Journal tags: consent

I’ve been reading the excellent Design For Safety by Eva PenzeyMoog. There was a line that really stood out to me:

The idea that it’s alright to do whatever unethical thing is currently the industry norm is widespread in tech, and dangerous.

It stood out to me because I had been thinking about certain practices that are widespread, accepted, and yet strike me as deeply problematic. These practices involve tracking users.

The first problem is that even the terminology I’m using would be rejected. When you track users on your website, it’s called analytics. Or maybe it’s stats. If you track users on a large enough scale, I guess you get to just call it data.

Those words—“analytics”, “stats”, and “data”—are often used when the more accurate word would be “tracking.”

Or to put it another way; analytics, stats, data, numbers …these are all outputs. But what produced these outputs? Tracking.

Here’s a concrete example: email newsletters.

Do you have numbers on how many people opened a particular newsletter? Do you have numbers on how many people clicked a particular link?

You can call it data, or stats, or analytics, but make no mistake, that’s tracking.

Follow-on question: do you honestly think that everyone who opens a newsletter or clicks on a link in a newsletter has given their informed constent to be tracked by you?

You may well answer that this is a widespread—nay, universal—practice. Well yes, but a) that’s not what I asked, and b) see the above quote from Design For Safety.

You could quite correctly point out that this tracking is out of your hands. Your newsletter provider—probably Mailchimp—does this by default. So if the tracking is happening anyway, why not take a look at those numbers?

But that’s like saying it’s okay to eat battery-farmed chicken as long as you’re not breeding the chickens yourself.

When I try to argue against this kind of tracking from an ethical standpoint, I get a frosty reception. I might have better luck battling numbers with numbers. Increasing numbers of users are taking steps to prevent tracking. I had a plug-in installed in my mail client—Apple Mail—to prevent tracking. Now I don’t even need the plug-in. Apple have built it into the app. That should tell you something. It reminds me of when browsers had to introduce pop-up blocking.

If the outputs generated by tracking turn out to be inaccurate, then shouldn’t they lose their status?

But that line of reasoning shouldn’t even by necessary. We shouldn’t stop tracking users because it’s inaccurate. We should stop stop tracking users because it’s wrong.

Enforcement of the European Union’s General Data Protection Regulation is coming very, very soon. Look busy. This regulation is not limited to companies based in the EU—it applies to any service anywhere in the world that can be used by citizens of the EU.

It’s less about data protection and more like a user’s bill of rights. That’s good. Cennydd has written a techie’s rough guide to GDPR.

The Open Data Institute’s Jeni Tennison wrote down her thoughts on how it could change data portability in particular. While she welcomes GDPR, she has some misgivings.

Blaine—who really needs to get a blog—shared his concerns in the form of the online equivalent of interpretive dance …a twitter thread (it’s called a thread because it inevitably gets all tangled, and it’s easy to break.)

It’s increasingly looking like GDPR is a massive scaled-up version of the idiotic and horrifically mis-managed “cookie law”.

— Blaine Cook (@blaine) January 28, 2018

The interesting thing about the so-called “cookie law” is that it makes no mention of cookies whatsoever. It doesn’t list any specific technology. Instead it states that any means of tracking or identifying users across websites requires disclosure. So if you’re setting a cookie just to manage state—so that users can log in, or keep items in a shopping basket—the legislation doesn’t apply. But as soon as your site allows a third-party to set a cookie, it’s banner time.

Google Analytics is a classic example of a third-party service that uses cookies to track people across domains. That’s pretty much why it exists. We, as site owners, get to use this incredibly powerful tool, and all we have to do in return is add one little snippet of JavaScript to our pages. In doing so, we’re allowing a third party to read or write a cookie from their domain.

Before Google Analytics, Google—the search engine business—was able to identify and track what users were searching for, and which search results they clicked on. But as soon as the user left google.com, the trail went cold. By creating an enormously useful analytics product that only required site owners to add a single line of JavaScript, Google—the online advertising business—gained the ability to keep track of users across most of the web, whether they were on a site owned by Google or not.

Under the old “cookie law”, using a third-party cookie-setting service like that meant you had to inform any of your users who were citizens of the EU. With GDPR, that changes. Now you have to get consent. A dismissible little overlay isn’t going to cut it any more. Implied consent isn’t enough.

Now this situation raises an interesting question. Who’s responsible for getting consent? Is it the site owner or the third party whose script is the conduit for the tracking?

In the first scenario, you’d need to wait for an explicit agreement from a visitor to your site before triggering the Google Analytics functionality. Suddenly it’s not as simple as adding a single line of JavaScript to your site.

In the second scenario, you don’t do anything differently than before—you just add that single line of JavaScript. But now that script would need to launch the interface for getting consent before doing any tracking. Google Analytics would go from being something invisible to something that directly impacts the user experience of your site.

I’m just using Google Analytics as an example here because it’s so widespread. This also applies to third-party sharing buttons—Twitter, Facebook, etc.—and of course, advertising.

In the case of advertising, it gets even thornier because quite often, the site owner has no idea which third party is about to do the tracking. Many, many sites use intermediary services (y’know, ‘cause bloated ad scripts aren’t slowing down sites enough so let’s throw some just-in-time bidding into the mix too). You could get consent for the intermediary service, but not for the final advert—neither you nor your site’s user would have any idea what they were consenting to.

Interesting times. One way or another, a massive amount of the web—every website using Google Analytics, embedded YouTube videos, Facebook comments, embedded tweets, or third-party advertisements—will be liable under GDPR.

It’s almost as if the ubiquitous surveillance of people’s every move on the web wasn’t a very good idea in the first place.