On-Line Consent to the Disclosure of Personal Data

AUTHOR

Michael McChrystal and Alison Barnes (US)

ABSTRACT

The principle of consent has driven much of the debate about how to reconcile the significant efficiencies permitted by electronic transmittal of personal data and the important dignitary interests that are threatened by electronic data transfers. The subject’s consent to data disclosure presumptively resolves any concerns about protecting the dignity and autonomy of the individual. The most influential public policy statements governing the transmittal and use of personal data all emphasize consent as a key element in protecting human rights. (Examples: OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, European Union Directive on Personal Data, United States Privacy Act of 1974.)

We contend that the reliance on consent as the primary safeguard of dignity and autonomy often is overstated. Entities that seek (or perhaps insist on) transfers of personal data usually represent that consent is like a toggle switch – it is either on or off, given or withheld. From a legal and ethical perspective, this seriously oversimplifies the issues involved. For consent to enhance the dignity interests of the individual and contribute to personal autonomy, it must be informed and voluntary. Both of these requirements may impose significant transaction costs. In addition, consent also should be subject to limitations. For example, an individual should be able to condition consent by authorizing the release of only a portion of the data, by restricting the transfer of data to one purpose only, or by imposing the condition that the source or subject of the data is kept confidential. Information practices rarely implement this more complex understanding of consent to disclose personal data.

Thus, while the principle of consent is legally and rhetorically highlighted, the simplified version of consent that predominates information practices often fails to deliver the dignitary objectives it purports to achieve. We begin, then, with a look at what an idealized regime of consent looks like. This will include a discussion of particular web sites and the mechanisms of consent they use. One purpose of this paper is to outline the features of a strong process for granting or withholding consent.

A second objective of the paper follows from the recognition that some online transactions cannot (or will not) include procedures for the strong form of consent to data disclosure. This may be due to transaction costs, public policy decisions, or market phenomena. Even in these cases, however, important dignitary benefits can be achieved if care is taken in designing the process through which the consent occurs. Thus, a second purpose of this paper is to discuss these imperfect-consent cases.

Even when it is flawed, the process of obtaining consent can serve important functions if it orders interpersonal relationships and affirms societal values that promote responsible and conscientious action on the part of the persons involved. Such a process is properly termed a ritual, i.e., a prescribed sequence of actions and words intended to invoke powerful emotional and social forces. Rituals consist of acts, and often also words, that convey meaning in addition to any specific information exchanged. The procedure for obtaining consent may be valuable if its ritual content contributes to the integrity of the relationships involved, and this is true even if the consent is uninformed or otherwise flawed.

The law utilizes rituals extensively, reflecting the common understandings of society about the importance of certain transactions. Contemporary illustrations include the oath preceding sworn testimony, the use of notaries and seals, and the formalities required to execute a will.

The procedure for obtaining consent to disclose personal data, we contend, can include a number of important features that enhance its ritual nature. The potential benefits of ritualistic consent procedures are significant. The need to obtain consent speaks to the importance of the data and the importance of the transaction. If formal consent is required for disclosure, then the data itself must be both important and confidential. Thus, the ritual of consent affirms the autonomy and dignity of the individual. The ritual centers on a decision and act by the data subject. Moreover, holding the data confidentially must be an important responsibility, and so the stature and trustworthiness of the service provider is recognized.

In summary, this paper will discuss the legal nature of consent as a complex concept that enhances individual dignity and autonomy. We also propose to discuss the extent to which information practices comport with this more complex understanding of consent. Finally, we propose to develop the theme that even when information practices fall short of the ideal, they may serve important dignitary objectives if they are structured as rituals that reaffirm the human rights of data subjects.

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