A feminist approach to consent in digital technologies by By Paz Peña and Joana Varon

Origi­nal post publis­hed in Medium

A femi­nist appro­ach to consent in digi­tal tech­no­lo­gies

by By Paz Peña and Joana Varon

It’s strange to think that two of the most impor­tant discus­si­ons today are around the same concept: consent. In one hand, the whole #MeToo move­ment has helped to resur­face in the public opinion an old and never over­come debate on sexual consent, and in the other, the poli­ti­cal scan­dal of Face­book–­Cam­bridge Analy­tica has demons­tra­ted (again) the futile exer­cise to consent on the use of our data in data­fied soci­e­ties domi­na­ted by a handle of trans­na­ti­o­nal data compa­nies.

Never­the­less, while these two discus­si­ons are happe­ning at the same time, bridges between them are almost none­xis­tent. More­o­ver, when we talk about our sexual prac­ti­ces medi­a­ted by plat­forms (sexting, dating apps, etc), the discus­sion on how these two types of consent collide and what comple­xi­ties come after that are almost always igno­red. For exam­ple, in the policy debate on NCII (non-consen­sual disse­mi­na­tion of inti­mate images), the lack of consent is either almost enti­rely seen as a sexual offense or as a mere problem of data protec­tion and privacy.

In order to shed a light on the matter, we are laun­ching today, the rese­arch “Consent to our Data Bodies: Lessons from femi­nist theo­ries to enforce data protec­tion”. The goal was to explore how femi­nists views and theo­ries on sexual consent can feed the data protec­tion debate in which consent — among futile “Agree” buttons — seems to live in a void of signi­fi­cant meaning. Envi­si­o­ned more as a criti­cal provo­ca­tion than a recipe, the study is an attempt to contri­bute to a debate on data protec­tion, which seems to return over and over again to a libe­ral and univer­sa­li­zing idea of consent. This frame­work has alre­ady proved to be key for abusive beha­vi­ors by diffe­rent power­ful players, ranging from big mono­po­lis­tic ICTs compa­nies, like Face­book, to Holly­wood cele­bri­ties and even reli­gi­ous leaders, such as the recent case of João de Deus, in Brazil.

On the other hand, femi­nist deba­tes made it is clear that the libe­ral appro­ach of indi­vi­du­als as auto­no­mous, free and rati­o­nal subjects is proble­ma­tic in many ways, espe­ci­ally in terms of meaning­ful consent: this formula does not consi­der histo­ri­cal and soci­o­lo­gi­cal struc­tu­res where consent is exer­ci­sed. In this sense, a very rich ques­tion to pose for the data protec­tion debate from a femi­nist pers­pec­tive is “who has the ability to say no?”

“In this context, Perez consi­ders somet­hing funda­men­tal:

“it’s not just about consent or not, but funda­men­tally the possi­bi­lity of doing so.”

Also in this regard, it seems inter­es­ting to recall what Sara Ahmed (2017) says about the inter­sec­ti­o­nal appro­ach towards an impos­si­bi­lity of saying “no”:

“The expe­ri­ence of being subor­di­nate — deemed lower or of a lower rank — could be unders­tood as being depri­ved of no. To be depri­ved of no is to be deter­mi­ned by anot­her’s will”.”

If consent is a func­tion of power, not all the players have the ability to nego­ti­ate nor to reject the condi­ti­ons impo­sed by the Terms of Servi­ces (ToS) in plat­forms. In this frame­work, beyond “Agree” to the usage of our perso­nal data, what most of people do is simply “Obey” the company’s will. There­fore, confron­ting the fantasy of digi­tal tech­no­lo­gies func­ti­o­ning as vehi­cles of empo­wer­ment and demo­cracy, what we have are data soci­e­ties where control is vali­da­ted by a legal contract and a bright button of agre­e­ment.

