On the Ethics of “Consent”

TL;DR: Consent matters when it comes to cookies that could expose sensitive personal attributes (health, income, age, sexuality, religion, ethnicity), even if you don’t mean to collect them. Collecting these things could put the subject at a small but appreciable risk. The only person is a position to decide whether a personal attribute is sensitive is the subject (and even they may have trouble). Getting consent is different to getting someone to click the “I consent” button. People are irrational, don’t pay attention and are goal-focussed – It’s not OK to exploit that in order to get a meaningless but legally-acceptable “consent” signal.

Hand-Waving in the general direction of consent

Consent is one of those ideas that seems to permeate through every level of society. At a macroscopic level we talk of citizens being governed and policed by consent, and at a smaller scale consent underlies the relationships between individuals. It is only rarely that someone can be compelled to do something without their consent at some level – Whether that’s macroscopic consent derived from their participation in a democratic society or case-by-case consent formed through contract or interpersonal agreement.

What underpins the idea of consent, is that the entity giving consent (whether an individual or a group, and sometimes both) has a meaningful choice to make: Do I or do I not want to enter in a particular set of rules or conditions?

Consent and Cookies

So, what does consent have to do with cookies? An advertising network that tracks my visits over multiple sites isn’t compelling me to do anything, but it is taking decisions, the right to digital self-determination, away from me. As I’ll come on to later, people deserve a choice when it comes to data about them, and when an advertising network starts covertly collecting data that choice is taken away. Secondly, the EU 2009 e-privacy directive specifically requires that

“the storing of information, or the gaining of access to information already stored … is only allowed in the event that subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information … about the purposes of the processing.”

Consent vs “I Consent”

When piloting the study I’m working on at the moment, I spoke to several people about their experiences with cookies and asked most of them about the new “consent” dialogues that have sprung up on UK websites since May*. The overwhelming response seems to be that people have seen them, but don’t really pay attention to what they say or understand the decision that has to be made. That’s not surprising, people have been ignoring warnings about security certificates for years.

Here’s the difference between actually consenting to something and clicking on a consent button (or worse, “continuing to use this website indicates your consent”). The legal basis for determining whether a user has consented seems to be rooted in the same discredited notions that human beings are rational and self interested as Economics. More, it assumes that people will always read, understand and give proper thought to the information that they’re shown. We know that both these things are categorically not true. By relying on human psychology to trick users into “giving consent” whilst simultaneously pretending that such consent is in any way meaningful is ethically indefensible. What matters is not whether you can get a user to click a button (probably after having gone through a shallow heuristic evaluation rather than critical thought) but whether you can say with any certainty that users are actually happy for you to do what it is your doing; (and you can’t assume that they’d be happy if you haven’t actually told them).

If these techniques were proposed as “nudges” (and default options can be legitimate nudges) they would be rejected on the grounds that they’re not in the interest of the subject or even of broader society.

* May is when the Information Commissioner’s Office claimed that it would start enforcing the UK’s Electronic Communications Regulations, as amended.

Why “digital self-determination” matters

By “digital self-determination” I mean the right to control data about oneself – Even in situations where it would be hard (although not impossible) to link that data back to the individual it relates to. Every time data about a person is stored, there is an unknown increase in the risk of harm to the data subject. It’s not the job of Bing, DoubleClick or Facebook to make risk decisions on behalf of the data subjects – The data subject is the best placed to know which personal attributes are potentially sensitive given their personal circumstances.

Why does it matter if a company collects data about the web pages I’ve visited? There’s no answer to that question. Some people have no reason to care, but others may have several. Advertising companies know that the web pages people visit can tell you something about them – They exploit that knowledge to target adverts based on what they think you’re likely to buy. What somebody’s likely to buy is not the only thing you can infer. Consider the following examples:

A web user searches for advice about problems with their eyesight and tremors. In the UK those web searches wouldn’t be too sensitive – Our health care is free at the point of use. In countries where people rely on private health insurance that web search could be construed as evidence of a pre-existing medical condition and preclude the data subject from appropriate care if they were later diagnosed with Multiple Sclerosis.

You could make a reasonable inference as to the sexuality of somebody who routinely visits PinkNews.co.uk. For some people that’s not a problem, but for some people such a revelation could cause family or employment difficulties.

What about the social stigma around depression and suicide that might be invoked by disclosure of visits to the Samaritans website? Or the consequences of an abusive partner finding that their victim was seeking domestic violence support? An employer that found out you’d been uploading a CV to Monster?

Shouldn’t those sites just stop using third party services that could track their visitors? Probably. But that’s not enough – Newspapers carry stories about these topics and links to those websites. Bloggers that rely on free services don’t have a choice which third parties get to track their visitors.

“We use behavioral advertisers – People can accept it or leave”

Do people have a choice of whether they take a risk with their personal information? Perhaps they do, but should people have to make a choice between risking personal data and using a website? That is surely a form of indirect discrimination.

So, what’s your point?

