The Myth of Consent in the Digital Age

By Paolina Salas '26

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Introduction

In today’s society, it has become common practice to routinely and blindly accept complex legal agreements without understanding the risks, responsibilities, or rights being surrendered. Terms and Conditions serve as legal contracts that outline the rights and responsibilities of users while protecting companies from liability. (1) In the digital age, they also function as mechanisms for securing user permissions for a wide range of company policies such as data collection, liability limitations and payment terms. This blog examines whether the consent given through these agreements meets the ethical and legal standards associated with informed consent in legally binding agreements. Additionally, it will also examine how the newfound strive for constant consumer engagement online, known as the Attention Economy, shortens attention spans and diminishes complex decision-making capacities. With such lengthy, dense, and jargon-heavy agreements, the feasibility of informed consent becomes increasingly tenuous in light of the decreasing capacity for sustained focus. (2)

Consent given through Terms and Conditions agreements carries higher stakes now than ever before. In today’s practice, they often dictate whether we allow our personal information to be bought and sold, or entail the surrendering of key legal protections. This raises the question of whether consent—limited to the mere click of a button rather than a true conceptual understanding of what one stands to lose—is sufficient to justify holding individuals to the standards and responsibilities associated with such agreements. This concern is especially relevant in comparison when its counterpart, informed consent (the higher standard to which these agreements arguably should be held), comes into the picture. Developing services, products, and programs involve increasingly complex systems and processes that require careful comprehension, which creates a tension with the declining ability to focus and digest technical information—especially the kind typically found in legal agreements, privacy policies, or ethical disclosures. As a result, users "agree" to terms without fully understanding their implications, undermining the legitimacy of consent in digital environments.

Terms and Conditions

Terms and Conditions are known for their dense, confusing legal jargon and ambiguous technical terminology that makes them nearly impossible for the average reader to understand. (3) Major platforms like Apple, Facebook, Amazon, and Google have some of the most opaque policies, but continue to thrive financially. (4) This complexity has contributed to staggering rates of people agreeing to the Terms and Conditions without understanding or even bothering to read them. According to Pew Research, most people do not read privacy policies—only about 20% read them thoroughly, and just 13% feel they understand them well. (5)

Another study conducted by Obar and Oeldorf-Hirsch in 2022 measured the average reading time for the Terms of Conditions of a fake social media network. The reading should have taken 15-17 minutes to read, but the 543 participants in the experiment averaged a 51-second reading time. (6) An astounding 93% agreed to the Terms and Conditions, which included a clause stating that data collected from the website would be sent directly to the NSA, their employers and that their first-born child would be collected as payment for the services provided by the platform. (7) Researchers found three main reasons for people not to read Terms of Service. First, information overload. Second, they think these terms have nothing to hide and that they won’t be affected. Third, people find the language too complicated to make sense of. (8) 

While the stakes in this experiment are extreme, they demonstrate the risk posed by companies’ use of a legal basis for securing broad user permissions while minimizing scrutiny and skirting accountability under the guise of user “consent.” While it is true that these practices present a problem, they also highlight a separate issue: people’s reluctance to dedicate time to understanding what they are agreeing to.

This may be in part due to the Attention Economy: the idea that human attention is a profitable resource in the digital age. This has prompted online platforms to incorporate designs that maximize engagement and time spent on their products and services by retaining user focus for as long as possible through the use of personalized algorithms, notifications, etc. By promoting rapid, bite-sized content that conditions users for quick gratification fueled by instant dopamine hits to the brain, the Attention Economy has produced reduced attention spans and increased digital addiction. (9) Over time, these factors erode the ability to concentrate, think critically, and engage in meaningful and uninterrupted focus. (10) As a result, it has become common practice to routinely and blindly accept complex legal agreements without understanding the risks, responsibilities, or rights being surrendered. This presents a critical challenge to the plausibility of implementing truly informed consent into the Terms and Conditions. Long-term effects of this lack of understanding and consent are initially less obvious and often seem less harmful, as their negative consequences usually only become apparent when something goes wrong. 

