I’ve been thinking a lot lately about Locke on property and consent, partly inspired by my recent travels, and partly by preparations I’m making for a workshop I’m doing this weekend in Lewisburg, Pennsylvania with Fred Seddon on his book, Ayn Rand, Objectivists, and the History of Philosophy.

Given that, this item in yesterday’s New York Times caught my eye, apropos of Locke (and/vs. Hume) on consent. The ostensible topic is Internet ads and ad blockers, but the underlying assumption is one about tacit or implicit consent.

Some background on Internet ads:

Advertising sustains pretty much all the content you enjoy on the web, not least this very newspaper and its handsome, charming technology columnist; as I’ve argued before, many of the world’s most useful technologies may never have come about without online advertising. But at the same time, ads and the vast, hidden, data-sucking machinery that they depend on to track and profile you are routinely the most terrible thing about the Internet.

Here’s the connection to tacit consent:

Now, more and more web users are escaping the daily bombardment of online advertising by installing an ad blocker. This simple, free software lets you roam the web without encountering any ads that shunt themselves between you and the content you want to read or watch. With an ad blocker, your web browser will generally run faster, you’ll waste less bandwidth downloading ads, and you’ll suffer fewer annoyances when navigating the Internet. You’ll wonder why everyone else in the world doesn’t turn to the dark side.

Well, everyone may be catching on. Ad blocking has been around for years, but adoption is now rising steeply, at a pace that some in the ad industry say could prove catastrophic for the economic structure underlying the web. That has spurred a debate about the ethic of ad blocking. Some publishers and advertisers say ad blocking violates the implicit contract that girds the Internet — the idea that in return for free content, we all tolerate a constant barrage of ads.

The link that goes to the “debate about the ethic of ad blocking” goes to a blog post by a programmer named Marco Arment who is arguing against the idea that there is any such implicit contract or tacit consent. He suggests, almost in passing, that there are two different issues involved here: By surfing the Web, do we tacitly consent to: (A) tolerate Internet ads (so that it would violate our tacit agreement to block them via ad blocking technology)? and (B) be tracked via the data associated with our computers, where the tracking is typically activated by clicking a hyperlink? In that case, there would be no “invasion” of privacy when that information was used for whatever purposes the trackers had in mind.

My inclination is to answer “no” to both (A) and (B), but in saying that, I can’t help thinking that my argument is potentially ambiguous as between three interpretations:

(1) There is a clear distinction between tacit consent and non-consent. These cases clearly fall on the latter side of the divide.

(2) Tacit consent is so defective a form of consent that it only counts as consent in a very special kind of case–a case in which you don’t actually have express or explicit consent, but you obviously don’t have coercion either; where it’s extremely plausible to think that if you asked, you could get explicit consent, but for some reason, it’s either impossible or impractical (or impracticable) to ask. The cases under discussion don’t qualify as the relevant kind.

(3) There is no clear distinction between tacit consent and non-consent. “Tacit consent” is a vague (or confused) idea, and the distinction between tacit consent and non-consent is itself unclear. Given the ambiguities of the idea and the fuzziness of the distinction, the default assumption should be that where you don’t have explicit or express consent, you don’t have consent. Since ex hypothesi we don’t have explicit or express consent here, we don’t have consent.

Claims (1) and (2) are distinct, but not exclusive; both are incompatible with (3). For now, I’ll just say that I reject (3) and am inclined toward some version of (2), with the proviso that the version of (2) I espouse might well reduce to (1). In other words, I’m inclined to think that there are contexts in which tacit consent makes good sense, don’t think (A) or (B) qualify, but think that some things might, and that we might ultimately be able to get clear enough on the issues for (1) to be the case. Anyway, let me deal with issue (A) here, leaving (B) for another time.

