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Abstract

The clickwrap is a digital prompt that facilitates consent processes by affording users the opportunity to quickly accept or reject digital media policies. A qualitative survey analysis was conducted (N = 513), assessing user interactions with the consent materials of a fictitious social media service, NameDrop. Findings suggest that clickwraps serve a political economic function by facilitating the circumvention of consent materials. Herman and Chomsky’s notion of the “buying mood” guides the analysis to analogize how social media maintain flow to monetized sections of services while diverting attention from policies that might encourage dissent. Clickwraps accomplish this through an agenda-setting function whereby prompts encouraging circumvention are made more prominent than policy links. Results emphasize that clickwraps discourage engagement with privacy and reputation protections by suggesting that consent materials are unimportant, contributing to the normalization of this circumvention. The assertion that clickwraps serve a political economic function suggests that capitalist methods of production are successfully being integrated into social media services and have the ability to manufacture consent.

Keywords

privacy political economy social media clickwrap consent

That the manufacture of consent is capable of great refinements no one, I think, denies. [. . . ] the opportunities for manipulation open to anyone who understands the process are plain enough.

– Walter Lippmann, 1922/1977, Public Opinion

(If) the powerful are able to fix the premises of discourse [. . . ] the standard view of how the system works is at serious odds with reality.

– Edward S. Herman and Noam Chomsky, 1988, Manufacturing Consent

“I agree to the terms and conditions” is referred to anecdotally as “The Biggest Lie on the Internet” (Obar & Oeldorf-Hirsch, 2018). Whether the extent of the lie is to the degree the anecdote suggests, consent failures, specifically the efforts and mechanisms to blame for these failures, along with the implications, are increasingly coming into view (Cate, 2006; Madden, Gilman, Levy, & Marwick, 2017; Nissenbaum, 2011; Obar, 2015; Obar & Oeldorf-Hirsch, 2017; Reidenberg, Russell, Callen, Qasir, & Norton, 2015b; Solove, 2012). The clickwrap is one such mechanism to blame (see Figure 1). The clickwrap is a digital prompt that facilitates consent processes by affording users the opportunity to quickly accept or reject digital media policies. While clickwraps may indeed facilitate consent processes, they also help circumvent consent materials. They direct users away from policies that might encourage dissent and ensure users stay in fast lanes to monetized sections of services. This suggests clickwraps keep users in what might be analogized to Herman and Chomsky’s (1988) “buying mood” (p. 17), “fix(ing) the premises of discourse” (p. xi) and ensuring the “manufacture of consent” (Lippmann, 1922/1977, p. 158). In doing so, clickwraps reveal a political economic function—discouraging and even thwarting the critical inquiry central to notice and choice privacy frameworks while concurrently, and in the social media context especially,¹ “channeling and structuring online activity to suit the needs of business models” (Cohen, 2008, p. 17).

Figure 1.

Facebook quick-join clickwrap (left); close-up of the clickwrap (right).

Consent is fundamental to legal approaches to privacy online (Federal Trade Commission [FTC], 1998). Across international contexts (i.e., United States, Canada, the European Union [EU], and elsewhere) where privacy laws are designed based on Fair Information Practice Principles (FIPPs), lawful data management practices are defined, in most cases, as those to which users have consented. This generally involves data management practices associated with data collection, organization, use, retention, and disclosure. There are exceptions unique to extreme legal scenarios, such as disclosure practices involving law enforcement, but for the most part, consent is a “cornerstone” of privacy law modeled on the FIPPs (see Office of the Privacy Commissioner of Canada [OPC], 2016). What complicates this reality is the extent to which users are able to provide consent and the forms of consent delivered.

The highest standard of consent is informed consent, which refers to “an autonomous authorization” by the individual (Faden & Beauchamp, 1986). In its purest form, this theoretical ideal suggests that individuals are knowledgeable about all aspects of that to which they are consenting—a thorough form of self-governance. Visualizing a consent spectrum with informed consent at the normative end, implied consent might exist on the spectrum, but at some distance from the theoretical ideal. Implied consent refers to an assumed form of consent where direct acknowledgment is not given. For example, the act of using a social media service where terms of service (TOS) are available via a link provided in an app or on a website would be considered providing a form of implied consent, even without accessing, reading, or explicitly agreeing to the policies.

Assessments of digital media consent processes have typically addressed the methods employed for providing users information about data management. The legal terminology describing these processes is “notice.” Indeed, notice has traditionally been viewed as fundamental to delivering privacy and reputation protections (FTC, 1998). As the FTC once noted,

Consumers should be given notice of an entity’s information practices before any personal information is collected from them. Without notice, a consumer cannot make an informed decision as to whether and to what extent to disclose personal information. (p. 7)

Assessments in this space have generally addressed relationships between users and the policies themselves. Referring to scenarios where informed consent is attempted through the presentation of TOS and privacy policies via a digital service, some scholars suggest the length and abundance of policies creates considerable consent challenges (McDonald & Cranor, 2008). Others raise concerns associated with achieving within- and across-group understanding of policy language (Reidenberg et al., 2015a). More recent research suggests that challenges are linked to user resignation (Turow, Hennessy, & Draper, 2015) and even the belief that it is “a cultural norm not to read (policies)” (Obar & Oeldorf-Hirsch, 2018, p. 15). An ignoring culture of this type may be perpetuated because when individuals access services, they aim to enjoy “the ends of digital production, without being inhibited by an education or a discussion about the means” (Ibid, p. 16). Said another way, when an individual downloads a social media service, for example, their primary focus appears to be the service itself, not tangential issues such as Big Data and eligibility (Ibid).

