Gut feeling

In spite of our previous post about the NHS, this blog is concerned primarily with data in general, and the impact of technology on personal information in particular.

So, at the risk of appearing to stray off topic, we’ll start today with Gordon Brown’s plan to liberalise the UK’s rules on organ donation. The prime minister wants everyone in the UK to be automatically included in the organ donor register under a system of “presumed consent”. Anyone who objects to having their kidneys re-used after their death would have to opt out of the system.

The thorny issue of organ donation provokes visceral (sorry) reactions in most, if not all, of the population: some see it as inherently selfish not to let others use your lights after you’re dead; others see it as yet another example of the creeping nanny state robbing citizens of jurisdiction over their own bodies.

There are, of course, powerful arguments both for and against presumed consent, and it’s beyond the remit of this blog either to defend or denounce Gordon’s plan.

But the principle of consent, and specifically the opt-in / opt-out debate, sits at the very heart of the continuing debate about the protection of our personal data, especially on the web.

Should services that use our personal data be opt-in or opt-out? Most people would instantly and decisively declare that any Internet service which collects, processes, uses or stores our personal data should naturally be opt-in.

We strongly disagree.

Regular readers will know that this blog tries to champion people’s right to privacy, whether online of offline, so there might be some who are surprised that we feel so strongly against the opt-in model. After all, shouldn’t we have to give our express permission, based on thorough information, before allowing others access to our private lives?

Ah, but indeed; and therein lies the problem.

Every time we tick the checkbox accepting terms and conditions – be it for a website, a new online service, or to set up an email account – we are giving our consent to everything in the small print.

When was the last time you read through a website’s Ts&Cs? In fact, have you ever done so? Do you know what you consented to when you signed up to watch YouTube or set up a Google Mail account? No, but you checked the box without thinking, just because you were impatient to get on with it.

And that’s where the danger of opt-in lies. Irresponsible sites – unlike YouTube and Google Mail – can use the opt-in mechanism to obtain people’s explicit consent for any number of nefarious activities by slipping new services into their terms and conditions, knowing that the vast majority of people will blithely tick the box without reading them.

Much better, then, to obtained people’s informed consent before they sign up – let them know exactly what they’re consenting to by having an unavoidable notice, explaining any changes to service, on the log-in page.

No reasonable person can argue that it should be easy as possible for people to see what they’re signing up to; yet most campaigners on this issue seem still to be in thrall to the sanctity of opt-in, which makes it so easy for people to bury nasty surprises in the Ts&Cs.

This visibility, this informing of stakeholders, is what’s lacking from the prime minister’s plans for presumed consent. While presumed consent is fair to the educated, literate and informed, it ignores the much greater majority of people who are not au courant and thus are in no position to give informed consent to organ donation.