessed. The information is just as sensitive. The harms are just as real. But the law is not as protective. (893) She then concludes that "[t]he guiding force behind this enormous theft of private information is behavioral advertising." (894) Her conclusion of "theft" has been explained in advance by her comment that "the law is not as protective." (895)

Professor Cass Sunstein, commenting on manipulation, has asserted that where the manipulator is focused on his own interests rather than on those of the chooser, "a self-interested manipulator can be said to be stealing from people--both limiting their agency and moving their resources in the preferred direction." (896) Given the manipulative nature of the contracts implementing the behavioral-advertising business model, the internet service contracts of Google and Facebook should meet this standard.

It does not appear that Facebook or Google has faced serious charges of theft. Professors Andrews and Sunstein have highlighted the moral deficit in behavioral advertising that would support an argument that the contracts of Google and Facebook are contrary to good morals, unconscionable, and against public policy.

The other possible liability would be under tort law. Current tort law has a restricted scope. Depriving a person of autonomy through the collection and aggregation of personal information does not yet qualify as a tort. Common law courts have, however, created new torts when the need arises. (897) The tort that is analogous is that of privacy and this tort is particularly salient for these purposes. First, the Restatement of Torts (Second) seems to invite lawyers and judges to find new torts to fit new circumstances. It lists the four typical privacy torts: unreasonable intrusion upon the seclusion of another; appropriation of the other's name or likeness; unreasonable publicity given to the other's private life; and publicity that unreasonably places the other in a false light before the public. (898) It then states:

Other forms may still appear, particularly since some courts and in particular, the Supreme Court of the United States, have spoken in very broad general terms of a somewhat undefined 'right of privacy' as a ground for various constitutional decisions involving indeterminate civil and personal rights. These and other references to the right of privacy, particularly as a protection against various types of governmental interference and the compilation of elaborate written or computerized dossiers, may give rise to the expansion of the four forms of tort liability for invasion of privacy listed in this Section or the establishment of new forms. Nothing in this Chapter is intended to exclude the possibility of future developments in the tort law of privacy. (899) Second, the history of the right of privacy demonstrates how courts can respond to changing circumstances and social mores. The current privacy law in the United States originated in a famous law review article written by Samuel D. Warren and Louis D. Brandeis in 1890. They opined that "[p]olitical, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society." (900) They saw the development of new rights as "inevitable," the newest being the right to privacy, or the "general right of the individual to be let alone." (901) Although the New York Court of Appeals rejected any such right a few years later, this narrow right of protection against the intrusive interests of both the press and its readers was enacted into law over the succeeding decades by many state legislatures. (902) Over the years, judicial interpretation expanded the scope of the right of privacy to include the right of a woman to make her own decisions about whether or not to terminate a pregnancy. In Roe v. Wade, Justice Blackmun writing for the United States Supreme Court in a 7-2 decision, found such a right of privacy in the Constitution, even though no general right of privacy was explicitly mentioned there. (903) This decision demonstrates that courts have been willing to accept the challenge posed in the Restatement and recognize new forms of the privacy tort when changes in society make it appropriate. (904)

To date, the judiciary has not recognized harm to autonomy as a tort. (905) Until the recognition of such a tort, the closest analogy is unauthorized disclosure of personal information. As lawyers Charlene Brownlee and Blaze D. Waleski have noted, occurrences of unauthorized access to and misuse of personal information have increased because of the prevalence of data aggregation and advanced technologies to automate the collection, access to the information, and use of this...

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