collaborative consent

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COLLABORATIVE CONSENT Harnessing the strengths of the Internet for consent in the online environment

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Presentation from BILETA 2010

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Page 1: Collaborative Consent

COLLABORATIVE CONSENT

Harnessing the strengths of the Internet for consent in the online environment

Page 2: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

The symbiosis in the Web

Data gatherers and data subjects in mutual dependency

• Businesses reliant on gathering and using personal data

• Individuals dependent on ‘free’ services built on this data gathering

Page 3: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

Behavioural advertisingEpitomises these trends• Works by gathering and using

personal data• Tendency towards secrecy• ‘Sidestepping’ consent

Page 4: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

Collaborative ConsentTwo key aspects• Treats consent not as a discrete,

one-off decision, but as a process

• Looks at consent as a two-way process – a dialogue

Page 5: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

Phorm

An extreme level of behavioural targetting• Monitors ALL web-browsing• Works at the ISP level• Legally challenged in a number of ways

Page 6: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

Phorm and Consent

Many of the problems of Phorm could have been addressed by consent• Interception of communications (RIPA)• Data Protection• Fraud , defamation, passing off,

trademark infringement• consent needed from the websites!

Page 7: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

Phorm and Privacy

Phorm believed their ‘UID’ system meant that they were not covered by Data Protection

BUT: the public perception of privacy is different from the letter of the law, let alone the ‘arguable’ letter of the law

Page 8: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

The Fall of Phorm

Phorm failed for many reasons• Attacks from rights groups• Secret trials!• Perceived as ‘anti-privacy’• Abandoned by business allies• Challenges from Europe• Investigations from the OFT, apComms

Page 9: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

The Fall of Phorm

Another way to look at it• An imbalance in symbiosis• Phorm took, but didn’t give• Not the Google model• More like Facebook’s Beacon – which

suffered the same fate

Page 10: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

Lessons from Phorm

1 Keeping the balance is crucial2 You must keep the public on your

side• People don’t like being taken

advantage of• That means that, one way or another,

you need consent• That consent must be meaningful, and

understood, not just strictly legal

Page 11: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

‘Real’ vs ‘Legal’ consent

Consent is not just a legal issue…

…it is an issue of autonomy

Page 12: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

Consent on the internetCurrently mostly superficial• Unread terms and conditions• Scrolled-through, unread ‘clickwrap’• Browsed-through, unnoticed ‘browse-

wrap’• ‘One off’ consent – gained when you

first sign up• ‘Stretched’ consent from service to

service

Page 13: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

When might consent not be required?

• When it’s ‘reasonable’ to assume that consent would be granted – but what is ‘reasonable’?

• Obligations – legal or international• Where there is an overwhelming

societal need or benefit• Is there a ‘need’ for a profitable

internet business sector?

Page 14: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

Opt-in or Opt-out?

• Opt-out only when consent can generally be assumed

• Where there is any doubt, the rights of the individual should get the benefit of that doubt

• Behavioural trackers/advertisers generally use ‘opt-out’…..

Page 15: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

Informed consent

• Does it just mean that information has to be given, or

• Does it mean that an ‘informed decision’ needs to be enabled?

• Lessons from medical law – Harvey Teff’s ‘collaborative autonomy’.

Page 16: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

‘Collaborative consent’

• The internet lends itself to communication and collaboration• The internet is a communications

medium• The internet supplies information• The internet works continuously in

real time• Consent processes should take

advantage of all of this

Page 17: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

‘Collaborative consent’

• Contracts, T&C, EULAs in plain language

• Then, turn consent into a communicative collaboration• Data gatherers provide information• Alerts when data is gathered• Alerts when things change• All in real time, providing options to

change, revoke, pause, control

Page 18: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

When things are important

They can be pointed out!

Page 19: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

‘Collaborative consent’

• Some of this is happening• Google dashboard• Google Ads Preferences

• Current systems are hard to find, very much ‘opt-out’

Page 20: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

Consent through rights

The features of collaborative consent should be seen as rights:• Rights to be informed• Rights to be consulted• Rights to withdraw or revoke

consent• Rights to choose

Page 21: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

The power of consent

When a provider needs to get consent, they need to convince a user that they will benefit…

….so they need to ensure that there is a benefit to convince the user of, and will build business models accordingly

Page 22: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

A future for behavioural tracking?• As a method of ‘self profiling’?• For programming ‘intelligent agents’?

Perhaps no future – but if there is a future, it should be on the customers’ terms.

Page 23: Collaborative Consent

Collaborative Consent Paul BernalBILETA 2010

Consent in the future

• A difficult issue to grapple with – but one that must be engaged.

• Superficial consent is scarcely better than no consent at all

• Making consent a collaborative process could be a useful first step

Paul Bernal – [email protected]