There’s a common tendency to conflate the reasonable (or prima facie reasonable) with the consented-to.  It seems eminently reasonable to think that if the Internet costs money to operate, and is paid for by ads, then anyone who uses the Internet ought to tolerate the ads that pay the “service” he’s using. The phrase “Internet costs money to operate” is of course ambiguous. In one sense, it refers to the World Wide Web as such: it costs money for the WWW to have been brought into existence, and to be maintained in existence. In another, it refers to individual websites: the content on any website involves labor that has to be paid for. Ads pay for the Internet in the latter rather than the former sense. But they do pay for it, and many if not most of us enjoy the content we enjoy because of it. It seems like free riding and also like an indulgence in self-defeating behavior to undermine the revenue source that pays for all of that (otherwise) free content. Of course, the “indulgence in self-defeating behavior” is only self-defeating in an extended, and possibly metaphorical sense: no single act of ad blocking by itself is liable to be self-defeating, but once ad blockers reach a certain critical mass, and become a “bloc,” so to speak, they’ll tip the revenue scales in such a way that the cumulative effect of all of their behavior will become self-defeating.

Even if we grant all that, however, I don’t think it establishes a tacit contract or implicit consent to ads. At least, I don’t think it establishes a contract or quasi-contract that is breached by the use of an ad blocker. Arment offers a reductio for thinking that there can’t be implicit consent in this case: if there were implicit consent, he says, we would be obliged to read every (word of every) ad that pops up or impedes our web surfing, but that’s obviously too demanding, so there can’t be implicit consent. I agree with the conclusion but not the argument. It seems to me that you could have a tacit obligation to tolerate web ads without having an obligation to read them every word of every one of them. You could likewise have an obligation to skim web ads (or “consider” them in some weak sense) without having an obligation to read them all the way through. In either case, you’d have an obligation incompatible with ad blocking.

My argument against tacit consent likewise takes the form of a reductio, but its logic is simpler and more transparent than Arment’s. It’s this: it cannot come as a total surprise to you that you’ve tacitly consented to something. In other words, in order to test whether you’ve tacitly consented to something, ask whether, in retrospect, you recognize having consented to it. If you make a sincere and conscientious effort, and come up with no recognition whatseover of having consented to the activity, you cannot have consented to it.

I realize that in other contexts, this would be a problematically permissive argument form. If p entails q, you can’t deny the entailment by asking yourself whether you recognize the entailment, and then deny the entailment in the case in which you don’t recognize it. But consent is in that very respect different from entailment. Consent is something that by definition you knowingly engage in and can remember having engaged in. I don’t mean that a momentary lapse of memory gets you off the hook from an act of consent. I mean that if you can’t in principle remember having consented, you can’t have consented. And if you don’t at all recognize the act of consent as an act of consent, there couldn’t have been one. That’s what makes consent such a weird concept–its extreme relativity to the agent’s states of mind while operating within a realist moral philosophy that in many contexts regards such relativity as irrelevant.

I’m sympathetic enough to the idea of tacit consent to acknowledge that you may not, in the moment of consent, recognize that the action A in which you’re engaged constitutes consent to something X, which consists of elements (i), (ii), and (iii)–at least not under that description. But once the moment of having performed A is past, you have to be able to recognize, in the first person, that the performance of A amounted to consent to X and/or consent to some (=1) of the element(s) constituting X. If you really, honestly, sincerely can’t do this, you can’t have consented to X, no matter how obvious it is to someone else that performance of A amounts to consent to X, and no matter how reasonable it is that performance of A ought to lead to performance of X. You may well be culpably ignorant for not grasping that performance of A ought reasonably to lead to performance of X, in the sense that any idiot grasps the connection that you’ve managed to miss. But being culpably ignorant of a connection is not the same as having tacitly consented to the existence of the connection. Even if I ought to know the connection between Internet ads, revenue, and the existence of the Internet, my not knowing it–even my culpably not knowing it–is not equivalent to my tacitly consenting to it.

That’s the long and short of my argument against tacit consent to Internet advertising. Before I read the Times’s article, I was well aware of the fact that there was a causal connection between advertising and the existence of content on the Internet, so that the one thing enabled the other. (Of course, I was also dimly aware of the bizarre exceptions to that rule, like Wikipedia, whose funding mechanisms still strike me as mysterious.) But I had no idea whatsoever that anyone had regarded recognition of the connection as one of tacit consent, so that in using the Internet I was consenting to advertising in a sense that would have made ad blocking the moral equivalent of a breach of contract (or even a quasi-breach of contract, or a breach of quasi-contract, or whatever). Maybe I’m the only idiot in the world who believes that. Maybe I’m culpable for not knowing more. But I still don’t think there is any clear sense in which I ever consented to the existence of online advertising in a sense that rules out my trying to block it.

