Yet electronic contracting and the illusion of consent-by-clicking are a sham.
I was excited to see the editorial board of the New York Times publish “How Silicon Valley Puts the ‘Con’ in Consent” on February 2, 2019. They dispelled the illusion and asked the obvious question: “If no one reads the terms and conditions, how can they continue to be the legal backbone of the internet?” If only they’d provided answers.
I’ll give some below, but first, let me explain where the Times got sidetracked.
In diagnosing the “con,” the editors emphasize privacy. It’s all about the data. Contracts and the illusion of consent by clicking enable surveillance and complex, hidden and varied data flows. The editors argue for “strong privacy protections,” which makes good sense.
Privacy is a necessary thing to talk about, but it’s just a copse of trees. The forest is humanity. As Evan Selinger and I argue in our book Re-Engineering Humanity, especially the chapter titled “Engineering Humans with Contracts,” the more fundamental concern is how the click-to-contract human-computer interface nudges humans to behave automatically, without thinking, like simple machines. Much more is surrendered than hidden data flows. The click-to-contract script is dehumanizing.