Who’s Afraid of a Little Express Consent?

Facebook, digital publishers, and others who make money serving up ads to iPhone users are in a tizzy because Apple is doing something rather awesome for its customers.  It is requiring the explicit permission of iPhone  users before they allow apps to surveil their online movements for purposes of personalized advertising.  Here is where we step into the psychedelic world of consent permissions.  For years, Facebook and its pals in marketing and advertising sales, argued that users “consented” and granted permission to these data tracking practices by clicking “Agree.”  Contracts profs split over this issue – some argued that this was not consent; others argued that it was.  The no-reading problem wasn’t really a problem, according to those in the latter camp, because users would have agreed to the terms anyway.  (I wrote about this split in Greenbag a few years ago in the context of Margaret Jane Radin’s book, Boilerplate, and Omri Ben-Shahar’s review of it).  Ben-Shahar divides these two groups into the “autonomists” and the “boilerplate apologists.”  I prefer using less fancy terms so I’ll stick to calling them the “real consent” camp and the “no reading, no biggie” camp.

If the folks in the “no reading, no biggie” camp are right – and that consumers really don’t care about being tracked in exchange for personalized ads– then Facebook and its advertisers should have nothing to fear.   But I suspect that they will have plenty to fear and that Facebook knew all along that its version of consent was just another type of misinformation that it was guilty of distributing.