I think something similar might be said about issue (B), but I won’t belabor that here. The basic point is that even if I was aware of the fact that when I clicked a hyperlink that allowed various entities to track me, I never took myself in that act to have consented to data-tracking. Hence I didn’t consent, even if data-tracking is a perfectly reasonable idea, and even if I should consent to it. (Of course, in case [B], there is sometimes express consent to data-tracking, e.g., when a site owner comes out and tells you that he’ll be tracking you if you click the following box. But that’s a separate issue.)

How does any of this relate to consent to government? As is well known, Locke relies pretty heavily on tacit or implied consent in his argument for the legitimacy of government in the Second Treatise. D.A. Lloyd Thomas puts the point nicely:

Locke is looking for some act the performance of which, though it would not count as the giving of express consent, would bind us to relinquishing our executive power of the law of nature just as if there had been an act of express consent. (D.A. Lloyd Thomas, Locke on Government, pp. 35-36).

Candidate acts include residence, immigration, inheritance (and/or bequeathal) of property, voting, acceptance of government benefits, and so on.

On my view, however, there is only one way to tell whether someone has tacitly consented to government. You have to ask them whether they recognize that some act X amounted to consent to government. I have no idea about the state of the social science research on this topic, but I’m inclined to think that if you ran my test on a representative sample of Americans and/or Western Europeans, you would discover that a good proportion of them had tacitly consented to government. My point is not that sheer consent to any old set of options establishes the legitimacy of the relevant governments, or that the consent that obtains in the actual case is consent to the right things in the right ways. It’s simply that the disposition to consent to government is there and can’t be waved away by appealing to the fact that we have no evidence in hand of express consent to a limited, rights-respecting government.

Given that, the usual gloss on Lockean consent is less of a problem than it seems:

The literature on Locke’s theory of consent tends to focus on how Locke does or does not successfully answer the following objection: few people have actually consented to their governments so no, or almost no, governments are actually legitimate. This conclusion is problematic since it is clearly contrary to Locke’s intention.

Few people have actually consented to their governments because, naturalized immigrants aside, few have been given the opportunity to give express consent. But if many or most people tacitly consent, there is reason to believe that if you clarified the issue of consent for them, and then properly structured the consent-options for them, they would consent. That they would consent doesn’t meant that they have consented, but it also takes some of the sting out of the claim that they haven’t. And that, it seems to me, is all that a Lockean theory of consent needs in order to be taken seriously.

I can’t resist adducing a counter-example to the common assumption I quote above–that “few people have actually consented to their governments.” The counter-example is American Indian tribes. Tribes are by all accounts sovereign governments, but to belong to a tribe, you must expressly consent to membership within it.

The rule is (implicitly!) stated in the 1981 Supreme Court case, Montana vs. United States 450 US 544. On the one hand, with respect to those non-Indians who don’t consent to tribal authority, tribal authority shrinks almost to non-existence unless licensed by consent (from the Wikipedia entry):

A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”^[1] No consensual relationships existed between the Crow tribe and the non-member sportsman. The tribe had also not said that the outdoor use of their lands by non-members would “imperil the subsistence or welfare of the tribe.”^[4] As a result of these conditions, the Crow tribe was not entitled to regulate the activities by non-members on their fee lands. The tribes “retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.” However, this case was dealing with non-tribal members who were not endangering the tribe.^[5] Due to the court’s statement that the tribal court could regulate conduct that “threatens or has some direct effect on the political integrity , the economic security, or the health or welfare of the tribe”, the tribe did not have the authority to impose fees and taxes on the non-Indian hunting and fishing use of tribal lands.^[10]

On the other hand, tribes can regulate the conduct of Indians (most obviously, members of the tribe itself), but tribal membership is essentially a matter of consent:

It is not always necessary for an individual to be formally enrolled in a recognized tribe to be regarded as a member for jurisdictional purposes….Nevertheless, [voluntary and consensual] enrollment provides by far the best evidence of Indian status. Whether enrollment is viewed as a most important factor, as in [United States v.] Bruce, or as a dispositive one, as in United States v. Stymiest…enrolled members are almost always found to be Indians. (William C. Canby Jr., American Indian Law, 6th ed., p. 11).

