Schermer2014CrisisConsent

Bibliographic info

⇒ Schermer, B W., Custers, B., Van der Hof, S. (23 March 2014). 'The crisis of consent: how stronger legal protection may lead to weaker consent in data protection'. Ethics Inf Technol (2014) 16:171–182 DOI 10.1007/s10676-014-9343-8.

Commentary

⇒ In general, what about this text makes it particularly interesting or thought-provoking? What do you see as weaknesses?
The authors explore the crisis of consent in data protection legislation. They argue that the idea of autonomous authorisation model of consent is no longer effective in practice. They mean that sometimes the amount of information for consent is too much. Therefore, the legal rules need to change, to only asking for consent when it is really necessary. I think it is interesting how the authors address a theory that feels controversial. Being: the fact that stronger legal protection leads to weaker consent. You would expect that since the protection is stronger, citizens would think more about the issue and therefore more about consent. But it also feels logical that since there is more legal protection, citizens put more trust in the government and therefore give consent more easily, without thinking about it. This last attitude can be summarized by the term desensitization: the more we are being asked to share consent, the less we care about what we give consent for. Contextwise it is important to notice that the GDPR was established during the writing of this text.
Further, the authors give information about context-sentivity of consent, but a lot of questions are not answered. For example; When is a transaction fair? And, how far should the threshold for consent be lowered? When finished reading this text, I understand that something has to be done, but their conclusion still feels to be drawing on some assumptions that need further research.

Excerpts & Key Quotes

Moral Magic

"For consent to work its ‘moral magic’ it must be valid."

Comment:

The authors argue that a consent request must also fulfil a practical purpose. It must make individuals think about what they are giving consent for, and why. Becuase of the standard autonomous authorization model in which individuals are asked for consent too often, this practical purpose of a consent request is sometimes forgotten or lost. An example of moral magic is, for instance, according to the law it is not allowed to walk on someones private property. This would be considered trespassing. However, when there is an invitation or consent from the owner, this would change the position from the trespasser to a becoming a guest. The morality is vulnerable to change, because of the possibility of consent to be given. The authors state four points that need to be respected before consent can be given. Consent must be given by a subject with substantial understanding about the consent transaction. It must be given in substantial absence of coercion by others. It must be given intentionally and it must authorise a certain course of action. I agree with these four categories and I also believe that the argument about moral magic is a good way to show the relevance of this discussion.

"Implied consent has both a subjective and an objective element. The subjective element entails that the person asking for consent must believe that consent has been given (Bob sees that the door is open and assumes he may enter). The objective element is that society must agree that the behaviour displayed may lead the person asking for con- sent to reasonably believe that consent has been given (Bob cannot know that Alice wants to be alone while the door is open)."

Comment:

This is a simple example, but clear. However, a more complicated example is that if you drive a motor vehicle, this implies consent to take a field sobriety test. You choose to drive the motor vehicle and driving that vehicle is an act that gives that consent. But is it true that this act is related to the fact that you drive the motor vehicle? I believe that the authors highlight a valid argument and that in the case of online consent it can be difficult for individuals to recognize whether it is subjective or objective. Especially when they are asked to give consent all the time. Is it allowed to call someone everyday when that persons phonenumber is out in the open on LinkedIn or would you need consent to call that person everyday nonetheless?

"... we must establish what actions (or inactions) objectively signal consent."

Comment:

I want to address this citation, because I believe that there need to be laws about objective consent for online practices. Especially with example like 'cookies'. Everyone accepts them to enter a website, but what do you accept, what do we give consent for? Cookies can be evaded by a change in the browser settings. However, this is not common knowledge. Just like moral norms within cultures, the government should come up with norms for online platforms about when to ask consent, and how complicated may these topics be. Otherwise, it can even be manipulative to ask people consent for technical information/terms that one would not immediately can understand. This is an effect of the demoralizing of everyone knowing that online consent is a farce and people therefore giving consent anyways.