Consent

I was walking down the platform at the train station when I caught eyes with a police officer. Instinctively, I smiled and he smiled back. When I got closer, he said “Excuse me, do you mind if I swipe down your bag?” He gestured to a machine he was holding. “Just a random check.”

The slight tension I’d felt since I first saw him grabbed hold of my spine, shoulders, and jaw. I stood up a little straighter and clenched my teeth down.

“Sure, I guess,” I said uncertainly.

He could hear something in my voice, or read something in my change of posture. “You have to consent in order for me to be allowed to do it.”

Consent. I’d just been writing about consent that morning, before going to catch the train down to New York for Thanksgiving. It set me on edge and made more real what was happening: someone wanted to move into my personal space. There was now a legal interaction happening. “I don’t want to be difficult, but I’d rather you didn’t if you don’t have to.”

“It’s just a random check,” he said. “You don’t have to consent.”

“What happens if I say no?”

“You can’t get on the train,” he gestured to the track with his machine.

“So, my options are to let you search my bag or not go see my family for Thanksgiving?”

“You could take a bus,” he offered.

I thought about how I wanted to say this. Words are powerful and important.

“I consent to this in as much as I must without having any other reasonable option presented to me.”

He looked unconvinced, but swiped down my bag anyway, declared it safe, and sent me off.

Did I really have the right to withhold consent in this situation? Technically, yes. I could have told him no, but I had no other reasonable option.

At the heart of user freedom is the idea that we must be able to consent to the technology we’re directly and indirectly using. It is also important to note that we should not suffer unduly by denying consent.

If I don’t want to interact with a facial recognition system at an airport, I should be able to say no, but I should not be required to give up my seat or risk missing my flight spending exceptional effort as a consequence of refusing to consent. Consenting to something that you don’t want to do should not be incentivized, especially by making you take on extra risk or make extra sacrifices.

In many situations, especially with technology, we are presented with the option to opt out, but that doesn’t just mean opting out of playing a particular game: it can mean choosing whether or not to get a life saving medical implant; not filing your taxes because of government mandated tax software; or being unable to count yourself in a census.

When the choice is “agree or suffer the consequences” we do not have an option to actually consent.

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