When Things Go Wrong

On August 18, 2023, plaintiffs filed a lawsuit against Uber in Rigano v. Uber Tech. They alleged that they were injured in a car crash while riding in an Uber. The personal injury lawsuit claimed that Uber’s negligence in supervising and managing its drivers and facilitating the use of its app ultimately led to the accident. (11) Uber responded with 57 affirmative defenses, one of which argued that the dispute should be resolved through arbitration– citing an agreement that the petitioner allegedly accepted in the Terms and Conditions when using the Uber App. (12)

Rigano stated she was unaware of any such clause and argued that Uber’s registration process did not clearly communicate or explicitly explain the terms of arbitration, its meaning, or its legal implications. (13) The court ruled in Rigano’s favor, denying Uber’s motion to compel the family into arbitration and allowing the personal injury lawsuit to proceed. Ultimately, the court found that Uber's arbitration agreement was presented in a way that failed to provide clear notice of the waiver of jury trial rights, and that it was therefore unenforceable. (14)

However, courts do not always rule by that logic. For example, In the case of Navarro v. SmileDirectClub, the court granted SDC’s motion to compel arbitration in light of Navarro’s claim that he had not knowingly agreed to it. (15) Like in Rigano, SDC showed that Navarro had accepted terms including an arbitration clause. The court ruled that SDC’s requiring users to check a box requiring “informed Consent” was sufficient to establish that Navarro had been properly notified of the arbitration clause because the language of the terms meant his acceptance entailed that he had understood what he had agreed to– regardless of whether this was actually a reflection of the truth. (16) 

Despite their seemingly similar circumstances, these cases produced dramatically different results that ultimately hinge on the legal distinction between mere consent and informed consent. While in Uber’s case, the court ruled that the arbitration clause failed to provide clear notice to users, as understanding was not expressly implied through acceptance of the terms. In the SDC case, the court accepted the argument that the plaintiff had given informed consent simply because he had been presented with language that entailed agreement was founded on understanding. Even though the facts suggest that Navarro, like Rigano, may not have fully realized the implications of agreeing to arbitration, the presence of the term "informed consent" carried significant legal weight. 

The Complications of Simplification

Examples like these might motivate one to call for changes that enable the possibility of true informed consent through shorter, simpler Terms and Conditions that are accessible to the average user. While efforts to make these agreements more digestible may help with some aspects of understanding, they cannot always fully replace the depth required to convey all relevant implications. For example, If a company simply says that it "doesn’t sell data" this leaves room for loopholes, including the possibility that they “share it with affiliates.” Even if further clarification about “sharing” practices is provided, these short clarifications create a slippery slope of questions that make it difficult to keep user agreements concise while still covering all relevant considerations necessary for true informed consent. 

Further, even if Terms and Conditions were rewritten in a way that balances brevity with clarity, another fundamental issue remains: the sheer volume of agreements people are subjected to. A study by Aleecia McDonald and Lorrie Cranor from Carnegie Mellon University calculated that reading all the Terms and Conditions one encounters over a year, estimating about 10 minutes per policy, would “cost approximately 201 hours a year, worth about $3,534 annually per American Internet user.” (17) On the national scale, “if Americans were to read online privacy policies word-for-word, we estimate the value of time lost as about $781 billion annually.” (18) This suggests that the problem is not just one of comprehension but also of practicality. If users do not have the time or incentive to engage with these agreements, then even the most well-crafted terms fail to ensure genuine informed consent. 

This raises a deeper question: is it possible to create a system where informed consent is both meaningful and practical in a complex and far-reaching digital world saturated with contractual agreements? 

What Next?

Going forward, one potential solution may involve informed consent as simply impossible. In the Harvard Business Review, philosophy scholar Helen Nissenbaum argues that the concept of informed consent is fundamentally flawed when applied to technology in the digital age. She says that the consent-based model is ethically inadequate because it shifts the burden of protection onto individuals, who cannot be expected to make well-informed decisions for every consent-requiring product or service, especially when each comes with its own set of complex and opaque terms. (19)

Instead of relying on consent mechanisms, Nissenbaum proposes an alternative framework called contextual integrity. This framework evaluates the responsibilities of data sharing practices according to societal norms, relationships, and ethical standards. (20) This approach ensures that data flows align with social expectations and moral values rather than defaulting to exploitative industry norms, shifting the focus from individual responsibility to responsible governance.

