If ever there was a way to lose a reader’s attention, it is to write a sentence like this one: “To the extent permitted under local laws, the company excludes the implied warranties of merchantability, fitness for a particular purpose and non-infringement.”
If you use a copy of Microsoft Word, however, you are as surely bound by this clause as you are by the hundreds of others that appear in its 21-page software licence agreement. Each time you take advantage of a free search engine, smartphone application or social network you tie yourself implicitly to many hundreds more, signing away your privacy, your information and dozens of legal liabilities beneath a haze of jargon.
Today Matthew Hancock, the digital minister, will set out his department’s plans to redress some of the imbalances of power over personal data. It is a chance for the government to give its citizens control over a resource that has filled the coffers of the four biggest companies in the world, with a combined market capitalisation that is nearly as large as the British economy.
There is every sign that this opportunity will be squandered. Mr Hancock proposes to establish a “right to be forgotten” that will allow people to ask online publishers to delete personal information from their pasts. Internet users will have to actively tick boxes permitting companies to exploit or circulate their personal data, while these companies will face fines of up to £17 million or 4 per cent of worldwide turnover for serious data breaches.
As it stands, the bill will do little more than meld into UK law a set of European Union regulations which, while welcome as far as they go, do not go anything like far enough. But Britain’s imminent exit from the EU gives Mr Hancock latitude to take a lead on what is fast becoming one of the most important questions of the internet age.
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At the centre of the “big data” revolution is a basic asymmetry. Companies such as Google and Facebook earn tens of billions of pounds a year by processing a commodity that is almost valueless to the individual in its raw form. In exchange for free or affordable services, internet users sign up to terms and conditions they do not have time to read, governing uses of their personal information whose details they will never discover. This is an untenable mockery of consent. Survey data suggests that only 7 per cent of British adults routinely trudge through the user agreements for the products they buy online, while 21 per cent say that they have suffered as a result of not doing so.
Caveat emptor is a fine legal principle that has outlived its usefulness in the era of the web. Contracts that bloviate and obfuscate to the point of illegibility are nothing new, and consumers should certainly be more alive to the fact that there is no such thing as a free lunch. But it is entirely unreasonable to expect people to give up extensive rights to their personal data with a single mouse-click, particularly if they are unaware that they are even taking part in a transaction.
These contracts must be refashioned into something much more ad hoc and conditional if they are not to become a kind of digital slavery. One way forward would be to make companies ask their customers every time they want to process their information. Some experts have floated the idea of “micro-payments” through which people would receive a few pennies for each use of their data. None of this will be technically or politically easy. The price of inaction, however, is servitude.