What Does True Consent Look Like for Consumers?

A man with a squeegee cleans your windshield while your car is stopped and then asks for money. Do you owe him anything? Most people would say no. Now you get your hair cut. Do you owe the barber anything? Just about everyone would say yes.

These two cases aren’t entirely different. In both cases a service was rendered without an express agreement between the parties. The difference is mostly a matter of custom. Society expects that when we sit down in a barber chair, we’re implicitly agreeing to exchange money for a shearing. There’s no such expectation about windshield cleaning, unless the place we stop happens to be a carwash.

What constitutes consent is an unsettled aspect of law, and there are big economic implications. The examples above are about implied consent. There are also debates about express consent, which seems like it would be cut and dried but actually isn’t.

There are several spheres of life where questions of consent are bubbling up. One is in medical care. I wrote last year about the recently settled lawsuit brought by the family of Henrietta Lacks, the woman whose “immortal” cells were used without her knowledge or consent in research that led to the development of treatments for diseases including cancer, Parkinson’s and the flu.

A second sphere is the capture and use of our personal data, which a lot of us expressly allow without even thinking much. A third is drunken driving: Many states have laws that say that getting a driver’s license constitutes an agreement to have your blood tested for alcohol content if a police officer suspects you’re inebriated. Defense lawyers, and many civil libertarians, argue that’s a violation of the Fourth Amendment, which protects against unreasonable searches and seizures by the government.

I’ll focus on the use of our personal data, since it’s a pervasive problem. To comply with privacy laws, websites won’t share your data without your express agreement. But who reads that fine print before clicking OK? Anybody?

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