Adopting and enforcing regulations influenced by this principle would reverse inconsistencies in the way courts handle digital consent displayed through the Rigano and Navarro cases aforementioned. This change would indicate a considerate shift towards more consumer-protective practices in digital agreements and foster a more ethical relationship between users and the platforms they products and services with. After all, business practices would be much more ethically justifiable if they were truly operating within consumer interests to begin with instead of defaulting to justification based on having been “consented to.”

Endnotes

1. Ovaisi, Hamed. "Why Are Terms and Conditions So Important?" SO Legal, May 9, 2023. https://www.solegal.co.uk/insights/why-are-terms-and-conditions-so-important.

2. Yerby, Johnathan, and Ian Vaughn. “Attention Economy N.” Issues in Information Systems 23, no. 2 (2022): 138–149. https://iacis.org/iis/2022/2_iis_2022_138-149.pdf.

3. Ibid., 2.

4. Auxier, Brooke, Lee Rainie, Monica Anderson, Andrew Perrin, Madhu Kumar, and Erica Turner. "Americans and Privacy: Concerned, Confused and Feeling Lack of Control Over Their Personal Information." Pew Research Center, November 15, 2019. https://www.pewresearch.org/internet/2019/11/15/americans-and-privacy-concerned-confused-and-feeling-lack-of-control-over-their-personal-information/.

5. Ibid., 4.

6. Obar, Jonathan A., and Anne Oeldorf-Hirsch. “The Biggest Lie on the Internet: Ignoring the Privacy Policies and Terms of Service Policies of Social Networking Services.” Information, Communication & Society (2018): 1–20. TPRC 44: The 44th Research Conference on Communication, Information and Internet Policy, 2016. https://ssrn.com/abstract=2757465 or http://dx.doi.org/10.2139/ssrn.2757465.

7. Ibid., 5.

8. Ibid., 5.

9. Graca, Patricia Zanini. "The Dopamine Dilemma: Reclaiming Our Attention in an Age of Instant Gratification." International Policy Digest, April 8, 2025. https://intpolicydigest.org/the-dopamine-dilemma-reclaiming-our-attention-in-an-age-of-instant-gratification/.​I

10. Carpentier, Chantal Line. Attention Economy N. United Nations Economist Network. https://www.un.org/sites/un2.un.org/files/attention_economy_feb.pdf..

11. Rigano v. Uber Tech., Inc., 84 Misc. 3d 1208(A), 218 N.Y.S.3d 799, 2024 N.Y. Misc. LEXIS 8354, 2024 NY Slip Op 51381(U) (Supreme Court of New York, Westchester County October 02, 2024, Decided). https://advance-lexis-com.lp.hscl.ufl.edu/api/document?collection=cases&id=urn%3acontentItem%3a6D4T-T9Y3-RS7W-D2JM-00000-00&context=1519360&identityprofileid=8XHCHK54812.

12. Ibid., 11. 

13. Ibid., 11. 

14. Ibid., 11. 

15. Navarro v. SmileDirectClub, Inc., 2022 U.S. Dist. LEXIS 97929, 2022 WL 1786582 (United States District Court for the Northern District of CaliforniaJune 1, 2022, Filed). https://advance-lexis-com.lp.hscl.ufl.edu/api/document?collection=cases&id=urn%3acontentItem%3a65KH-DCD1-JKPJ-G186-00000-00&context=1519360&identityprofileid=8XHCHK54812

16. Ibid., 15.

17. McDonald, Aleecia M., and Lorrie Faith Cranor. The Cost of Reading Privacy Policies. I/S: A Journal of Law and Policy for the Information Society, 2008. https://kb.osu.edu/handle/1811/72839.

18. Ibid., 17.

19. Berinato, Scott. “Stop Thinking about Consent: It Isn’t Possible and It Isn’t Right.” Harvard Business Review, September 24, 2018. 

20. Ibid., 19.