The challenge of Design to Informed Consent

Perhaps one of the greatest challenges to informed consent in our lives is not just the news that we probably don’t do all our own thinking (see my first two posts in July and August of 2018), but the very designs of consumer items that are supposed to make life easier for us by reducing the number of decisions we make and the individual tasks to implement those decisions (see User Friendly: How the Hidden Rules of Design Are Changing the Way We Live, Work, and Play, Cliff Kuang with Robert Fabricant). Recently Gmail has begun typing ahead of me what I might write next, and every time I insert an address, wants permission to suggest appropriate addresses – I always have to disregard that and look down a little farther to determine whether it will obey me and insert the address and the comments I have written without its suggestion. Of course I wonder whether others writing to me have actually deferred to Gmail`s suggestions. With whom or what am I having this written conversation?

I am fascinated by the central importance and uses of metaphor in our lives and as  patterns for AI, as suggested by the book above, and Metaphors We Live By, by George Lakoff and Mark Johnson. Kuang illustrates with the metaphor of horse-riding applied in steering the Audi S “self-driving” car. As the car begins to assume control, it moves the steering wheel farther from the driver’s hands, as a horse rider will loosen the reins on a horse to let him “have his head.” This is part of a process designed to inform the driver about the car’s intentions, gradual assumption of control, and execution of the task, also giving the driver the feedback of green lights. We tend to think in metaphors and analogies, “What was it like to drive that car?” We think in other ways, too, of course, but metaphors help us assemble familiar concepts and unfamiliar ones, leaving the impression we understand them – a metaphor paints the unfamiliar with a customary and comfortable colour.

Therin lies the danger for informed consent. The metaphor might be inaccurate, or may hide incompatible matters, or may dissuade us from looking at something carefully. The more often we can believe that our metaphors have given us sufficient understanding of a matter, the less likely we will dissent. I suppose this familiarity is what contributes to confirmation bias.

Kuang and Fabricant assert that good design seeks to know what you need, not just what you think you want. So for example, you want to arrange to meet several friends for dinner. You text each individually to learn if they share that desire, whether they have a favourite restaurant, and preferred dates. So, having gathered that information from each, you text a selected restaurant to learn whether there is room for your number on the preferred date and hour. Once you have that response, perhaps changing the time a bit, you contact each friend again to see whether that is compatible. It is. So you confirm with the restaurant. What you need, writes Kuang, is not all those individual actions. What you need is to get together with friends to eat. A well designed app would ideally do all that communicating for you, so that you could get on to other matters in life without having taken the time and effort to do all those individual tasks. Very appealing.

Add to this the truth that our apps and other smart phone content are designed to addict our behaviour, and you see the enormity of the problem for informed consent. If we give in to such design, where our needs are met whether we recognize them or not, then if apps break down, will we have the resilience to carry on? Will we remember how to break down what we want to do into tasks which we still know how to accomplish, or will we be too accustomed to our wishes being anticipated?

It is important to preserve our agency in all regards; this is central to informed consent. Christopher Wylie (Mindf*ck: Cambridge Analytica and the Plot to Break America) writes this:

The foundation of our legal system is contingent upon the notion that our environment is passive and inanimate. The world surrounding us may passively influence our decisions, but such influence is not motivated…. Over centuries, the law has developed several fundamental presumptions about human nature. The most important of these is the notion of human agency as an irrefutable presumption in the law—that humans have the capacity to make rational and independent choices on their own accord. It follows that the world does not make decisions for humans, but that humans make decisions inside of that world. ……The rights to life, liberty, association, speech, vote, and conscience are all underpinned with a presumption of agency, as they are outputs of that agency. But agency itself has not been articulated as a right per se, as it has always been presumed to exist simply by virtue of our personhood
We risk creating a society obsessive about remembering, and we may have overlooked the value of forgetting, moving on, or being unknown. Human growth requires private sanctuaries and free spaces where we can experiment, play, dabble, keep secrets, transgress taboos, break our promises, and contemplate our future selves without consequence to our public lives until we decide to change in public. History shows us that personal and social liberation begins in private. We cannot move on from our childhoods, past relationships, mistakes, old perspectives, old bodies, or former prejudices if we are not in control of our privacy and personal development. We cannot be free to choose if our choices are monitored and filtered for us… Privacy is the very essence of our power to decide who and how we want to be. Privacy is not about hiding—privacy is about human growth and agency.” {Emphases mine}

I have not studied law as he has, so I cannot critique his assertion about the foundation of our legal system, but I am attracted to it. His concept of the place and usefulness of privacy may, I think, also be said of informed consent. I cannot imagine informed consent being formed in any environment other than privacy and quiet.