This begins to explain why the length, abundance, and complexity of policies may hinder user engagement with consent processes, but does not tell the whole story. Research addressing policy interface design and usability (e.g., Jensen & Potts, 2004; Schaub, Balebako, Durity, & Cranor, 2015), and strategies for enhancing policy engagement (e.g., Acquisti et al., 2017; Harkous et al., 2018; Wilson et al., 2016), suggest further that the traditional offline contract model does not appear to translate well to digital services. More importantly, the literature suggests that the path to consent materials, whether clear or hidden, easy or difficult, may play a considerable role in the consent processes for social media services, as well as in the perpetuation of a problematic ignoring culture. The central focus of the current inquiry is the suggestion that clickwraps, as presently designed, may raise political economic concerns associated with the desire to keep users moving on a particular path toward monetized sections of services, as opposed to diverting attention away to a different path—one that might involve critical evaluations of infrastructure, business relationships, and policy (see Shade & Shepherd, 2013). Such a political economic revelation would suggest similarities to Herman and Chomsky’s (1988) assertion in Manufacturing Consent that keeping individuals in a “buying mood” (p. 17) is a strategy for maintaining the status quo. Indeed, beyond assessments of the policies themselves, a stronger understanding of the role that interface design features such as clickwraps play in maintaining institutional power structures is essential to unpacking and addressing the consent challenge.

It is argued here that the use of a specific mechanism for achieving a form of implied consent, the clickwrap, is a political economic tactic employed by many operators of social media services to connect users to services, in general, and monetized sections of those services, in particular, as quickly as possible. In so doing, these service providers are encouraging circumvention of consent materials that inform users about their rights and obligations as well as what happens to personal information. Even more, the act of circumvention hides information and opportunities for realizing choice provisions provided by law, as well as opportunities for dissenting or even fighting back against dominant players. This study does not advance this argument through admissions from service providers themselves. Instead, guided by qualitative survey responses from participants about the consent materials common to social media services, coupled with quantitative results from a complementary analysis (Obar & Oeldorf-Hirsch, 2018), this study conducts a political economic assessment of the clickwrap mechanism and its ability to distract and even discourage engagement in consent processes. This assessment begins with a conceptualization of the clickwrap agreement. A reflection on the political economy of clickwraps is presented next, with a specific emphasis on Herman and Chomsky’s concept of the “buying mood.” What follows is a review of the survey methodology and a presentation and discussion of results.

Browsewraps, Shrinkwraps, and Clickwraps

Where implied consent is expected and unchallenged, service providers often make TOS and privacy policies available through links placed at the margins of websites or apps. As long as the link is accessible, use of the service suggests that the user is providing implied consent. This form of agreement is referred to as a “browsewrap agreement” (Kunz et al., 2003). Due to the sensitive nature of personal data collected by social media services, providers often attempt to achieve a more engaged form of implied consent than the browsewrap. The mechanism many social media services employ for this purpose is the “clickwrap” or “clickwrap agreement.”

The clickwrap agreement evolved from the shrinkwrap agreement, which was associated with software TOS that were literally shrinkwrapped to hard copies of software products. Upon opening the plastic and removing the license, usually printed on paper, it was determined that users were providing a form of consent to the terms provided (Kunkel, 2002). As providers began distributing software online, a digital form of shrinkwrap agreement was developed, the clickwrap. Shrinkwrap agreements differ from browsewraps in that the requirement that the plastic be opened might be seen as a user prompt and the act of opening the plastic an act of user engagement. What keeps the shrinkwrap agreement close to the implied consent end of the spectrum is that the act of opening a product is not the same as engaging with a set of policies. To improve upon both the browsewrap and the shrinkwrap agreements, what was needed was a more explicit prompt that presented the policies to the user for their consideration. The clickwrap attempts to prompt users by providing a question about policy agreement, sometimes presenting policies directly on-screen or via a set of links to policies, and thus suggests that the clickwrap operates closer to the informed consent end of the spectrum.

Clickwrap Definition

The clickwrap is a digital prompt that enables the user to provide or withhold their consent to a policy or set of policies by clicking a button, checking a box, or completing some other digitally mediated action suggesting “I agree” or “I don’t agree” (see Figure 2).

Figure 2.

Social media clickwrap examples.

Clickwraps common to current social media are often presented during the signup process. Once signup prompts are completed, including acceptance of the clickwrap, the user is directed beyond the consent process to subsequent introductory sections of the service. In some cases, clickwraps include the text of a policy or policies with the agreement prompt at the end. In this scenario, users would ideally read through the text, scroll to the bottom, and then complete the action of communicating “I agree” or “I don’t agree.” This form of clickwrap, however, is uncommon to current social media services. Instead, social media clickwraps often provide users with a link or links to policies, instead of the policies themselves. Users who click on the links are directed to another section of the service where the policy is hosted.

