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Designing for Consent Articles 162 EuCML · Issue 4/2018 Hoofnagle, Designing for Consent Articles Chris Jay Hoofnagle* Designing for Consent While the General Data Protection Regulation leans away Rather than rehash those debates, this paper focuses on from consent as a mechanism to justify the collection and the reality that consent is still a central approach in the use of personal data, consent remains a prime mechanism U. S. context. In fact, consent seems to be increasing in for protecting privacy and limiting marketing in the Uni- importance, as firms need to rely on some form of user ted States (U. S.). This article summarizes the difficulties authorization to embed tracking in highly-private spaces. businesses face in gaining high-quality consent and sets For instance, the rise of voice-assistant appliances (Apple’s out the different consent standards in U. S. statutory law. HomePod, Google Home and Amazon Alexa) means that In an exploratory effort, it then shows how companies consumers are putting internet-connected microphones in have designed consent experiences for particularly priv- their private homes – indeed even in their bedrooms. acy-invasive devices – home voice assistants and “smart” Similar surveillance capacity is now present in many televisions – through testing and documentation of their “smart” televisions. Part 2 of this article introduces the function. The article then explains the quality of consent idea of “quality of consent” in U. S. law. Part 3 then that U. S. law demands in different contexts, and eluci- explains how U. S. statutory law regulates in-home voice dates the limits of consent as a privacy tool in light of assistants and smart televisions with consent of varying the kinds of information-intensive devices that consumers quality. Part 4 presents an initial survey of how specific are adopting. This paper is part of an ongoing research device makers have implemented consent requirements in project looking into the privacy and security aspects of voice assistants and smart televisions. Finally, part 5 con- voice assistants. cludes. 1. Introduction * Chris Hoofnagle is adjunct full professor of information and of law at This article gives an overview of how “consent” remains an the University of California, Berkeley, e-mail [email protected] important mechanism to regulate uses of personal data and Paper prepared for the conference “Consumer Law in the Data Econo- control over marketing in the U. S. It also tests a group of my”, sponsored by the Centre for the Study of European Contract Law and the Journal of European Consumer and Market Law, April 13, popular products to show how product manufactures have 2018. designed for consent, that is, how clever dialogues have been 1 Edward J Janger & Paul M Schwartz, ‘The Gramm-Leach-Bliley Act, implemented to elicit consent from the user. Information Privacy, and the Limits of Default Rules’ (2001) 86 Minne- sota Law Review 1219. 2 Jeff Sovern, ‘Opting In, Opting Out, or No Options at All: The Fight for There are three main approaches to consent in the U. S.: opt- Control of Personal Information’ (1999) 74 Washington Law Review in and opt-out consent, and “no-opt.” In opt-in consent, the 1033. 3 Daniel J Solove, ‘Privacy Self-Management and the Consent Dilemma’ consumer must take some affirmative action, even a very (2013) 126 Harvard Law Review 1880. subtle one, to accept a collection or use of data. In opt-out, 4 Janger & Schwartz (n 1). the consumer must take action to object to data collection or 5 See, for the discussion of Google’s Safari tracking workaround, Chris 1 Jay Hoofnagle, ‘The Federal Trade Commission’s Inner Privacy Strug- use, thus placing the burden on the consumer to act. The gle’ in Evan Selinger, Jules Polonetsky & Omer Tene (eds), The Cam- third approach typically goes unmentioned: “no opt.”2 That bridge Handbook of Consumer Privacy (Cambridge University Press is, situations where the consumer has no ability to object to 2018) (“If firms are strategic, they will compete to both capture bene- fits and deny them to competitors. Through this lens, Google’s tracking information practices. of Safari users could be motivated by a desire to capture benefits from tracking, but also to deny Apple the ability to compete on privacy. Consent is a problematic tool to regulate privacy.3 An Denying Apple the competitive benefit could also affect the psychology of consumers, leading them to think no company can protect priv- extensive literature describes the problem space. Compa- acy.”). nies impose transaction costs to shape consumer choice,4 6 Douglas Edwards, I’m Feeling Lucky: The Confessions of Google use technology to deny benefits to those who take priv- Employee Number 59 (Houghton Mifflin Harcourt 2011) 341 (“We acy-preserving choices,5 and companies select defaults that would clearly want to set the default as ‘accept Google’s cookies.’ If 6 we fully explained what that meant to most users, however, they consumers do not want or expect. At the same time, would probably prefer not to accept our cookie. So our default opt-in consent is problematic because requiring it may setting would go against users’ wishes. Some people might call that violate the commercial free expression rights of compa- evil, and evil made Marissa [then Google executive Marissa Mayer] 7 uncomfortable. She was disturbed that our current cookie-setting nies, because obtaining consent is transactionally diffi- practices made the argument a reasonable one. She agreed that at cult, because consent needs a scaffold of other protections the very least we should have a page telling users how they could to address downstream uses of data, and because it may delete their cookies, whether set by Google or by some other web- site.”) be insufficient to protect consumers against sophisticated 7 Sorrell v IMS Health Inc. [2011] 564 US 552 (SCT). 8 businesses. As a result of fierce criticism, consent is 8 Lauren E Willis, ‘When Nudges Fail: Slippery Defaults’ (2013) 80 disfavored under the General Data Protection Regulation University of Chicago Law Review 1155. (GDPR).9 The GDPR’s architects burdened consent to 9 Regulation (EU) 2016/679 of the European Parliament and of the Coun- cil of 27 April 2016 on the protection of natural persons with regard to prevent companies from using take-it-or-leave it ap- the processing of personal data and on the free movement of such data proaches. [2016] OJ L 119/1 (General Data Protection Regulation). Hoofnagle, Designing for Consent Issue 4/2018 · EuCML 163 Articles 2. Quality of Consent in U. S. Law Table 1: Practical Problems in Achieving High-Quality Con- sent Internet utopians predicted a world of custom-tailored online contracts.10 In reality, the internet cemented the practice of Quality Tension Example standard-form, take-it-or-leave-it user agreements. Internet Who consents The “secondary” Alice and Bob have lawyers interpreted consent to mean that the consumer saw user problem a voice-assistant these form terms and clicked a resource with the mouse. In appliance, the fact, American lawyers devote significant attention to the Amazon Alexa in contours of “browsewrap” and “clickwrap” agreements. But their kitchen. They whether consent is manifested through visiting a website or invite Mallory over the millisecond action of clicking on a box, we know it is a for dinner, who contrived exercise. doesn’t know In such agreements, it is common for American lawyers to about the Alexa. describe choice rules without explaining their implications. Informed Services often do Privacy notices A timely example comes from the Facebook-Cambridge not know how tend to reserve a Analytica controversy, where Cambridge Analytica was they will use perso- broad set of future able to obtain the information of millions of people whose nal information, so data uses to ad- friends filled out a personality survey. As Facebook lawyer they cannot inform dress unforeseen Paul Grewal explained, “Approximately 270,000 people others utility derived from downloaded the [personality testing] app. In so doing, they personal data. [the downloaders] gave their consent for [the application Informed Services sometimes A website opera- developer] to access information such as the city they set do not know what tor could not on their profile, or content they had liked, as well as more their systems actu- have consented to limited information about friends who had their privacy ally do, so they collection of per- settings set to allow it.”11 Under this logic, the transaction cannot inform sonal information was consensual because users who did not download the others by a third party app assumed the risk that others might do so. To reject the advertising service risk, users had to understand the implications of privacy because the ser- policies and numerous settings, and then change those set- vice expressly tings. As Professor Daniel Solove has recognized in his claimed it did not treatment of consent, Facebook’s style of consent focuses collect such on an up-front, abstract statement of the rules instead of data.[1] warning the user of the downstream implications of those rules.12 Informed Services do not Google secretly want to tell users moved its email If we are serious about quality of consent, we would probe very clearly about scanning appliance the following factors in transactions: data practices from monitoring • Who can consent? delivered emails to reading messages • How informed is the consent? before they were delivered, thus • How serious is the right or privilege involved? converting it into a • What was the voluntariness of the consent? wiretap.[2] Seriousness Seriousness de- If data are only • What is the scope of the consent? pends on down- used for service de- • What are the implications of consent? stream uses of data livery, versus building an adver- • What are the procedural safeguards in the consent experi- tising profile.
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