So, Bob podcast: Why is my sleep app recording me at night? Did I consent to that?

Follow Sinziana Gutiu on Twitter

How would you feel if you discovered your smartphone was recording you while you sleep without your knowledge? Last year, co-host 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. If this continues, it may be easier to check out sites like to help with getting yourself a good night’s sleep.

When we looked into it, we discovered that, indeed, Alia had “consented” to the use of her microphone — at least, she had clicked “yes” 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 Legally, they 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 cell phone 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” episode. Please listen by clicking play below, click over to iTunes or Stitcher, or find us wherever you get your podcasts.

About Bob Sullivan 1380 Articles
BOB SULLIVAN is a veteran journalist and the author of four books, including the 2008 New York Times Best-Seller, Gotcha Capitalism, and the 2010 New York Times Best Seller, Stop Getting Ripped Off! His latest, The Plateau Effect, was published in 2013, and as a paperback, called Getting Unstuck in 2014. He has won the Society of Professional Journalists prestigious Public Service award, a Peabody award, and The Consumer Federation of America Betty Furness award, and been given Consumer Action’s Consumer Excellence Award.

1 Comment

  1. Good discussion. Need to summarize problem and conclusions of this interview with clear decisions on what policymakers should do to address and rectify this.

    What are your final recommendations for users based on interview discussion?

    It would be nice to see summary of above in transcript/written form. Blog?

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