A man with a squeegee cleans your windshield while your car is stopped and then asks for money. Do you owe him anything? Most people would say no. Now you get your hair cut. Do you owe the barber anything? Just about everyone would say yes.
These two cases aren’t entirely different. In both cases a service was rendered without an express agreement between the parties. The difference is mostly a matter of custom. Society expects that when we sit down in a barber chair, we’re implicitly agreeing to exchange money for a shearing. There’s no such expectation about windshield cleaning, unless the place we stop happens to be a carwash.
What constitutes consent is an unsettled aspect of law, and there are big economic implications. The examples above are about implied consent. There are also debates about express consent, which seems like it would be cut and dried but actually isn’t.
There are several spheres of life where questions of consent are bubbling up. One is in medical care. I wrote last year about the recently settled lawsuit brought by the family of Henrietta Lacks, the woman whose “immortal” cells were used without her knowledge or consent in research that led to the development of treatments for diseases including cancer, Parkinson’s and the flu.
A second sphere is the capture and use of our personal data, which a lot of us expressly allow without even thinking much. A third is drunken driving: Many states have laws that say that getting a driver’s license constitutes an agreement to have your blood tested for alcohol content if a police officer suspects you’re inebriated. Defense lawyers, and many civil libertarians, argue that’s a violation of the Fourth Amendment, which protects against unreasonable searches and seizures by the government.
I’ll focus on the use of our personal data, since it’s a pervasive problem. To comply with privacy laws, websites won’t share your data without your express agreement. But who reads that fine print before clicking OK? Anybody?
True consent requires two things, understanding and autonomy, Joseph Turow, a professor at the University of Pennsylvania’s Annenberg School for Communication, told me. Turow and three fellow researchers wrote a paper on the topic that was published last year in The International Journal of Communication.
“You really can’t consent to something unless you understand it,” he said. “You also have to feel that you have autonomy to consent. That there’s a point to it. That you can do something useful by consenting or not consenting.”
Most of the time one or both of those conditions are missing, Turow said. “That’s where we came up with the idea of resignation. It’s the notion of wanting something to happen but believing that it can’t. We found that a huge percentage of people are resigned when it comes to their data.”
I admitted to him that I’m in that majority. In response, he told me what happened to him when he ordered a smart TV and the installers got to the part where customers have a chance to protect their personal data, or not. “One of the technicians said to the other, ‘Just agree to all the terms,’” Turow told me. “I asked him to wait.”
As a specialist in the field Turow figured he would read the disclosures in full and make considered choices. It was so convoluted that he needed a phone agent’s help. “That’s just one device,” he said. “How could you do this for everything else you own?”
Tess Wilkinson-Ryan, who teaches at Penn’s Carey Law School, told me, “The puzzle that I think is super interesting is, why are we so OK with the state of affairs in which companies draft agreements that most consumers don’t and can’t read, but are binding on the consumers?”
Since consumers haven’t been able to look out for themselves very well, regulation could help by prohibiting certain terms that disadvantage customers, she said. An example of that is the Consumer Financial Protection Bureau’s $8 cap on most credit card late fees.
Ordinary consumers accord “moral force” to contracts even when they’re unfair, Wilkinson-Ryan told me. She told me about a book she wrote that was published last year, “Fool Proof: How Fear of Playing the Sucker Shapes Our Selves and the Social Order — and What We Can Do About It.”
Wait, though, I asked. If people don’t want to be taken for suckers, why don’t they fight back harder against hidden fees and the like? “It’s a little subtle but here’s what I think is going on,” she said. “People have the following view: They don’t want to say, ‘I didn’t agree to that,’ because that’s what makes you feel like a sucker. They’ll say, ‘I stand by my word.’ ‘Win some, lose some.’ ‘I’m not being taken advantage of by these companies.’”
That, of course, plays right into companies’ hands.
Elsewhere: Women Are Advancing Economically
“Women are an increasingly important driver of economic advancement, helping to fuel labor force growth and consumer spending,” a Bank of America Institute report released Monday says. There’s still a ways to go: The Bureau of Labor Statistics says that in 2022, median earnings for women were only 83 percent of median earnings for men. But the institute estimates, based on internal bank data, that women’s earnings have been rising faster than men’s for the past few years. And women’s rate of participation in the labor force, while still below men’s, has rebounded faster since the depths of the pandemic.
Quote of the Day
“Physics investigates the essential nature of the world, and biology describes a local bump. Psychology, human psychology, describes a bump on the bump.”
— W.V. Quine, “Theories and Things” (1981)