10 December, 2015

The limits of informed consent

In the liberal worldview, informed consent is seen as the cornerstone of all kinds of relationships, be it personal or professional.

Often times, relationships operate under some form of a "power asymmetry" where one party dominates over the other in some matters. For instance, bosses can overrule their reportees, a higher court can upturn the decision of a lower court, and so on.

Sometimes, power asymmetry crosses objective boundaries and tread into the personal lives and the individuality of the people involved. For instance, the military controls personal lives of its personnel to a large extent and agents in the movie industry often dictate to their clients when they can get married, and so on.

Such cases often poses ethical dilemmas, which are often sought to be resolved using the "informed consent" axiom. Basically, it means that if someone willfully and knowingly enters into a relationship where they experience power asymmetry positioned against them, they don't have a case for justice.

But this post is meant to argue that even informed consent has its limits.

To make my point, let me take the example of some of the new forms of employee "productivity enhancement" tools. Some of them collect so much data from employees in the name of integrity or productivity. These data include elements like their location, their phone details, their internet usage details, details about web pages visited, email details, details about time spent at different locations at work, and even details about emotional state and inter-personal relationships.

The "informed consent" in such cases are often vacuous. Usually, consent about these measures are buried in a long legal contract, for which the employees just have two choices: take it or leave it. Existing employees consent to such contract mostly out of fear of losing their jobs. Indeed, anyone trying to speak against such measures are immediately seen as suspects of some sort, trying to undermine the organizational goals for personal gain.

Such practices are not only unethical and counter-productive, I also believe that they should be made illegal. Labour laws of today were basically framed in response to centuries of exploitation of employees under different other forms of such "productivity enhancement" measures. Advances in information technology and data sciences have opened a backdoor to these practices to be reinvigorated. We should not wait till things reach such desperate levels, before framing adequate laws.

One might argue that such forms of power asymmetry controlling one's personal lives also exist in cases like doctors and patients, lawyers and clients, etc. The difference here is that in these cases, personal information and power asymmetry is used for the direct benefit of the one below in the power asymmetry. This is not the case with the "productivity enhancement" example. In this case, power asymmetry is used for greater benefit for the company, which may or may not trickle back to the employees whose personal lives and individuality were intruded upon. Secondly, with the case of doctors or lawyers, the personal information collected is directly relevant to the problem being faced by the recipient which is sought to be solved. While in the case of employees, even if they get back a benefit in the form of a better pay, it may not directly compensate for the personal information and control relinquished by them.

Informed consent is meaningless when there are no available choices to those facing power asymmetry stacked against them.