The Legal Roots and Moral Core of Digital Consent
Posted: 28 Feb 2018 Last revised: 20 Sep 2018
Date Written: February 27, 2018
Despite differences in the development of consent in data protection laws, consent has become central to international privacy disputes and transnational innovation. Yet the efficacy of consent in protecting individual privacy has been widely questioned. Most privacy scholarship on consent either discards the practice as unworkable or seeks to improve existing procedures.
In this article, we take a different approach. We revisit how legal frameworks for digital consent developed in order to understand the deeper motivations underlying these laws. Our aim is to see whether these systems are different interpretations of the same fundamental moral right or if there is a deeper disagreement about why consent should play a role in the protection of personal information.
What do we mean when we are discussing reimagining digital consent? For our purposes, we want to draw attention to two different uses of consent. First, consent is a moral concept. In the broadest sense, an individual’s consent involves an effective communication of an intentional transfer of rights and obligations between parties. Consent thereby transforms the moral landscape between two parties rendering permissible otherwise impermissible actions. Second, consent has become enshrined in the law. Consent can be legally binding, as long as the transaction has met certain legal requirements or institutional standards defining the scope of consent. The legal notion of consent is built on the moral notion; however, the two notions come apart when the threshold for legally binding consent is met without that consent capturing the relevant morally legitimate transference of rights and obligations.
Many privacy scholars have argued international data protection should be handled in a to-each-her-own or agree-to-disagree manor. This reflects the current policy landscape in which we see different legal cultures and justifications in different jurisdictions. However understandable it may be as a legal matter for there to be so much variability between jurisdictions, the question remains: how well do these various legal notions of consent meet moral standards?
We compare the different underpinnings to see where there may be common moral ground and where these different cultures diverge on the issue of protection of personal information. We seek to clarify the central interests and rights at stake in order to provide a common basis for evaluating the different legal frameworks. We will argue that clarifying the “moral core” of consent offers a common metric by which we can evaluate how well different legal frameworks are able to protect the central moral rights and interests at stake. Ultimately, we seek the moral core of digital consent in order to reimagine its role in international conflicts.
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