Table 1 presents some of the characteristics common to social media clickwraps. All of the social media services included in the table, except Google, employ clickwraps with policy links only, meaning that no policy text appears. Google is the exception, which presents an abbreviated version of its TOS with links to the full TOS and the privacy policy. As noted in Figure 2 and in the table, services often combine the signup prompts and the consent prompts on a single page. We refer to this combination as a “quick-join clickwrap.” Google, Tumblr, and Twitter differ slightly, attempting to place additional emphasis on the consent process by separating the initial signup portion from the clickwrap (see Figure 3).

Table 1.

Popular Social Media Clickwrap Characteristics.

	Policy text	Signup/Consent prompts	Policy links	Prominent accept button	Smaller policy links	Links at bottom
Facebook	None	Together	Cookie, data, TOS	Yes	Yes	No
Google+/YouTube	Partial	Separate	Privacy, TOS	Yes	No	No
Instagram	None	Together	TOS, privacy	Yes	No	Yes
LinkedIn	None	Together	Cookie, privacy, user	Yes	Yes	No
Pinterest	None	Together	TOS, privacy	Yes	Yes	Yes
reddit	None	Together	Content, privacy, TOS	Yes	Yes	Yes
Snapchat	None	Together	Privacy, TOS	Yes	Yes	No
Tumblr	None	Separate	TOS	Yes	No	No
Twitter	None	Separate	Cookie, privacy, TOS	Yes	Yes	Yes

TOS: terms of service

Assessed March 2018. Refers to browser clickwraps, except for Snapchat which requires mobile app.

Figure 3.

Tumblr initial signup prompt (left); Tumblr clickwrap (right).

As noted in Table 1, the policy links provided are similar across services, with all services including a TOS link (LinkedIn references a user policy) and most including a link to a privacy policy. There is variation with the other links presented, as some link to a cookie or a content policy. All social media clickwraps noted include prominent accept buttons, often presented with the “AGREE” or “SIGN UP” text centered with a colorful rectangular background to create the button visual. Most present the policy links in a smaller font as compared to the accept button. None present the policy links with a background to create the button visual. Some of the services further reduce the prominence of the links by placing the accept button closer to the middle of the page while presenting the smaller, less colorful links at the bottom. Thus, as users read from top to bottom, they will not only encounter a prominent join button, in some instances, they will encounter the join button first, before reaching the smaller, less-prominent policy links.

The legal literature addressing clickwraps suggests that in combination with the availability of full policies elsewhere on the site or app, clickwraps facilitate an “adhesion contract” (Davis, 2007). An adhesion contract is presented to individuals in a take-it-or-leave it manner (Goodman, 1999). Contracts of this type are designed in this fashion generally because they are presented to masses of individuals wishing to participate in the same service. The result is that any one individual is generally restricted from negotiating for modifications to the contract and must simply answer yes or no (Goodman, 1999). As Goodman (1999) notes, “During the early rise of capitalism, most exchanges took place at arms length. But, as the economy evolved into one in which distribution was more centralized, such contracts of adhesion became prevalent due to their efficient and utilitarian function” (p. 322). The utilitarian approach of employing adhesion contracts when individuals are merely consuming products and services may seem reasonable; however, the shift toward social media prosumption, where the technology is driven by a mosaic of personally identifiable forms of user content generation (Obar & Wildman, 2015), suggests that the shoehorning of social media into traditional consumer regulatory silos via the adhesion contract may be problematic. These concerns are amplified by the draw of network effects and the control of monopoly power which contribute to social and professional exclusion concerns associated with not participating in social media (Beverungen, Böhm, & Land, 2015). As Fuchs (2014) notes,

Audiences are under the ideological control of capitalists who possess control over the means of communication. If for example people stop using Facebook and social networking sites, they may miss certain social contract opportunities. [. . . ] Commercial media coerce individuals to use them. The more monopoly power they possess, the easier it gets to exert this coercion over media consumers and users. (p. 91)

This raises a variety of political economic concerns associated with the ability for users to control their own digital destinies in light of the corporate design and control of social media. In what follows, the extent to which the clickwrap facilitates the circumvention of consent materials for the purpose of advancing corporate interests is discussed.

The Political Economy of Clickwraps

The consent process is a unique opportunity for users to question and engage the power structures controlling their digital destinies. Consent materials, such as TOS and privacy policies, are not only present to be accepted or rejected. They often contain information that can be questioned, and contact information for individuals and institutions that may respond to those questions (Clement & Obar, 2016; Obar & Clement, 2018). Consent materials also often contain references to applicable law, which could clarify user rights as well as the institutional strength supportive of dissention. References to advocacy organizations involved in the protection and promotion of civil liberties are also present in some cases, which might provide users with other venues to voice concern and find assistance. Furthermore, consent materials often provide links to services that might help users and their supporters deliver on their concerns. Common examples include links to services for controlling cookie management, marketing preferences, and even forms of data review and removal. More recently, privacy materials including transparency reports that begin to explain the relationship between service providers and government agencies that make lawful access requests are being provided (Clement & Obar, 2016; Obar & Clement, 2018; Parsons, 2017). Certain providers, especially Internet service providers (ISPs), are even starting to include law enforcement handbooks that offer some information about the methods law enforcement agencies employ to obtain private information. Although recent scholarship advises a measured approach to transparency efforts, especially in terms of the auditability of algorithms (see Ananny & Crawford, 2016; Kroll et al., 2017), notice components are proving to be far more than just adhesion contracts. TOS, privacy policies, and other forms of data privacy transparency can be used by individuals to question the power structures that direct social media experience, and digital destinies emanating from that experience (see Citron & Pasquale, 2014; Pasquale, 2015). As a result, efforts to hide these materials from users, or discourage engagement with them, with the effect of impeding dissent, emphasize similarities to elements of Herman and Chomsky’s (1988) critique of the traditional media industry (broadcasting, film, print, etc.) in the book Manufacturing Consent.

