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Involuntary Consent

Illustration shows a check box, to represent consent.

I recently came across an interesting example of involuntary consent. Let me explain. My car is ten years old. I really like it, and it has low milage. But, when l was at the dealers getting an oil change I decided to take the latest model for a test drive.

Cars today have a lot of computers in them. This is nothing new. But now cars are constantly transmitting data back to the manufacturer. That’s new. And it means cars need a privacy policy. For example, the car I test drove had the disclaimer shown in the “Data Transmission Disclaimer” illustration.

Picture of a privacy disclaimer in an automobile to illustrate involuntary consent.

Data Transmission Disclaimer

“VEHICLE DATA TRANSMISSION IS ON!” Like the infamous tag on a mattress, only the owner of the vehicle can remove the sticker. So, what does this have to do with involuntary consent? Apparently you have to opt-out of such data transmission. However, it isn’t clear what the impact or the cost of choosing to opt-out really is. And you have to go online to find the privacy policy. How many people will actually bother to do that? I read it, and I am still not sure how the data is used.

Involuntary Consent

Involuntary consent is the opposite of affirmative express consent. The FTC and the GDPR require affirmative consent. Think of involuntary consent as the opposite of affirmative consent. Affirmative express consent occurs when a person agrees to be bound by a fully disclosed and understandable adhesion contract. Involuntary consent occurs when a person is forced to agree without understanding the implications of agreeing.

On its face, agreeing to transmitting the data doesn’t appear too onerous. First, location data. Okay, that might help me know where I am and help me get where I want to go. Second, vehicle health data seems pretty innocuous too. I might assume this means when I need an oil change, the car will notify me. No longer will I glance up at the little sticker on the windshield and realize I’m overdue for an oil change. That might actually be useful.

But then again, maybe the manufacturer is going to rat me out to car reporting services such as CarFax. Tell these services that I actually don’t take good care of my car. Lower the resale value. That might help the person who buys the car second-hand, but how does it help me? Based on typing my current car’s VIN into their website, CarFax already has 26 reports on my current car. Including servicing records. And reports from either the police, insurance companies, or body shops. I was once rear-ended in the car. Apparently they know that. So it seems like some of my car’s data is already in the wild. It may be available in public records. Or bought.

Finally, consider driving data. Likely, this includes data about how fast I accelerate. How hard I brake. How I change lanes. Data I am sure my insurance company would love to see. I know some insurance companies will potentially lower your insurance rate if you put a device in your car that collects this data. At least in this case you are aware the data is collected because you installed the device. You’ve already agreed they can use the data. Including likely using it against you.

Unknowns and Involuntary Consent

Suppose you disable the data transmission. What happens? How does the experience of driving the car change? Can you only disable part of the transmission? For example, the driving data? What if you have an accident? Will the manufacture give the data to the police? To the insurance company? Will they do this voluntarily? Of will they demand a subpoena or a order for discovery? Can you get a copy of the data? Can you add context to the data? Even after reading the policy, you likely will not know the answers to these questions. And that doesn’t cover the unknowns you can’t even contemplate now. New uses for this data.

And what is the choice? Buy the car or don’t buy the car. Could you even find a new car which does not transmit this or similar data. This is why consent in this case is involuntary. There is poor disclosure. And no real choice.

Disclaimer: Nothing in this post is legal advice. Before taking action about any matter discussed in this post you should consult an attorney.

 

 

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