Why Is My Sleep App Recording Me at Night? Did I Consent to That?

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How would you feel if you discovered your smartphone was recording you while you sleep without your knowledge?

Last year, the co-host of my new “So, Bob” podcast, Alia Tavakolian, came to me when she discovered a sleep app had made dozens of such recordings. Worse yet, to hear what was on the files, she had to pay $4.99 to access a “premium” feature.

When we looked into it, we discovered that, indeed, Alia had “consented” to the use of her microphone — at least, she had clicked “yes” to something which the app maker considered consent. But she didn’t know the app would record her, and in no way did she give informed consent. She just wanted help falling asleep.

We all face this issue dozens of times each day. To access a feature, or to buy a product, or get a loan, you click “accept.” What did you agree to? What does it mean to obtain consent in the digital age?

This is a wide-ranging topic, and to get at the heart of it, we enlisted Sinzina Gutiu, a Canadian lawyer who’s one of the most brilliant minds on issues of consent and privacy. Our chat takes us all the way from sleep apps to robot sex, and I think you’ll enjoy it.

The argument is frequently made that consumers should read all the terms and conditions presented to them, but this is quite literally impossible. There isn’t enough time in the day. I’ve done plenty of stories on this through the years, many with the help of Theresa Amato at FairContracts.org.

Legally, these terms are often called “contracts of adhesion,” which is a fancy way of saying the terms are presented on a “take it or leave it” basis. Alia’s sleep app wouldn’t function if she didn’t grant it access to her phone’s microphone. You can’t buy the cellphone if you don’t agree to allow debt collectors to text you.

The terms of the agreement can’t be bargained, and the parties aren’t equal. As such, people like me think these shouldn’t be called contracts at all. Amato prefers the term “standard form contract” because that’s a bit more obvious. What are they, really? A list of rights that a corporation reserves for itself — and to consumers, a list of bad things that might happen to you after you do business with a corporation.

We consent to things constantly, both in our digital lives and in real life. Shouldn’t we live in a world where informed consent is the goal? How would we get there? Or is there some other, better model? (Hint: Yes!)

Can your sleep app really listen to you and charge you to hear yourself snore at night? This is the subject of the first full “So, Bob” podcast episode. Please listen by clicking play below, click over to iTunes or Stitcher, or find us wherever you get your podcasts.

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