Clickwraps and Manufacturing Consent

The book title draws from Walter Lippmann’s (1922/1977) use of the phrase “manufacture of consent” (p. 158) used to explain how propaganda processes shape public opinion. Lippmann argued that new communication technologies, coupled with psychological research, produced new techniques for manufacturing consent. These techniques shape our opinions, our views of the world, and our behaviors, and present new conceptualizations of self-governance.

Sixty years later, Edward Herman and Noam Chomsky’s (1988) work offered a critique of the corporate media at the time and described how a propaganda model, comprising five filters, shapes the communication technologies that manufacture consent. The five filters (ownership, advertising, sources, flak, and anticommunism) articulate a seminal gatekeeping model, which describes how money and power influence the processes for shaping media content. The inequalities and asymmetries that persist suggest that the powerful define the details and boundaries of the media outlets involved in shaping societal discourse. As the authors note,

(The propaganda model) traces the routes by which money and power are able to filter out the news fit to print, marginalize dissent, and allow the government and dominant private interests to get their messages across to the public. (p. 2)

Most relevant to the current inquiry is a component of the second filter, advertising. Advertisers are powerful because they pay media companies to run advertisements. The threat of losing advertising revenue acts as a catalyst that can shape media processes and choices. In describing the ideal media environment for the presentation of advertisements, one that advertisers likely want media producers to facilitate, Herman and Chomsky (1988) refer to the concept of the “buying mood” (p. 17). They note,

Advertisers will want, more generally, to avoid programs with serious complexities and disturbing controversies that interfere with the “buying mood.” They seek programs that will lightly entertain and thus fit in with the spirit of the primary purpose of program purchases—dissemination of a selling message. (pp. 17–18)

To facilitate this buying mood, the authors explain that media producers alter or avoid content that might promote critical thinking or dissention. This process could be facilitated at multiple points during the processes of production and distribution, ranging from efforts associated with the selection of texts to the shaping of texts (imagery, language, etc.) and even the ordering of texts. Studies of agenda-setting theory often pay particular attention to the impact of these processes on the salience of the texts themselves (McCombs & Shaw, 1972). This particular theory emphasizes that it is not necessarily the content of a text that contributes to its salience, but the prominence bestowed on that text in terms of its ordering in relation to other texts, as well as the length of time devoted to presentation and repetition (Scheufele & Tewksbury, 2007). Ensuring that stories deemed conducive to the strategy maintained by the producers are “above the fold” of the newspaper, at the front of the newscast, or at the top of the website or app, and emphasized in terms of length, size, and repetition, is all central to generating the effect. Conversely, stories deemed less important or incompatible with such a strategy are more difficult to find or are not addressed at all. Herman and Chomsky suggest that by emphasizing content that promotes the buying mood and by de-emphasizing or distracting from content that might promote critical thinking or dissention, media producers keep consumers moving in the structured direction most beneficial to the status quo. As Gamson, Croteau, Hoynes, and Sasson (1992) note, “content should not only create the proper buying mood but should avoid upstaging the advertising content that pays the bill” (p. 378).

While Herman and Chomsky’s discussion of the maintenance of the buying mood identifies well a number of the elements relevant to the current analysis, namely, structural designs that have the potential to drive consumers in a particular direction to maintain the status quo, this articulates a concern fairly common to political economic analyses of communication systems. Assessments from the Frankfurt School and those drawing from these early examples to assess the culture industries often suggest that media products are designed to prioritize capitalist forms of production. One concern is that these products can contribute to “standardized reactions [. . . ] notably its adherents’ fierce aversion to anything different” (Adorno, 1976, p. 29). The desire to engender an automated system of consumption, maintained both by the structure of the media products and by the programmed behaviors of consumers, is a critique presented repeatedly by scholars of communications. That being said, beyond the study of heuristics linked to ignoring behaviors during social media signup (e.g., Böhme & Köpsell, 2010), and suggestions of resignation being associated with a lack of user engagement with digital protections (see Turow et al., 2015), considerable research gaps exist; in particular, research clarifying the extent to which these traditional political economic concerns are associated with consent failures on social media.

In what follows, the extent to which social media clickwraps facilitate similar political economic concerns will be addressed. Data from a qualitative survey addressing participant perceptions of the role of clickwraps in facilitating consent to the policies of social media services will be presented. The aim is to address the extent to which clickwrap agreements aid or hinder the delivery of the informed consent necessary to realize the fundamental protections envisioned for notice privacy policy.