What apps and other tools can we do without? I often hear people complain about the tyranny and ubiquity of communication devices and apps – that to refuse consent to what the apps want us to let them do, information they want to send to third parties, etc., means you are cast out. Nonsense this is, of course, because we still can send actual hard-copy letters (it’s necessary to specify hard-copy as the alternative to electronic communication, in itself a sign of the dominance of the e-world), or send a computer fax or a paper fax. And of course we can still chat on phones – but perhaps not without anxiety, because if we are talking politics, we never know what and whose algorithm is listening. We may know enough about these matters to give informed consent. But it is not free consent, because we lack acceptable alternatives that keep us in touch.

We can still have resilience. The solution is simple, although it requires making conscious choices and setting about deliberate actions. We can talk on phones, meet in person, learn to read and research among primary documents. We can learn to read entire documents for context and then do our own extractions of the relevant material, rather than depend upon a search engine to extract information for us. This takes much time and requires planning to do things in advance. It used to be that I would purchase a year’s “stack privileges” at the University of Toronto, so that I could schedule research time to prepare sermons months in advance. I would set aside a day or two and travel to the libraries there, use their on-line catalogues to find relevant books, bring them down to a table, read, photocopy and/or take notes, and assemble information so that my sermons would be well-researched. It was great: take the train in (a wonderful time for watching the world go by, perhaps chatting with someone else on the train, reading and thinking), spend the morning at one library; eat at one refectory or another and listen in to student conversations; afternoon of further research. Evening meal at another refectory. Home on the train, perhaps after an excellent martini at the Library Bar at the Royal York Hotel across from Union Station.

But a day away for such activities reduced time for actually writing upcoming sermons, providing pastoral visits in hospitals, and time with my family. Now I can get an enormous amount of information on-line which will equip me to write, and leave much more time for my other duties. But not having that time on the train, the exposure to the campus atmosphere, the physical sensations involved in routing around the libraries, spreading out the books, making notes, casting my eyes around rooms actually designed to facilitate study and thought, depleted my joy of living and narrowed it. But I got more duty done. I can still and did read the actual source books, not just the search-engine extracts, so I have not entirely given in to Google’s telling me what’s what. I don’t have to consent to on-line information as the sole or best source of information. I don’t have to ever use Wikipedia. But using these conveniences often seems the best use of my time. I can tell myself that I have withheld consent to the value of the information because I plan to read up on the topic myself in the future. Promising myself that I’ll do better in the future is a way of easing my conscience while I take the quick route now.

So there is a trade-off: I can turn down the quick way, the convenient way, to do things if I am willing to do less else. This is a legitimate choice. The clergy work life, like probably so many others, is one in which there is never really enough time to do everything that should be done. So if there is never going to be enough time anyway (in the sense of the Greek chronos, as in the clock’s time), why not choose to use my time satisfyingly (kairos¸ experiencing the value of a moment). That is to say, decide among the choices of doing as much duty as I have time (chronos) for, being efficient; and doing the things which will accomplish what my work is about in general (if not every specific meeting, visit, etc., each day) and doing things which nurture my soul, give me time to think for myself, to let my mind roam over the broader landscape of ideas, values, and emotions, and to give my spirit time to commune with the Divine. Give informed consent to those choices, with full confidence that I understand the reasons for my decisions, and the values in them.

Doing this is how I’ll keep my resilience for the times when the electronic work breaks down, or becomes so potentially deceptive that I really can’t trust it (see https://www.nytimes.com/2020/01/24/opinion/sunday/surveillance-capitalism.html and Surveillance Capitalism in the Digital Age, also by Soshana Zuboff).

Living life this way requires some additional activities, however. To do what I’ve outlined in the paragraphs immediately above, I must help preserve my religion and the institution which fosters it; I must watch over the libraries, both community and academic, to ensure that they keep books and papers so that the contexts of thought and knowledge are still available to me. Also I must protect them from political interference and out-and-out destruction (see The Library Book, Susan Orlean; Library: an Unquiet History, Matthew Battles; The Bad-Ass Librarians of Timbuktu and Their Race to Save the World’s Most Precious Manuscripts, Joshua Hammer). I must be aware of how other information sources seek to organize knowledge (see Alberto Manguel’s The Library at Night, and A History of Reading). I must say to those around me, “There are more important values than efficiency, doing as much as possible in a day, and opting in to systems which seek to make choices for me.” There is the value of living in the moment, feeling the temperature and humidity and weather with my own skin, not just reading a weather app; being physically with other people, seeing them, breathing the same air, listening, watching their physical cues as well as listening to their words; looking out at different things every day just to expand my world of experience; thinking about and appreciating the efforts and skills of other people in delivering the possibilities of my car, a train, food, the public washrooms en route to somewhere, the building where I meet people and things; and consciously appreciating the people who organize libraries and religions and politics. There can be a real joy in talking individually with friends in one or more restaurants and coffee shops. Doing all that can enrich my life. Doing all that is the journey. Just getting to the chosen place and meeting the select people is, by comparison, merely the destination. And we all know that life is about the journey, not just the destination.

Keeping informed consent is a way to stay on the journey more, and to decline to be delivered to a destination without any journey whatsoever. Informed consent is vital to this.

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