
Contents
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A. Introduction A. Introduction
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B. Affective Features of the Challenge B. Affective Features of the Challenge
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1. Complexity and bounded rationality 1. Complexity and bounded rationality
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(a) Asymmetries and uncertainties (a) Asymmetries and uncertainties
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(b) Heuristics and biases (b) Heuristics and biases
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2. Subjective rights and objective choices 2. Subjective rights and objective choices
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(a) Understanding the challenge (a) Understanding the challenge
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(b) Varying objective standards (b) Varying objective standards
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C. Investigating the Features—Choice and E-AI C. Investigating the Features—Choice and E-AI
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1. Desensitizing data subjects 1. Desensitizing data subjects
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(a) Defaulting to consent (a) Defaulting to consent
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(b) Take-it-or-leave-it or object (b) Take-it-or-leave-it or object
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2. Objectified collective benefits 2. Objectified collective benefits
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D. Limits of the Challenge D. Limits of the Challenge
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E. Conclusion E. Conclusion
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4 The Challenge to Individual Choice
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Published:April 2024
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Abstract
^Data subjects are presented with choices through mechanisms such as consent and the operation of the data subject rights provided for in data protection law. An important challenge however, is that although data protection law provides subjective control rights so that we can make our own choices, it assumes data subjects’ objective rational capacity to make them and fails to account for how people actually make decisions in reality. The purpose of this chapter, therefore, is to explore the role of choice in data protection law through a law and emotion theory lens. To demonstrate the role of choice and the potential impact of the insights from this scholarship, the analysis explores the development of Emotional Artificial Intelligence as a case study through the lens of the EU’s General Data Protection Regulation.
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