Method

The qualitative data assessed by this study were collected in the fall of 2015 as a part of a related survey (Obar & Oeldorf-Hirsch, 2018), but were not included in the previous analysis. As this study involved human participants and an assessment of their perceptions and use of social media services, ethics approval from institutional review board (IRB)/research ethics board (REB) was sought by the researchers and granted by the universities with which the authors were affiliated at the time of data collection.

Sample

The sample (N = 513)² was recruited from a large undergraduate communication studies course at a public northeastern US university. Course credit was provided for completing the survey, which was hosted on www.qualtrics.com. The demographics of the sample included 47% that identified as female, 45% as male, and 8% that did not identify. The average age of the participants was 19 years. The majority (62%) of those surveyed identified themselves as Caucasian, 15% as Asian, 6% as Black, 2% as Hispanic or Latino/a, 3% as mixed race/ethnicity, 3% as another race/ethnicity, and the remaining 9% did not identify.

Procedure

The section of the survey addressed by this study asked participants to engage with a fictitious social media service called “NameDrop,” with a front page and signup prompts mimicking popular social media services (e.g., LinkedIn or Facebook). We created a fictitious service rather than ask about an existing one so that no participants were familiar with the service and could not have previously interacted with the signup process. Participants were told that their university had entered into an agreement with the startup and that individuals were needed for a “pre-launch evaluation” of the service. During the survey, participants encountered the following text:

Below is an image of a new social networking site called NameDrop—the future of professional networking services!

(University name here) is contributing to a pre-launch evaluation of the site. The site designers would like you to review the layout and function of the site and provide feedback. On the pages that follow, please review the different sections of the site and answer the questions provided. To complete the review you will be signing up for the site and entering some basic personal information. Your account can be deleted after completing the review. Please click through the following pages to complete the review.

Below this text was an image of NameDrop’s front page (see Figure 4). The image was designed to look like an initial signup page for a social media service, with the common quick-join clickwrap format displayed. This included prompts to enter some personal information and then the clickwrap, comprising a very prominent “JOIN” button, followed by the text in small letters: “By clicking join, you agree to abide by our terms of service.”

Figure 4.

Front page of NameDrop.

Due to the limitations of the survey design, participants were unable to fill in the prompts provided on the image and could not actually click the “JOIN” button. Instead, participants were asked to make their consent selection at the bottom of the page. Below the image was the text “Get started, it’s free!” This was followed by two radio button options. The first was the clickwrap option which read, “Sign Up! (By clicking Sign Up, you agree to NameDrop’s privacy policy).” The second read, “Click here to read NameDrop’s privacy policy.” Those who selected the clickwrap option were directed past the privacy policy to NameDrop’s TOS page, which could not be skipped. Those who selected the second option were directed to NameDrop’s privacy policy before seeing the TOS. The privacy and TOS policies could be accepted or rejected.

After completing a variety of other survey questions, whose results appear in the related survey analysis, participants were again presented with the NameDrop front page. Text noted:

Notice the section in the middle of the page where you can fill in your name, email and password. Notice the blue button labeled “JOIN.” Also notice that below the button is a comment about agreeing to Terms of Service.

Two open-ended questions followed: (1) “When you encounter signup prompts like this (name, password, etc.), do you often click ‘JOIN’ without reading Terms of Service? Explain why or why not,” and (2) “Describe your experience with ‘quick join’ signup options like this.” The responses to the qualitative questions were assessed employing a model described by Braun and Clarke (2006) for conducting theoretical thematic analysis. This particular model for thematic analyses is “driven by the researcher’s theoretical or analytic interest” (p. 84) and is helpful in investigating possible links between original qualitative data and established theory. Themes were organized by identifying response patterns about clickwraps and the manufacture of consent.

Results

Three themes identified suggest a problematic relationship between clickwrap agreements and social media consent processes: (1) the clickwrap fails to notify users about the consent process, (2) the clickwrap suggests that the consent process is unimportant, and (3) the clickwrap discourages engagement with the consent process.

Theme 1: The Clickwrap Fails to Notify Users About the Consent Process

The clearest theme to emerge was the suggestion that the clickwrap failed to make participants aware that a consent process was taking place. There appear to be two reasons for this: the prominence of the “JOIN” button, and the comparatively smaller, less prominent, or even hidden policy links. In terms of the former, one participant said the “JOIN” button is “prominent,” while others said the button “is the first thing I see.” By comparison, the links to the privacy and TOS policies are “not emphasized” and “hidden,” the words are “miniscule” and “not noticeable,” and users “don’t even see the text below.”

One participant noted,

I will click join because the terms of service is very small and on the bottom. Its not somewhere that you will see automatically. You have to look for it compared to the “join button” where you can see it clearly, or its one of the first things you see.

Indeed, the small size of the policy links was noted repeatedly. One participant noted, “[I] don’t usually notice the fine print but rather only the word ‘join’,” while another said, “the terms of service button is so small that [I] don’t even notice it.” Another echoed this sentiment, stating, “I usually don’t even notice the small writing,” while another said, “the Terms of Service is in REALLY small font, and the JOIN button is enlarged.” Yet another added that the policy link size “makes it easy to miss.”

