Opt Out Programs Are Not Consent

By Darren Hamburger

As time moves forward the government’s relentless pursuit to slowly erode the individual’s right for privacy continues. Methods that actively seek to undermine an individuals right to privacy continue to thrive because the greater Australian population does not care to protest. One such tool frequently used are known as “Opt out programs” (OOP), these programs tend to be favoured by governments and the commercial sector a like. The assertion with these (OOP)’s is when an individual does not actively inform an entity not to use their information, consent is seen to be given and automatically applied. However, before we discuss the main issues relating to (OOP)’s, Lets look at a brief definition explaining the main differences between Opt out and “Opt in programs” (OIP).

“Opt in Programs”: When the individual specifically grants permission for their information to be used according to the program they are joining. In essence, opting in is a cognitive decision for the affirmative “yes I agree too” and by failing to actively agree to the terms and conditions the use of information is automatically refused. Thus protecting the individual from abuse. This is much the same way as actively signing a cheque, with my signature their is consent money may be removed from my bank account, while issuing a cheque without a signature their is no consent being provided for any transaction to occur.

“Opt out Programs”: When the individual is required to make contact with an entity to request their information not be used or the terms and conditions have not been agreed too. In essence, The failure to opt out will see all rights and privileges for the individual waved, thus taking advantage of a individuals inaction. (OOP) fail to protect the individual from abuse because inaction on the individual's side will see them agreeing to terms the individual may not be aware of or agree too in the first place. As with the signature on a cheque example that I provided for the (OIP), the equivalent to the (OOP) would be providing an unsigned cheque is grounds for the financial transaction to occur automatically, unless I contact the bank telling them no transaction should occur.

As we can see the fundamental difference between these two options are the (OIP) awaits for your consent and the (OOP) Automatically assumes consent is given unless otherwise notified. The individual that is either time poor, lazy or not cognizant of the terms and conditions being applied are bound to have their rights abused.

I would suggest the use of (OOP) are no different than obtaining information by deception. Just because an individual does not actively state they don't want their information to be used, does not mean that person has provided consent to use their information or had agreed to the terms and conditions of the contract. Much the same way that if the front door to your house is unlocked, does not mean you have provided consent for me to enter your house and take your prized possessions. In the court of law the common charges in this example are “theft, break and enter, obtain goods by deception” and the like. Why should the use of your information without your consent be any different? Another analogy I could use here is if i'm at a night club and have not specifically told the bar tender not to insert a drug without my knowledge when I order a drink, does not automatically grant permission to the bar tender to place a drug in my drink because I have not explicitly informed them not to do so.

Their are countless reasons why an individual may not be “active” in opting out. Some of the common reasons may be:

The person may not be specifically aware of such program exists
A person may not understand what will happen if they do not opt out
A person may encourter unforseen difficulties which prevents opt out at that specific time
A person may simply forget to opt out
A person may be time poor and be unwilling to spend extra time to say no to something that really should already be protected

These above reasons alone are sufficient to apply a ruling that (OOP) should be made illegal and rendered as unlawful. Much the same way the legal systems requires consent, cognitive competence and understanding for consent to be effectively applied.

Opt-Out Programs as a Relationship of Convenience

The (OOP) relationship of convenience is one where the governments have permitted themselves and others the lawful use of “Opt out” because it is far easier for themselves or for a cause at hand. The use of (OOP) places the responsibility upon the customer to act by removing themselves out of something they never agreed too in the first place, where it really should be the responsibility of the organisation to obtain active consent for the customer to enter into a program. A great example I can used here is, lets say that as a business man I have collated a mass amount of client data over the past 5 years. Now I have decided I wanted to try to make more money by selling all of the clients data to third parties. So I decide to construct an (OOP), and send all the clients letters telling them if they don't wish their information to be used, they must goto my website and take the time to search through and click on the selection that prevents the use of their information. Knowing full well their are going to be a certain percentage of people for one reason or another wont opt out so I can make money. But what could some of these reasons the clients may experience that would prevent them from opting out?

A person is dead tired from work, opens the letter and says they will do it tomorrow. But then forgets
Perhaps a loved one dies, the client has more pressing things to deal with than trying to refuse the program
A person is on holidays, doesn’t get back home before the due date of the marketing program
The marketing letter never arrives to he client
A person finds it too difficult to navigate the website, and doesn’t want to sit on the phone telling a person they don’t want their information to be used
The call center takes over 20 minutes to answer the phone
The person forgets the password, then has to redo the password, login and then refuse. All too time consuming
The customer doesn’t understand what an opt-out program is, due to intellectual disability and does nothing about it
The letter is written in English and the customer can only read Chinese
The letter is sent to a minor who does see an issue
The client is elderly and wouldn’t even know how to use a computer or the Internet, and what the hell is a website?
Client may have moved house

As you can see, their is literally a myriad of issues which could interfere with the customers real wishes to actively consent or not to programs. Yet even with the above listed reasons, because for what ever reason the client did not opt-out, as the business owner I am now in a position to use the information regardless of the customers real choice of consent. $$Cha Ching$$ I believe any business that invokes opt-out programs are only doing so because it is easier for the business and they are doing so knowing full well their is the real possibility the client will not respond and their information will be used. In simple terms, such opt-out programs unethically seek to take advantage of the customer for fulfill the business needs not the customers.

Conclusion:

In this article I have discussed the unethical practice of implementing “Opt out programs” and how such programs are designed to take advantage of inaction which I believe should be made illegal. “Opt out programs” infer an individual who does not supply an answer is automatically consenting to their information being used without explicit consent. I decided to write this article because my Internet Service Provider (ISP) had recently invoked an (OOP) and had recently provided me with a letter. Being so busy with work it took me a while to remember that I had to sign in and make the changes necessary to opt out using my information for their marketing purposes. Even though it took me a while to officially opt out of their marketing campaign, at no time did I actually consent nor did I ever want to consent to entering into such a marketing champagne. However because I had kept forgetting to make the changes, the (OOP) assumes that I granted consent which I never did at any time, which is the real issue of (OOP) because it is outright unethical, using information via deceptive measures. In my opinion, regardless if the information is individually identifiable, de-identified or even anonymous, the fact remains only an (OIP) is an ethical approach and all (OOP) should be discouraged. Any organisation who invokes an (OOP) should never be trusted because you will always be at risk of future changes in policies that you may not be aware an that time and your information will likely be used.

Until next time...

Darren Hamburger

Page Last update:04/11/2017

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