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Abstract

Part I of the Article will first look at the original privacy norms that emerged at the Web's inception in the early 1990s. Two groups have been the main contributors to the emergence of these norms; the thousands of commercial websites on the early Web, on the one hand, and the millions of users of the early Web, on the other hand. The main structural feature of these norms was that websites benefitted through the largely unrestricted collection of personal data while consumers suffered injury due to the degradation of their personal privacy from this data collection. In other words, degradation of consumer privacy resulted as a third-party externality of free-market data-collection norms of the website industry. Broadly speaking, then, these injuries occurred in a tort context as the injurers and victims were not in a bargaining relationship with regard to the injurer's procurement of the victim's personal data. Next, Part I will examine the strategic structure of the relationships between websites and consumers that allowed these highly exploitative norms to flourish. Analysis will indicate that consumers faced a largescale collective action problem. There is a collective good that consumers potentially could have achieved, namely, the abatement of disrespectful data-collection practices by websites. Web users would have great difficulty in organizing to secure this collective good, however, due to their large numbers and lack of repeat play and overlapping relationships. Reacting to this sub-optimal but stable social situation, "norm entrepreneurs" entered the picture. Three main types of norm entrepreneurs have been involved: public-interest advocates, website industry advocates, and governmental actors, particularly the Federal Trade Commission ("FTC"). Part II will examine how new, more respectful website privacy norms recently have begun to emerge, due largely to the efforts of these norm entrepreneurs. The following study of the impact of norm entrepreneurs on website privacy norms will reveal a highly significant event. In the short history of the Internet, there has been a major shift-a "norm-cascade"- toward more respectful privacy norms. The transition has been from a wild-west world in which websites did almost whatever they wanted with impunity, to a world in which a significant percentage of websites are explicitly addressing privacy concerns. Part II models the norm cascade toward greater respect for online privacy in two stages.

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