Not only does the size and relative prominence of the text impact notification of the consent process, but placement of the text does as well. Referring again to the policy links, participants noted, “sometimes I don’t even see it” and “I don’t see where to find the terms of service,” while others said the link “isn’t very visible” and “I usually do not even notice or ignore the Terms of Service because the words are so minuscule/hidden.” One additional participant was more specific about the placement concern, noting that they often select the clickwrap option “because the ‘JOIN’ button is in the middle of the page and also the center of attention, the terms of service is in the bottom of the page out of the main focal range of the web page.”

One participant noted, “Many times I do not notice this statement and I believe I will be brought to the terms of service following hitting the Join button,” suggesting that even those who arrive at the clickwrap with knowledge of consent processes are susceptible to misdirection. At the same time, those who do not understand the role of consent or consent processes in the social media context find themselves without direction and subject to exploitation. As one participant noted, “I don’t really know what I should be looking for.”

Theme 2: The Clickwrap Suggests That the Consent Process Is Unimportant

Another theme identified in the qualitative data suggests that the presentation of the clickwrap option communicates to participants that the consent process is unimportant. One participant stated this explicitly, suggesting about the policy links, “because the print is so small, [I] assume it’s not important.” Another expanded on this idea, emphasizing that the accept button added an additional layer to this perception, noting, “‘JOIN’ is much more noticeable and I figure that there’s nothing that important in the terms of service.” A number of other participants also suggested that they felt the consent process was unimportant.

While the current analysis is unable to assess the extent to which these perceptions are linked to disengagement in privacy debates generally, the following comments suggest that clickwraps fail to convince individuals of the importance of the consent process, especially while the signup process is taking place. For example, one participant noted, “I never think to look for it or ever think it is that important to read them,” while another said, “I assume there’s nothing important to read that concerns me,” and another said “I feel I do not need to read them.” This perception took on a variety of forms, with some extending their conclusion beyond an individual service, noting, “I feel as if the terms of service for all websites are pretty much the same and not too important.” Indeed, the lack of importance attributed to the consent process fails to convey to participants how this is also a unique opportunity for dissent, evidenced by one participant who noted, “I really don’t have a say. I have to do what they say or I can’t use [the site].” This concern is amplified by feelings of resignation expressed by participants. Instead of feeling as though the consent process is an opportunity to realize fundamental privacy protections, participants wrote about engaging with the clickwrap: “If you are interested in joining you must do it regardless.” The ability of clickwraps to keep users in a fastlane to monetized sections of services, as opposed to diverting attention to dissent possibilities, was epitomized by the comments of one additional participant who noted, “I typically do not see a risk in joining.”

Theme 3: The Clickwrap Discourages Engagement With the Consent Process

Some participants suggested that the prominence of the join button compared to the lack of emphasis placed on the policy links manifests a political economic motive on the part of the social media provider. Participants suggested that this distinction pointed to a clear effort on the part of the service provider to discourage user engagement with the consent process. One participant noted that they don’t feel they need to read policies because the social media service “doesn’t make me go through it.” Furthermore, referring to the policy links compared with the colorful “JOIN” button, one participant articulated specific concerns suggesting that the providers are indeed working to manufacture consent, noting, “they don’t even have a button for their Terms of Service. They keep it private so you don’t think about it.” Another participant said about clickwraps, “They are a way to lead you to think that their website is safe because they may be hiding something.”

The design decision to make a colorful, bold, prominently displayed button for “JOIN,” and only providing a link (in small font) to the policies, sometimes at the bottom of the page, suggests both a hierarchy of importance as well as a possible strategy to direct people away from the consent discussion. This priority is highlighted further by one participant’s comment that “the format of the site makes me eager to join so reading the terms of service seems like a waste of my time.” Indeed, comments like “they keep it private” and “hiding something” suggest that the participants perceive intent on the part of the social media service providers to conceal the consent process from users. Another participant implied a similar intent by noting “reading Terms of Service takes too long and is confusing and usually people don’t read it anyways. And by the looks of it this website knows that and just automatically agrees them to the terms.”

A number of participants suggested a relationship between this discouragement and an ignoring culture, which could suggest what Adorno (1976) once described as the construction of “standardized reactions” (p. 29). One participant noted that they accept clickwraps “because it does not even occur to me to read the terms of service. It has become instinct to just agree without reading them.” Others described the act of skipping policies as a “habit,” and that “it feels like a cultural norm not to read them.” Others noted that “if there is a quick join, I guess I am used to just doing that and not thinking about thoroughly reading the terms of service right away,” and that “I often do this without even realizing it.”

A number of study limitations should be noted. As the study was conducted with undergraduate students from a public northeastern US university, the sample is not representative. It is possible that undergraduates are more likely to prefer clickwraps when compared with other populations, although the scholarship suggests that age may not be a determining factor (e.g., Jensen, Potts, & Jensen, 2005). To be clear, the aim of this study is not to generalize and suggest that different groups view clickwraps as problematic. What is argued is that based on our own interpretation of the clickwrap (i.e., see Table 1), coupled with participant responses from a sample of undergraduates, it appears that the clickwrap is a political economic mechanism for manufacturing consent.

