Published on May 07, 2021
The creation of legal grey areas, per three examples, using
the example of sexual consent for clarity and because that is
where the “consent” concept originated and is expanding from
in everyday life for digital consent.
I don’t think “sexual consent” exists other than as a legal
term. If I “consent”, it means “I voluntarily agree to engage
in a certain sexual activity”. Further, let’s assume I had both
the freedom and capacity to consent, then the question is
whether I agree to the activity by choice, not by coercion or
force. A grey area.
If the other person “did not reasonably believe” that I
consented and continued to engage in sexual behaviour despite
me saying “no”, he or she committed a sexual offence.
This makes rape victims the key element in the issues
surrounding consent and where common notions of victim-blaming
often come into play: “The clothing she wore was an
invitation”, “She was drunk”, “We live together”, and “We’ve
had sex before”, etc. As far as I know, wearing clothes,
having a drink, living together with someone, or having
mutually consenting sex, are not criminal activities.
Ofcourse there are those who want pleasurable and mutual
consensual sexuality to move away from the old “no means no”
mindset towards the concept of “affirmative consent”: “yes
means yes” because it promises more “pushing of will”.
Affirmative consent is not just about getting permission, but
about making sex based on mutual desire and enthusiasm. A
wonderful ideal to strive for. But re-inventing the wheel by
using “yes means yes” instead of “no means no” does not remove
the grey area.
With ‘yes means yes’ we imply that every person has the power
to say what they truly want when it comes to consent. This
ignores the reality that people
say ‘yes’ sometimes out of fear, and sometimes as a result
How about no forcing of will or coercion to push will on
Digital consent follows similar patterns.
(General Data Protection Regulation) is, in summary, a
series of protocols that creates rules for businesses in
Europe on how to process and maintain data collected from
European residents. At first glance, the GDPR champions the
rights of and consent of everyday internet users and targets a
supposed grey-area black hat tactics that have exploited
unsuspecting people browsing the internet.
But it wasn’t a grey area, it was a black area, and by
regulating the collection of data it actually legitimises the
processing and maintenance of data from European residents and
creates a grey area in which users can give consent or opt-in
or opt-out, and have to apply to have their data removed
and/or to be forgotten.
Hours after the GDPR came into force users were confronted
with consent-or-be-gone types of messages and large suits
against Facebook and Google appeared, accusing them of
“coercing” users into accepting their data collection
And as a “side note”, the legislation was purely for the
private sector in order to “protect the public”. What about
the public institutions funded by taxes from the people that
are protected under the GDPR? What impact does the GDPR have
on governing institutions? What do governments in Europe have
to do because of the GDPR?
Apparently nothing: “under EU law, the right to
privacy and the right to protection of personal data are two
distinct fundamental human rights.”
The European Parliament distances itself from national
authorities collecting and processing citizens private data by
allocating all such activities to the nation alone, The
Court of Justice of the EU does not have jurisdiction over
cases that involve surveillance conducted by national
authorities in order to safeguard the internal security of
the EU Members.
How about no collection of data, period.
Third-party cookies are gradually going extinct now that many
browsers block them, but that doesn’t mean Google (and similar
others) will respect our privacy. Google started an experiment
called FLoC (Federated Learning of Cohorts). It runs in
Google’s Chrome browser and tracks a user’s online behaviour.
Supposedly FLoC will allow personalized ads without the
collection of data that can be tied to specific people. By
assigning each browser an anonymised ID and then adding that
ID into a large group, a cohort, where only the overall
patterns are accessible to advertisers, the idea is that our
privacy will remain intact, while Google and its advertising
partners use it for widespread tracking and personalisation of
Marshall Vale, the product manager of Google’s privacy
sandbox: “Before a cohort becomes eligible, Chrome
analyzes it to see if the cohort is visiting pages with
sensitive topics, such as medical websites or websites with
political or religious content, at a high rate. If so,
Chrome ensures that the cohort isn’t used, without learning
which sensitive topics users were interested in.”
Sounds awesome, but what is really happening and possible in
this grey area?
A user’s browser, a tool to interact with the internet, is
supposed to be sacred. FLoC turns it into a real-time tracking
tool collecting the most sensitive information about an
individual user’s browsing habits without the user being able
to circumvent or opt out of this data collection.
And when the FLoC data set is big enough, deanonymisation
will become easy. For example, cohorts of users sharing
the same location data, shopping in the same neighbourhood,
being active in the same time zone, can
easily be grouped together by demographics, and if the
data is combined with other tracking mechanisms such as social
media analytics or data sets purchased from data
brokers, fingerprinting users based on age, class,
ethnicity, political parties becomes trivial.
announced that in Chrome version 89 they will forcibly
enable and trial their FLoC data-collection initiative without
the consent of users or webmasters.
Our options are reduced to “You either have old tracking or
new tracking”, but you are going to get it anyway?
Not entirely, because users
adminstrators and webmasters can jump through hoops,
It is annoying, very annoying, these constant attacks on our
privacy. How about no tracking, period.
And as a “side note”: Wouldn’t it be good if algorithms that
keep users engaged for maximising revenues by recommending
(political, sensasionalist, hateful, false) content, simply
did not exist?
Raw magic crackled from their spines, earthing itself harmlessly in the copper rails nailed to every shelf for
that very purpose. Faint traceries of blue fire crawled across the bookcases and there was a sound, a
papery whispering, such as might come from a colony of roosting starlings. In the silence of the night the
books talked to one another. A student