How Silicon Valley Puts the ‘Con’ in Consent

Credit Molly Snee

If no one reads the terms and conditions, how can they continue to be the legal backbone of the internet?

By The Editorial Board
The editorial board represents the opinions of the board, its editor and the publisher. It is separate from the newsroom and the Op-Ed section.

The average person would have to spend 76 working days reading all of the digital privacy policies they agree to in the span of a year. Reading Amazon’s terms and conditions alone out loud takes approximately nine hours.

Why would anyone read the terms of service when they don’t feel as though they have a choice in the first place? It’s not as though a user can call up Mark Zuckerberg and negotiate his or her own privacy policy. The “I agree” button should have long ago been renamed “Meh, whatever.”

The legal fiction of consent is blatant in the privacy scandal du jour. Both Google and Facebook have been paying people — including minors as young as 13 — to download an app that tracks nearly all their phone activity and usage habits.

Facebook advertised their app on services beloved by teens, like Snapchat and Instagram, seeking participants between the ages of 13 and 35. The sign-up process required minors to get parental consent. (How rigorous? Users simply had to scroll down and click on a check box.) In exchange for participating in what Facebook called a research project, each user received $20 a month, plus referral bonuses.

Similarly, Google’s Screenwise Meter app harvested user information in exchange for money. Google was a little more careful than Facebook, barring minors unless they were participating as part of a larger household.

It’s unlikely these children understood what they gave up by agreeing to use the app. And even if they’d received proper parental consent, their parents may not have understood what they were giving away on their child’s behalf.

But it wasn’t the predatory nature of these programs that prompted Apple to disable them on iPhones and iPads. Rather, Apple objected to how Google and Facebook had used a loophole to transmit customer data without having to go through Apple first.

In other words, it looks as though two tech giants and their armies of lawyers didn’t read the policy closely enough and violated Apple’s terms and conditions.

People are often startled by what they wind up giving away by clicking on the “yes” button. They are shocked to find when they connect their Spotify and Netflix accounts to their Facebook account that those streaming services gain access to their Facebook messages. They are confused and outraged by Facebook’s uncanny ability to recommend “friends” that the company shouldn’t really know about — say, a social worker’s client, a sperm donor’s biological child, a woman’s father’s mistress.

Data is powerful and can inform on us in unexpected ways. Companies learn all about you, but also all about your friends who haven’t signed up for these services. Consumers’ confusion about this gives rise to conspiracy theories that phone microphones are secretly snooping on users. According to academics who have done the research, that’s probably just paranoia. The likely truth is that all the other data you give away is enough to predict what you have said and will say in conversations.

Countless devices and internet services now pervade daily life. We don’t need to live in a world governed by their terms and conditions, propped up by the legal fiction of consent. If empowered and properly funded, the Federal Trade Commission can become the privacy watchdog that this era so desperately needs. And the repeal or modification of the Federal Arbitration Act can defang the very worst provision that so frequently pops up in terms and conditions — the surrender of the right to sue a company in court.

Legislation can mandate transparency about who has your data and can give users the right to stop it from being sold. New laws can lay down basic guarantees of privacy that won’t require you to wade through hundreds of thousands of words of legalese.

Europe is already leading the way with the General Data Protection Regulation. California has followed that example by passing a law with similar protections, scheduled to go into effect in 2020.

Americans deserve strong privacy protections. Consent is not enough to replace them. The clicks that pass for consent are uninformed, non-negotiated and offered in exchange for services that are often necessary for civic life. It’s time to start seeing the “I agree” button for what it really is.


The Chinese scientist who claims to have edited baby DNA is downplaying reports that he is under house arrest. Here’s a timeline of the controversy.

Peter Kotecki Jan. 14, 2019, 11:27 AM

In November 2018, a Chinese scientist claimed he had made the first genetically-edited babies in the world, causing sharp criticism from other scientists, ethicists, and government officials.

The scientist, He Jiankui, used the gene-editing tool CRISPR-cas9, which is considered risky because it can inadvertently change a large portion of a person’s DNA and have unintended consequences.

He, who worked on the experiment with US scientist Michael Deem, said he edited a gene called CCR5. The gene forms a “doorway” that allows HIV to enter cells, and turning it off makes people resistant to being infected in the future.

Even if everything went according to plan, the babies could be at greater risk of future health problems. The Associated Press reported that people without a regular CCR5 gene are more likely to catch the West Nile virus and die from the flu.

Many of He’s colleagues — including more than 120 Chinese scientists— have criticized He for choosing this route, saying there are plenty of ways to prevent HIV without putting someone in danger.

He has denied the twin girls were harmed.

Since November, He has became the subject of several investigations. Last week, several news outlets reported that he has been detained and may face the death penalty, though the scientist has reportedly said he is fine.

Take a look at this timeline explaining the controversy surrounding He’s research.


Responding to the Vatican’s Recent Responsum on Hysterectomies


An ob-gyn who has just delivered a new born baby after a caesarian section realizes that his patient’s uterus has been so weakened by the previous five caesarians she has had over the past ten years that he does not think that he can repair the woman’s womb. Instead of attempting to repair the structurally unsound womb that he knows will not be able to sustain a future pregnancy, may the ob-gyn perform a hysterectomy and remove the uterus instead?

The Congregation for the Doctrine of the Faith (CDF) at the Vatican has just published a doctrinal note, called a responsum, addressed to individuals who have wondered if it is morally permissible to remove a woman’s uterus if it is deemed unable to sustain a future pregnancy. The medical concern here is that a future pregnancy would put the mother’s life and the life of her unborn child in great risk because of the structural weakness of the womb. The CDF has replied that such a medical procedure would be morally acceptable because it does not constitute an act of direct sterilization.