Discussion

As a preface to the discussion of study results, this section begins with the presentation of select findings from the related survey (Obar & Oeldorf-Hirsch, 2018). Upon engaging with the NameDrop consent materials, 74% of participants chose the clickwrap option. This means that 399 of the 543 individuals who took the survey clicked that they agreed to NameDrop’s privacy policy without being taken to the privacy policy page and thus without reading a single word of the policy. It is possible that the use of the university’s name in affiliation with the NameDrop site influenced participants to agree to the privacy policy without reading. That being said, the results of the related survey also revealed that 78% of participants noted that they use clickwrap options often, with 90% noting that they use the clickwrap option “often or sometimes, with the vast majority using them often” (Obar & Oeldorf-Hirsch, 2018, p. 8). It is possible that the clickwrap’s failure to notify some participants about the consent process contributed to the majority ignoring NameDrop’s privacy policy. Furthermore, the comments suggesting that participants use clickwraps often emphasize that this might not have been the first time a clickwrap failed to notify users about consent materials. It should be added that the failure to notify users suggests that social media clickwraps may not be satisfying a common legal requirement whereby services must ensure that a consent process “afforded the user a reasonable opportunity to find and read the terms without much effort” (Bayley, 2009).

These findings support the general assertion advanced by the “biggest lie on the internet” anecdote, namely that it is a common practice, in the US context at least, to ignore consent materials, especially for social media services. This is supported by similar research findings addressing the use of clickwraps for e-commerce sites (Marotta-Wurgler, 2012), as well as in various self-report assessments of engagement with digitally mediated consent materials (Fiesler, Lampe, & Bruckman, 2016; Good, Grossklags, Mulligan, & Konstan, 2007). Beyond the general assertion that ignoring consent materials is common practice, the results suggest that clickwraps may be partly to blame for both facilitating problematic interactions with consent materials in the moment where the user is presented the opportunity to engage and for perpetuating what might be referred to as an ignoring culture associated with consent materials, or as one participant noted, “a cultural norm not to read them.”

This leads to the question, why is this happening? When participants in the related study were asked about their use of clickwrap options, they often provided additional details explaining why. A prominent theme that emerged suggests that users are not very interested in the consent process in general. Many praised the clickwrap option for facilitating “quick,” “simple,” “easy,” and “convenient” access to the social media service. The primary reason for this attitude, identified in the related study, is “the desire to enjoy the ends of digital media production (as quickly as possible), without being inhibited by the means” (Obar & Oeldorf-Hirsch, 2018, p. 10), meaning that users want to enjoy the affordances of the services they are engaging when they download them, not get into a tangential discussion or education about data. Participants made this desire to circumvent consent materials quite clear. One participant said, “my friends use this social media in oder [sic] to catch up with their life i [sic] signup for this as quick as possible,” while another noted, “I’m in a hurry to use the service” (Ibid, p. 10). Indeed, the view that notice equals nuisance was fairly clear, as was the desire to get away from the threat of a tangential buzz-kill, as another participant noted: “its a hassle to deal with a massive amount of boring pages about privacy and security when the site you are joining is there to do something much more interesting” (Ibid).

The three themes identified in this study (clickwraps fail to notify users about the consent process, suggest that consent processes are unimportant, and discourage engagement), coupled with the findings of the related study, suggest that the clickwrap is an effective political economic mechanism social media services can utilize to manufacture consent. Herman and Chomsky (1988) suggest that a central component of their propaganda model, which helps maintain the status quo, is to ensure that the content of a medium keeps consumers moving toward desired ends. In the current context, this might mean social media service providers moving users beyond consent processes as quickly as possible (during signup and when policies change). Being strategic about audience flow, or the path users take, is central to ensuring that consumers are moving not only toward the services themselves but to sections of services that are monetized. As Herman and Chomsky note, providers work “to maintain audience ‘flow’ levels, that is, to keep people watching [. . . ] in order to sustain advertising ratings and revenue” (p. 18). While the authors were talking about keeping people tuned in after commercial breaks and when new shows start, the analogy suggests that social media providers might want to keep the flow moving toward monetized elements of the service, as opposed to losing customers during consent processes. What is different about the application of this political economic lens to the social media context is that while it is possible that these consent processes might discourage users from using services (equivalent to turning off or tuning out the television), a failure to keep people moving beyond consent processes might contribute to something more—users that question data management practices. This is the reason that Herman and Chomsky (1988) emphasize the strategy of avoiding content that brings to mind “serious complexities and disturbing controversies that interfere with the ‘buying mood’” (p. 17). By expediting consent processes and circumventing consent materials, social media services keep users away from information about data management, away from information that might help them engage in choice mechanisms to control data management practices, and away from opportunities for contacting and questioning corporate and legal representatives. By maintaining a “buying mood” or in the social media context, the mindset where consent materials are invisible, irrelevant, or irritating, social media providers maintain the status quo and ensure that users remain within the boundaries of the Internet governance models determined by platforms (DeNardis & Hackl, 2015).

The strategies for accomplishing this task are evidenced by successes achieved by the clickwrap, as articulated by the participants in this study. The prominence of the “JOIN” button and the “hidden” links to the policies demonstrates a classic agenda-setting function produced by the clickwrap. Participants emphasized not only that they didn’t notice the links to the policies but also that the presentation didn’t bring to mind the need to engage. The notion that the relationship between the “JOIN” button and the policy links influences not necessarily what participants think but what they think about (see: Cohen, 1963; McCombs & Shaw, 1972) suggests that clickwrap design choices have a direct connection to the process of maintaining the flow Herman and Chomsky emphasize.