The current system of tracking, the paternalistic attitude that companies have to subject data and the technology that allows companies to do tracking with no consent from users is broken. Something has to give: Either data protection legislation needs to be strengthened (or just enforced – Yes, ICO, looking at you), companies that make money from surreptitiously stealing people’s data need to start behaving more responsibly or the technology needs to be tweaked to give web users a break.

Introductory Thoughts on Cookies

What’s this all about?

During my internship at MSRC, I’ve been focussing on how we can visualise cookies to help people better understand what they’re doing and how they work. But there are other issues tied into this: Privacy (and what it means for that to be undermined, and who has the ability to determine whether an action undermines an individual’s privacy), Technical Issues (how can we help guard against “abusive” tracking cookies and cookies that really are needed, without breaking things?) Legal issues (particularly around data protection, EU privacy directive and what informed consent is) and even some Economics (how do cookies support content-providers via ad networks, and how do you balance that against user privacy or make content worth the privacy risk).

I think there are a few issues that keep coming up, no matter which way you approach cookies: The technical insolubility of preventing an ID from being used for several purposes, knowing what an ID is being used for, balancing the needs of websites to track users internally to optimise content versus users’ right not to have their browsing history across multiple sites snaffled by advertising networks.

Why selectively blocking tracking cookies might backfire

I’d be interested to see whether one could differentiate between “types” of cookie with accuracy good enough for general use – There’s no technical distinction, so I think it would be far from easy. The P3P approach, in which cookies are delivered with a machine-readable privacy policy, seems like it might address some of the problems with categorising cookies, but (from experience of trying to implement P3P policies for websites) it’s pretty complicated and feels out of place alongside the simplicity of HTTP itself.

But if we could tell “this is a cookie that keeps you logged in” and “this cookie is just for targeted advertising”, would that help?

Sites that set multiple cookies generally seem to do so out of convenience (easier for eg product teams to have their own cookie) – A single cookie would probably suffice technically for the overwhelming majority of sites that currently use multiple cookies – There may be a downside to widespread categorisation of cookies as “authentication” and “tracking”, in that sites start consolidating into fewer multiple-purpose cookies that are harder for users to control individually and removing any shred of transparency that currently exists. I suspect also, that rather than reduce the lifespan of that single cookie to reflect the often limited lifetime of the current cookies, companies would just give the single cookie the lifetime of the longest-lived cookie at the moment, which undermines privacy further.

Knowing what cookies are for: A policy problem?

There could be a policy response that insisted on a certain level of atomicity in cookie use (not using a single identifier for technically-necessary identification like authentication and non-essential uses like tracking). Implementing that seems like it would either a) have a lot of side-effects for eg companies (like Facebook) that operate advertising only within an authenticated environment (differentiating the ID of the user and the advertising recipient makes little sense) or b) have a lot of loopholes to accommodate them.

Which cookies do I even want to control?

Contexts seem to play a role in the idea of privacy – I don’t care so much that the Guardian knows which stories I’ve read, but I do care that an advertising network knows which stories I read on the Guardian and which stories I read on the Telegraph and which product I looked at on Amazon – A third-party that doesn’t respect the “natural contexts” in my browsing is more troubling to me.

Applying contexts to the Cookie Jar

I think contexts could be implemented in the web browser. Sites could, by default, operate in a “sandbox” – A cookie for Facebook set in a first-party scenario (I’m on a Facebook URL at the time) can only be seen by Facebook. A DoubleClick cookie set in a third-party context while I’m on Guardian.co.uk can only be seen by DoubleClick when I’m on the Guardian – When I’m on the Telegraph, DoubleClick sets/sees a different DoubleClick cookie. This wouldn’t interfere with analytics on the site itself, and would still allow sites to track return visits without bothering the user for all the largely-innocent cookies.

HTTP cookies already have a couple of properties that can be specified at creation (to eg restrict them to HTTPS connections or prevent access from client-side scripts) – A new property could allow cookies to break the sandbox and become global, accompanied by a user confirmation, perhaps using a P3P-like policy to tell the user what the cookie is for, like you get when adding an App on Facebook.

“Facebook.com wants to a set a tracking ID on your browser. It will be used to:
– Keep you logged in to Facebook services provided on other websites
– Track your browsing activities for the purpose of behavioural advertising
Do you want to accept this tracking ID?”

Sandboxing the browser cache in a similar manner would help to prevent some of the other tracking mechanisms, like caching a unique image and then reading that back using a javascript canvas. I think that prevents large-scale tracking of a user’s browsing across many websites, but still allows cookies for legitimate cross-domain purposes (Like Facebook comments on blogs) to work. The policy response then just needs to deal with companies that misinform users about the purpose of the cookies that they’re requesting are un-sandboxed and possibly require that sites use separate global cookies for different purposes, so that the user gets some granularity in what they allow.

A social nudge?

There’s space for a social nudge here, I think. I sometimes feel like if I don’t accept eg an app’s permission request I’ll miss out (possibly coupled with a strong cultural influence to avoid saying no at all costs!) “3000 people have said no today” lets people feel like rejecting this cookie/request a) is socially acceptable and b) won’t disadvantage them, at least with regard to this big number of other people.

If DoubleClick wants to incentivise the user to accept a global tracking ID by giving them something in return, then great!