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Informed Consent as Waiver

Having dismissed a theory based on autonomy for informed consent in information technology, it is important to establish the value of using the Manson and O'Neill waiver-based approach. Currently, as we have seen, there are few to no informed consent policies within the industry, and those which exist are based mainly on an ``effective consent'' basic competence and disclosure policy. This sort of policy theoretically empowers the user to make a rationally autonomous decision, but in practice, an individually autonomous decision is usually made. This has allowed implicit consent to creep in to the picture, and often these procedures do not carry out basic competence checks for minors or other entities for whom autonomous decisions could be an issue. A number of the problems I have identified in Chapter 2 with control of technology and privacy in information technology could certainly be improved, if not solved, by a waiver-based approach to informed consent.

What also makes a waiver-based approach particularly attractive is that it is easily translatable into terms that computer hardware and software developers are familiar with. Legal disclaimers and waivers are already common practice, and the general concept of disclosure as being important is evidently understood3.5, so establishing some best practice guidelines that empower software and hardware developers to construct reasonable informed consent procedures is something that can be readily achieved, and a vast improvement over ignoring the problem.

The problem of disclosure, such as that encountered with End User License Agreements and privacy policies, can be addressed more directly by the waiver-based approach in that the use of the theory of communication as a transaction can more easily restrict the types of language used in a disclosure, since successful communication requires that it, as mentioned above, be written in a language that is intelligible, easy to follow, and relevant to its audiences, ``rather than overwhelming them with a flood of irrelevant or distracting - even if intelligible - information'' (Manson & O'Neill, 2007, p. 85). Also, both parties should know some background about each other - software employing an EULA should know the target market for their program and adjust the language accordingly3.6. However, this isn't all that a successful communication transaction requires: in addition, the communication must not be dishonest, and needs to be accurate for the purpose. A software company should state up front if they are including advertising software as a third party install, and describe, as accurately as possible, what sorts of advertisements it will serve. This theory requires successful communicators to be epistemically responsible in the truth-claims they make to adhere to the regulative norms of truth and truthfulness in order not to undermine the communication transaction and thus undermine the informed consent procedure. In this way, an EULA or privacy policy should not obscure the details of included third party applications, what is done with personal information, etc., and the ``numbness'' from information overload can be avoided through not requiring a full disclosure saturation of information that the autonomy-focussed theory demands, rather, just accurate, relevant information for communicating truth-claims.

This approach also, importantly, avoids allowing those who deliberately mislead in order to gain consent (such as in the questionable practice of including implicit consent to the installation and EULAs of third party applications deep within an EULA) to get away with such behaviour by making them just as epistemically responsible for the appropriate and accurate transaction of information as the user who installs the application is for accepting and agreeing to the request. It is too easy under the current system for these parties to state that they adhered to the requirements of full disclosure, while failing to mention that in fully disclosing, the important information was buried so deeply within the agreement so as to be virtually drowned out by useless or inappropriate information. Currently the responsibility for understanding and isolating the relevant pieces of information is entirely that of the user, as, arguably, the consent-requester can avoid accountability by pointing to their disclosure of the information which theoretically empowered the user to make an autonomous decision. The waiver-based approach firmly states that this is not acceptable, because the required standard of communication dismisses full disclosure as an appropriate way to inform the user. If full disclosure is used as a defence but there is inadequate or unreliable communication (such as that brought about by the ``flood of irrelevant or distracting [...] information''(Manson & O'Neill, 2007, p. 85)), the informed consent procedure has failed, and the consent given by the user was not informed. Theoretically the currently used theory of informed consent could be improved by making the standards for communication more rigorous, but in the application of Manson and O'Neill's theory it is a lot harder for developers and vendors to get away with poor informed consent procedures because the framework develops the communication channels in a way that firmly places the responsibility for failed informed consent transactions (due to communication transaction failure) on the consent-requesters.

Having rejected the autonomy-based traditional approach to informed consent, and instead taken on the waiver-based approach, in order to establish informed consent as a waiver of normative expectations for information technology, it is important that we incorporate the issues specific to the area, as identified in chapter 2. This requires developing the theory with particular emphasis on the following topics:

  1. How to identify normative expectations that would be applicable in IT situations;
  2. How to set up an effective communication framework for the consent transaction;
  3. How to deal with the manipulation in the industry; and
  4. How to deal with ``numbness'' of information overload when needing to deal with many consent requests in a short period of time.

next up previous contents
Next: Identification of Normative Expectations Up: A Theory of Informed Previous: Justification   Contents
Catherine Flick 2010-02-03