Chapter 4 delves into two efforts to reinforce consent: opt-in and informed choice. It illustrates why, in the information economy, they also fail. Power asymmetries enable systemic manipulation in the design of digital products and services. Manipulation by design thwarts improved consent provisions, interfering with people’s decision-making. People’s choices regarding their privacy are determined by the designs of the systems with which they interact. European and American attempts to regulate manipulation by changing tracking from ‘opt-out’ to ‘opt-in’ and reinforcing information crash on the illusion of consent. Contract law doctrines that aim to reduce manipulation are unsuitable because they assume mutually beneficial agreements, and privacy policies are neither. Best efforts to strengthen meaningful consent and choice, even where policies are specifically intended to protect users, ultimately are insufficient because of the environment in which privacy “decisions” take place.

This chapter explains how corporate surveillance works on a technical level: how individual users can be tracked across their use of web and mobile services, for example through stateful tracking with cookies or stateless tracking with fingerprinting; how information collected through tracking is consolidated in comprehensive user profiles; how analytics services contribute to tracking and profiling; and how advertising technology works, including ad targeting and ad sales.

This chapter examines findings from transparency research that shed light on the methods used for corporate surveillance, including tracking, profiling, analytics, and advertising. The chapter focuses on key results obtained for the research questions described in chapter 4 and explains the experimental designs used to achieve them.