Consent is fiction.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4333743
Murky Consent: An Approach to the Fictions of Consent in Privacy Law
Consent plays a profound role in nearly all privacy laws. As Professor Heidi Hurd aptly said, consent works “moral magic” – it transforms things that would be illegal and immoral into lawful and legitimate activities. As to privacy, consent authorizes and legitimizes a wide range of data collection and processing.
There are generally two approaches to consent in privacy law. In the United States, the notice-and-choice approach predominates; organizations post a notice of their privacy practices and people are deemed to consent if they continue to do business with the organization or fail to opt out. In the European Union, the General Data Protection Regulation (GDPR) uses the express consent approach, where people must voluntarily and affirmatively consent.
Both approaches fail. The evidence of actual consent is non-existent under the notice-and-choice approach. Individuals are often pressured or manipulated, undermining the validity of their consent. The express consent approach also suffers from these problems – people are ill-equipped to decide about their privacy, and even experts cannot fully understand what algorithms will do with personal data. Express consent also is highly impractical; it inundates individuals with consent requests from thousands of organizations. Express consent cannot scale.
In this Article, I contend that most of the time, privacy consent is fictitious. Privacy law should take a new approach to consent that I call “murky consent.” Traditionally, consent has been binary – an on/off switch – but murky consent exists in the shadowy middle ground between full consent and no consent. Murky consent embraces the fact that consent in privacy is largely a set of fictions and is at best highly dubious.
Because it conceptualizes consent as mostly fictional, murky consent recognizes its lack of legitimacy. To return to Hurd’s analogy, murky consent is consent without magic. Rather than provide extensive legitimacy and power, murky consent should authorize only a very restricted and weak license to use data. Murky consent should be subject to extensive regulatory oversight with an ever-present risk that it could be deemed invalid. Murky consent should rest on shaky ground. Because the law pretends people are consenting, the law’s goal should be to ensure that what people are consenting to is good. Doing so promotes the integrity of the fictions of consent. I propose four duties to achieve this end: (1) duty to obtain consent appropriately; (2) duty to avoid thwarting reasonable expectations; (3) duty of loyalty; and (4) duty to avoid unreasonable risk. The law can’t make the tale of privacy consent less fictional, but with these duties, the law can ensure the story ends well.
Tools & Techniques. (Talking gooder to your AI)
7 AI Prompting Tips and Tricks That Actually Work
… A whole new world of prompt engineering is springing into life, all dedicated to crafting and perfecting the art of AI prompting. But you can skip the tricky bits and improve your AI prompting game with these tips and tricks.
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Axon releases Draft One, AI-powered report-writing software
Axon has announced the release of Draft One, a new software product that drafts police report narratives in seconds based on auto-transcribed body-worn camera audio, according to a press release.
Reporting is a critical component of good police work, however, it has become a significant part of the job. Axon found that every week officers in the U.S. can spend up to 40% of their time — or 15 hours per week — on what is essentially data entry.
Tools & Techniques.
Exclusive: Launching Today Is The First Meeting Bot Specifically for Legal Professionals, for Use In Depositions, Hearings, and More
You may have noticed of late that many of your video meetings have an unfamiliar attendee — a meeting bot, invited by one of the human participants, that produces a recording or transcript when the meeting is over. But while there are several such products on the market, none have been developed to meet the specific needs of legal professionals.
That changes today with the beta launch of CoCounsel.ai, the first legally nuanced meeting bot. It can join a legal event such as a deposition, hearing or arbitration, and it uses legal-specific AI speech-to-text to provide a legally formatted, highly accurate real-time transcript, along with features such as bookmarking, tagging and archiving.
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