Updated November 11, 2018
Thoughts about user data agreements on the internet
As I have been talking with more people and companies about the concepts of ‘consent receipt’ and how Kantara Initiative has developed it, I have been looking for a better framework within which to grow the concept and plan out future enhancements. This article describes what I have discovered and sets out some ideas for forward planning.
Kantara Initiative Work Groups on Data Sharing and Consent
KantaraInitiative.org is the global consortium improving trustworthy use of identity and personal data through innovation, standardization and good practice. To this end, we have two Work Groups established to treat information sharing, and consent management topics.
The Consent & Information Sharing WG (CIS WG) is one of the original work groups that has existed continuously since Kantara began 10 years ago. It is the home of work like the Standard Data Label, User Submitted Terms, the Kantara Consent Receipt Specification v1.1, and other projects and research related to information sharing from the person’s point of view.
The Consent Management Solutions WG (CMS WG) was started in 2017/2018 to create a library of consent management practices related to agreements to process personal data.
The two work groups are addressing different aspects of the same topic: how to legitimately empower the individual to make decisions about what personal data they wish to provide to organizations, and to give organizations tools to assist the individual in making these choices.
Planning for Future Work Topics
In order to plan for future work in the work groups, I propose to take a step back and look at the broader context of the work at Kantara. The CIS WG has been entirely focused on developing and publishing the Consent Receipt Specification for the last couple of years. Now we need to see if the receipt concept remains fit for purpose, and what adjustments are needed.
Finding the Right ‘Scaffold’ to Examine the Work Plans
Broadly, the two Kantara work groups are dealing with how individuals and organizations should act when the individual agrees to give data to the organization, or when the organization gets data about an individual. To limit the scope of discussion, the CIS WG decided to focus on the lawful basis of ‘data subject consent’ as described in GDPR and similar statutes.
But really, we are examining the agreement between data subject and data controller.
When a data controller offers services or products to a data subject, they typically specify terms of service and the consideration required in exchange for that service or product. The consideration might be financial, or it might be collection of the data subject’s personal data [NOTE: The work group pointed out to me this week that this characterization of personal data as a form of currency is incorrect. The data provided must be necessary for provision of the service – it is not to be considered as a trade-off]. The data subject is prompted to accept the terms, or to acknowledge the acceptance by continuing to use the service or product.
Thinking about this more deeply, I realized that we might be able to borrow concepts from contract law in common law to provide ‘scaffolding’ upon which to examine our work. This is obviously not a novel idea, but it has taken me a while to realize it.
Note that while I describe concepts and use terminology from contract law, I don’t believe that all data collection and processing agreements are necessarily contracts. [NOTE: AND the ‘valuable consideration’ described below is not ‘personal data’]
Basic Concepts in Contract Law
A contract is an agreement giving rise to obligations which are enforced or recognized by law.
There are three main activities required to enter into a contract: an agreement (a ‘meeting of minds’ consisting of an offer and acceptance); an intention to create a legally binding agreement; and consideration (‘something of value’ which is given for a promise and is required in order to make the promise enforceable as a contract) in both directions.
Now, relate this to the paragraph in the previous section:
When a data controller offers services or products to a data subject, they typically specify terms of service and the consideration required in exchange for that service or product. The consideration might be financial.
or it might be collection of the data subject’s personal data. The data subject is prompted to accept the terms, or to acknowledge the acceptance by continuing to use the service or product.
I note with interest that the GDPR Articles and Recitals also use similar terms when describing the interaction.
Now, let’s examine the work plan in light of this idea of using contract concepts.
The “Data Collection and Processing Agreement” Concept
Consider the diagram which is a representation of the same text in the previous section:
We can now ask questions about each ‘terminal leaf’ phrase:
- Is it clear to all parties that they are actually or effectively entering into a legal contract, even though the user experience may not look like a legal contract (there is no signature ceremony)?
- Is this arrangement fair and reasonable?
- Is there a power imbalance between the parties?
- Are the rights and obligations clear to the parties?
- Are the implications of the agreement and the consideration communicated clearly?
- Do both parties have the same opportunities for record-keeping?
- How are updates and changes managed?
- Is broad interoperability at this segment desired?
- Does the party have sufficient information to exercise their rights at a later time, or to change their mind?
We can also position work group publications and deliverables as tools or remedies that modify the answers to those questions.
For example, the Kantara consent receipt concept and specification address, among others, the ‘same opportunities for record-keeping’ and ‘sufficient information to exercise rights’ questions.
This approach should give the WG participants a way to identify areas needing work, and to articulate the rationale for doing that work.
Requirements Arising from Regulations
Note that the previous section does not explicitly call out the lawful basis of ‘consent’.
In order to apply this analysis correctly, we must include analysis of regulatory requirements and the obligations that regulations place on each party in the agreement.
Consider the following diagram which (loosely) describes GDPR-sourced requirements of the data controller:
These requirements stipulate what must be communicated in the ‘offer’ stage of the agreement. It also stipulates some required elements in the terms of the agreement. GDPR also hints at what ‘acceptance’ should look like (particularly in the situation of ‘consent’).
Join us! If this article interests you, and you want to help us influence the future of interactions between you and internet companies, these Kantara work groups are the place to do it! There is not cost but you are required to complete a Group Participation Agreement related to intellectual property rights.
The Consent & Information Sharing work group is currently deciding what the next pieces of work should be. I hope to convince everyone that this analysis approach will yield good results.
 I will use GDPR terminology in this article for consistency – the argument applies to most privacy and data protection legislation and regulatory environments.
The material about contract law is derived from “At a Glance Guide to Basic Principles of English Contract Law”, Advocates for International Development, undated. Accessed October 2018. http://www.a4id.org/wp-content/uploads/2016/10/A4ID-english-contract-law-at-a-glance.pdf