To put it another way, according to the CDF, the ob-gyn described above could remove the uterus instead of repairing it. He would not be performing an act of direct sterilization, which would be immoral in itself. Why is direct sterilization immoral? Because it would deprive a person of her ability to procreate, in the same way that an act to blind someone would deprive the individual of his ability to see. Both would be acts of mutilation.

The precise medical diagnoses that prompted this note from the CDF were not specified. Historically, as we described above, the medical concern has been raised by women who have had multiple caesarean sections that have detrimentally weakened the structural integrity of the uterus and are therefore at risk for uterine rupture. Uterine rupture during pregnancy is considered a catastrophic complication that puts the lives of both the mother and her unborn child into immediate jeopardy.

Though I agree with the moral conclusion proffered by the CDF, I find the rationale they provide to support their proposal to be ambiguous and potentially confusing for two reasons.

First, in the classical account of human acts, an act is defined by its object. In its Responsum, the CDF proposes that object of the act of procreation “is to bring a baby into the world.” This is inaccurate. The object of the act of procreation is the generation of an individual of the same specific kind. This occurs when the sexual gametes fuse during conception. Thus, we say – correctly – that a couple who has conceived a child but who have suffered a miscarriage have already procreated even if they have not brought a baby into the world. We all agree that they are already parents.

The uterus is an organ ordered not towards procreation but to gestation, which is the act of nourishing and protecting an immature human being until he is able to survive outside the uterine environment. However, a hysterectomy can still be anti-procreative, not because it prevents an immature human being from being brought to term, but because it can prevent conception from happening in the first place.

Second, the CDF proposes in the Responsum that in the medical scenario that we are discussing here, “we are not dealing with a defective, or risky, functioning of the reproductive organs.” This is true, but it is also potentially misleading. We are not dealing with a defective functioning of the uterus, but we are dealing with a defective uterus. The organ itself is defective.

Consider: Any organ that is not able to realize its end is defective. An eye that is unable to see is defective, and a heart that is unable to pump blood in the circulatory system as it should is also defective. Thus, a uterus that is not able to gestate an immature human being until he is viable is not able to attain its end, and is therefore defective. It is a defective organ even if the woman is not pregnant.

Furthermore, we are dealing with a defective organ whose continued existence in the woman’s body, because it is defective and unable to attain its proper end, could place the life of the woman in grave jeopardy in the future. As such, I believe that its surgical removal can be justified by the principle of totality.

Recall that the principle of totality, as it was articulated by St. Thomas Aquinas, justifies the removal of a part of the body if it is decayed and therefore a source of corruption to the whole organism (cf. Summa theologiae II-II.65.1). Over the centuries, Catholic moral theologians have appealed to the principle of totality to justify different scenarios that involved the sacrifice of a bodily organ for the sake of the whole human organism

In light of this moral tradition, I propose that removing a structurally unsound uterus, when “medical experts have reached the certainty that an eventual pregnancy will bring about a spontaneous abortion before the fetus is able to arrive at a viable state” is an act that can be morally justifiable by the principle of totality because the continued presence of the now defective organ in the woman’s body places her long-term health and well-being at risk. As such it can be surgically removed.

An analogous scenario obtains with patients with chronic kidney disease. A failing kidney is at grave risk for turning malignant in the future. It would not be unreasonable, therefore, and I think that it is also morally justifiable by the principle of totality, for surgeons to remove a failed kidney even if it is not yet cancerous. Notice that in this case the removal of the failed kidney is not an act to prevent cancer. The patient may never have gotten cancer. It is an act to remove a non-functioning, defective organ whose ongoing presence in the patient is a risk to his long term well-being and health.

Next, though the act of removing the structurally unsound uterus is in itself an act that sterilizes the woman because it would prevent any future conceptions occurring after the conjugal act, this surgical procedure can still be justified by the principle of double effect. Here, the sterilization is a foreseen but unintended consequence of a surgical act whose object is to remove a defective organ whose continued presence in the woman’s body places her health and long-term well-being at risk.

Finally, in light of my moral analysis, I do not think that one can justify tubal ligations in this medical context. Here, the surgical procedure is done to ensure that conception does not take place. It is a direct act of sterilization. It is not an act to remove a defective organ whose continued presence endangers the long-term health of the woman.


United States: sales of human foetal tissue banned

The U.S. National Institutes of Health (NIH) announced that it will allocate $20 million over two years to research alternatives to human foetal tissue. The use of these human foetuses for research is not illegal in the USA, but it is highly controversial since this lucrative trade comes from abortion clinics. In a statement issued on Monday, the NIH announced that it was embarking on a major research effort to “develop and/or further refine human tissue models that closely mimic and can be used to faithfully model human embryonic development or other aspects of human biology, for example, the human immune system, that do not rely on the use of human foetal tissue obtained from elective abortions”.

Since September 2018, the 6,000 American researchers funded by the NIH have been prohibited from purchasing human foetal tissue. The contract between the United States Department of Health and Human Services HHS and Advanced Bioscience Resources – the main supplier of aborted foetuses in the USA – was terminated because “it was not sufficiently assured that the contract included the appropriate protections applicable to foetal tissue research”. The HHS has launched a comprehensive review of human foetal tissue research and has imposed a total freeze on procurement until the end of the review. The project to develop effective alternatives is still in its infancy. Procurement has been halted, but foetal research has not been banned. Researchers do not yet know whether the HHS, at the end of the review, will decide to suspend the research until alternatives are available.

Sources: TIME, Jamie Ducharme (11/12/2018)