So essentially, American Indian tribes rule by the consent of the governed.

Postscript, August 24, 2015: A letter in today’s New York Times suggests that Social Security involves tacit consent:

To the Editor:

Re “Republicans Against Retirement” (column, Aug. 17):

We agree with Paul Krugman’s analysis, but we wish he would bolster the understanding of Social Security by liberally using the term “earned benefits.” After all, the system is not a giveaway. It is a “social contract” wherein workers agree to contribute a portion of their earnings through payroll taxes for the common good of present retirees in return for their future retirement funding by future workers.

This isn’t a government gift. It’s an earned benefit that the government facilitates. Unless we consistently reiterate the true nature and mechanics of this transaction, Republicans will continue to misrepresent it as an “entitlement.”

BARBARA GALLER

BILL GALLER

Redmond, Wash.

Whatever the merits or demerits of Social Security, I don’t see that it passes any plausible test of tacit consent. It certainly doesn’t in my case (not that I’m militantly against it, either: my point is simply that I haven’t consented to it). If anything, it’s likely to seem to pass a tacit consent “test,” ex post facto, in the eyes of its imminent beneficiaries: once the benefits are on the horizon, it may well seem, as a matter of confabulation, that you “tacitly consented” to their arrival. But  the test I was defending rules out consent-by-retrospective-confabulation. To tacitly consent to something, you have to have consented to it (past perfect); you can’t project your current approval backwards onto an “act of consent” that never took place.

It’s worth noting that the Social Security Administration’s (SSA) “Understanding the Benefits” pamphlet makes no reference whatsoever to the Gallers’ so-called “social contract.” It merely says that when you work, you pay into the Social Security trust fund. It says nothing about your agreeing, whether tacitly or expressly, to pay. And since it describes workers as paying a tax, it’s easy to understand why they’d do things that way: if SSA admitted that Social Security taxes were contingent on some voluntary act, the government might have to concede that taxes as such were contingent, and indeed, that some literal, non-hagiographical content had to be given to the Declaration of Independence’s claim that “governments derive their just powers from the consent of the governed.” That’s more contingency than most governments have ever consented to.

Anyway, if the Social Security Administration really believed that the legitimacy of its program rested on your consent, you’d think it would tell you at precisely this point–when it was explaining the nature of the program to its putative beneficiaries. That it doesn’t bring up consent suggests that consent is not involved. It’s an interesting question whether you can unilaterally consent to something that’s being forced on you. I don’t think you can.

It’s also worth considering this: Imagine that you’re employed (hence paying Social Security taxes) but belong to a demographic cohort whose unemployment rate is 80%, whose disability rate is high, and where life expectancy is well below 65. Would it be rational for you to consent to pay Social Security taxes? I don’t think so. Yes, by paying in, you get access to Supplemental Security Income (SSI, or “disability”) if you needed it (and you might). But if there’s a low probability you’ll make it to retirement age (and there is), is it fair to ask you to pay into a trust fund that supplements the retirements of people who not only will make it, but will far surpass it, and be living on Easy Street as they do? Again, I don’t think so.

In a case like this, a person confronted with the alternatives of paying an unfair tax versus being a free rider on the benefits conferred by an unfair system could, in my view, justifiably opt for the latter. In other words, if you belong to that cohort through no fault of your own, and can’t escape your circumstances through no fault of your own (or at too high a price to constitute a reasonable expectation), I think it’s perfectly justifiable to evade Social Security taxes, as long as you have a safe way of doing so. In fact, I’d go so far as to say that I think it’s legitimate to evade Social Security taxes and benefit from SSI in a case like that (there’s the free riding I was talking about).

Lesson 1: we should avoid conflating tacit consent with pious liberal mythology.

Lesson 2: free riding isn’t always wrong.

(I deleted the video I originally inserted after the post.)