Beyond the agenda-setting function is the point raised by participants that the clickwrap suggests that consent processes are unimportant and may also discourage engagement. While it cannot be asserted that clickwraps are entirely to blame for perpetuating ignoring behavior, especially when the related study identified information overload as a significant negative predictor of whether users read privacy and TOS policies (Obar & Oeldorf-Hirsch, 2018), the possible connection between perceived motives of social media providers and ignoring behaviors is worth exploring. This is not a concern that is unique to consent processes but is a concern that communication scholars are increasingly emphasizing in terms of how social media services demonstrate the latest extensions of capitalist methods of production (see Cohen, 2008; Fuchs, 2014). As Beverungen et al. (2015) write,

Marxist organization studies also understands that managerial labour has two sides, namely a productive side involved in the organization of production, and an unproductive side concerned merely with reproducing capitalist relations of production. [. . . ] By developing protocols for user engagement, which encourages users to produce content and data [. . . ] Facebook employees are managing the free labour of its users in such a ways as to increase the value to be extracted from it. [. . . ]

It is, therefore, not so much a question of discouraging misbehaviour as to encourage user activity that produces the right kind of content and data to be valorized, by prescribing certain kinds of user activity via the user interface and the codes and protocols that ensure its function. (pp. 483–484)

By encouraging a form of user activity, namely, the circumvention of consent materials, utilizing consent circumvention protocols (i.e., the clickwrap), social media services extend traditional strategies associated with the corporate media. As Cohen (2008) notes, these efforts by social media services “can be understood as channeling and structuring online activity to suit the needs of business models” (p. 17).

What remains is the extent to which these efforts contribute to a set of cultural norms and perhaps an effect that is more hegemonic. When members of the Frankfurt School wrote about, as Adorno (1976) noted, “standardized reactions” (p. 29), they were referring to a relationship between structural tactics and cultural norms. The standardized reaction not only serves political economic ends because it keeps the flow moving toward monetization, it also inhibits dissention by keeping consumers experiencing, as Marcuse (1964/1991) once said, “euphoria in unhappiness” (p. 5). This is the reason that Adorno suggests that standardized reactions lead to “its adherents’ fierce aversion to anything different” (Adorno, 1976, p. 29). As noted in the related study, people “desire to enjoy the ends of digital media production without being inhibited by the means” (Obar & Oeldorf-Hirsch, 2018, p. 10). When they are inhibited, engaged in tangential conversation and educations about data management, they are delayed from reaching the anticipated pleasure afforded by social media. Perhaps this is why participants seem to dislike consent processes so much. Aside from not understanding the implications of ignoring policies, the diversion, if it is noticed, seems pointless and most certainly counter to the reason users downloaded the app in the first place.

Walter Lippmann (1922/1977) once wrote, “That the manufacture of consent is capable of great refinements no one, I think, denies. [. . . ] the opportunities for manipulation open to anyone who understands the process are plain enough” (p. 158). More than 60 years later, Herman and Chomsky (1988) added, “(If) the powerful are able to fix the premises of discourse [. . . ] the standard view of how the system works is at serious odds with reality” (p. xi). Indeed, it appears that clickwraps can structure and shape discursive opportunities associated with social media consent processes. The extent to which the operators of social media services are purposefully engaging in this form of manipulation remains unclear. What is clear is that as a political economic mechanism, the clickwrap benefits corporate interests motivated to maintain the status quo while failing to deliver digital privacy and reputation protections associated with meaningful engagement in consent processes.

Footnotes

Acknowledgements

Our sincerest thanks to Valeta Wensloff for your work on the NameDrop image, and to Afifah Khawaja for contributing research assistance.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biographies

Jonathan A. Obar (PhD, The Pennsylvania State University) is an assistant professor in the Department of Communication Studies at York University. His research focuses on information and communication policy and the relationship between digital technologies, civil liberties, and the inclusiveness of public culture.

Anne Oeldorf-Hirsch (PhD, The Pennsylvania State University) is an assistant professor in the Department of Communication at University of Connecticut. Her research focuses on information sharing as a form of communication in online social networks, with a specific emphasis on the features of communication technology that alter communication norms. Specifically, her work investigates the effects of social media activities such as news discussion, content sharing, and self-disclosure on outcomes such as engagement, learning, and well-being.

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The Clickwrap: A Political Economic Mechanism for Manufacturing Consent on Social Media

Abstract

Keywords

Browsewraps, Shrinkwraps, and Clickwraps

Clickwrap Definition

The Political Economy of Clickwraps

Clickwraps and Manufacturing Consent

Method

Sample

Procedure

Results

Theme 1: The Clickwrap Fails to Notify Users About the Consent Process

Theme 2: The Clickwrap Suggests That the Consent Process Is Unimportant

Theme 3: The Clickwrap Discourages Engagement With the Consent Process

Discussion

Footnotes

Acknowledgements

Declaration of Conflicting Interests

Funding

Notes

Author Biographies

References