The libe­ral frame­work of consent in data protec­tion has been under scru­tiny by impor­tant privacy scho­lars. Helen Nissen­baum asks for quit­ting the idea of “true” consent and, at the end, stop thin­king on consent as a measure of privacy. She makes a call to drop out the simpli­fi­ca­tion of online privacy and adopt a more complex context. Julie E. Cohen has a very simi­lar appro­ach. For her, to unders­tand privacy simply as an indi­vi­dual right is a mistake:

“The ability to have, main­tain, and manage privacy depends heavily on the attri­bu­tes of one’s social, mate­rial, and infor­ma­ti­o­nal envi­ron­ment” (2012). In this way, privacy is not a thing or an abstract right, but an envi­ron­men­tal condi­tion that enables situ­a­ted subjects to navi­gate within pree­xis­ting cultu­ral and social matri­ces (Cohen, 2012, 2018).“

From a contex­tual inte­grity frame­work to condi­tion-cente­red frame­works, among others, the call of some of these scho­lars is to dismiss the libe­ral trap of “Notice and Consent” as a univer­sal legi­ti­ma­ting condi­tion for data protec­tion, and instead to protect privacy in the design of the plat­form rather than in the legal contracts.

Sadly, meanw­hile legal contracts are still a mecha­nism for social control, privacy and femi­nist acti­vists should be pushing for strong chan­ges in both ways: design and consent in ToS. In this sense, we have sket­ched a “matrix of quali­fi­ers of consent from body to data” in order to start thin­king crea­ti­vely and collec­ti­vely ways to ensure strong and contex­tu­ally meaning­ful data protec­tion stan­dards for all users.

The matrix shows that while some of the quali­fi­ers are over­lap­ping in the deba­tes of both fields, the list of consent quali­fi­ers present in data protec­tion deba­tes, such as in the Euro­pean Gene­ral Data Protec­tion Regu­la­tion (GDPR), taken as a model for many privacy aware juris­dic­ti­ons, falls short, discon­si­der some struc­tu­ral challen­ges and loosely compi­les all quali­fi­ers in one single action of clic­king in a button.

What would be tech­ni­cal and legal alter­na­ti­ves if we we are up to think and design tech­no­lo­gies that allow for tangi­ble expres­sion of all these quali­fi­ers listed by femi­nist deba­tes and, more impor­tant, consi­der that there are no univer­sal norms if there are diffe­rent condi­ti­ons and power dyna­mics among those who consent?

We hope that the some of the finding from this rese­arch (avai­la­ble bellow) are just the begin­ning of a long and exci­ting femi­nist jour­ney to collec­ti­vely build a femi­nist frame­work for consent on the Inter­net. #Femi­nis­tIn­ter­net

Full version of the rese­arch “Consent to our Data Bodies: Lessons from femi­nist theo­ries to enforce data protec­tion”, produ­ced by Coding Rights with support of Privacy Inter­na­ti­o­nal and funding from the Inter­na­ti­o­nal Deve­lop­ment Rese­arch Center is avai­la­ble here: https://codin­grights.org/docs/Consent­To­Our­Da­ta­Bo­dies.pdf

Refe­ren­ces for this blog­post (more refe­ren­ces of the whole study in the rese­arch link right above)

Ahmed, Sara. 2017. “No”. femi­nist­kill­joys. https://femi­nist­kill­joys.com/2017/06/30/no/

Baro­cas, S., and Nissen­baum, H. 2009. “On Notice: The Trou­ble with Notice and Consent”. Proce­e­dings of the Enga­ging Data Forum: The First Inter­na­ti­o­nal Forum on the Appli­ca­tion and Manage­ment of Perso­nal Elec­tro­nic Infor­ma­tion, Octo­ber 2009.

Baro­cas, S., and Nissen­baum, H. 2014. Big “Data’s End Run around Anony­mity and Consent”. In J. Lane, V. Stod­den, S. Bender, & H. Nissen­baum (Eds.), Privacy, Big Data, and the Public Good: Fr

Cohen, Julie E. 2012. “WHAT PRIVACY IS FOR”. DRAFT 11/20/2012. 126 HARV. L. REV. (forth­co­ming 2013)

Cohen, Julie E. 2019. “Turning Privacy Inside Out”. Forth­co­ming, Theo­re­ti­cal Inqui­ries in Law 20.1 (2019).

Nissen­baum, Helen. 2011. “A Contex­tual Appro­ach to Privacy Online”. Daeda­lus 140 (4), Fall 2011: 32–48.

Pérez, Yolin­liztli. 2016. “Consen­ti­mi­ento sexual: un análi­sis con pers­pec­tiva de género”. Univer­si­dad Naci­o­nal Autó­noma de México-Insti­tuto de Inves­ti­ga­ci­o­nes Soci­a­les. Revista Mexi­cana de Soci­o­lo­gía 78, núm. 4: 741–767.