Utilitarian ethics are broadly defined as ethics that produce outcomes which benefit the greatest number of people.
Aristotle talked about the outcome in terms of happiness or eudaimonia but that subsequently begs the philosophical question, what is happiness? For Aristotle, it was about fulfilling one’s potential as a rational and virtuous being, leading a life of moral excellence and balanced action.
In the world of digital analytics we can be a bit more modest in our ambitions; I think we should consider utilitarian ethics in the context of all relevant stakeholders and maximising the best possible outcome for them.
If we look at the implementation of consent management platforms as a case in point, the list of stakeholders might comprise the following:
QA Team
UX/UI Team
Compliance Team
Security Team
Technology Team
Project Manager
Legal Team
Analytics Team
Marketing Team
Website Users
Third-Party App Providers
Data Protection Authorities
Business leadership team
Clearly there are quite a few, leading to the entirely reasonable question - how is it possible to satisfy the needs of so many groups in a mutually beneficial way?
Ethical pluralism
This is where the concept of ethical pluralism fits in. I’ve written more about that here, but in summary ethical pluralism holds that two or more diverging ethical positions can be retained at the same time. Transparency is an important part of the ethical framework; gathering input from all the above stakeholders is part of ensuring transparency. But when they are surfaced, the needs of such a diverse set of stakeholders might be at odds with one another while being equally valid, thereby leading to issues of ethical pluralism.
For example: website users have a right to determine what data is collected about them and to be able to control the collection of that data in an easy to understand way. On the other side, the marketing and analytics teams in a business need that data to make informed decisions. The business leadership team needs to be able to make better decisions in order to remain competitive in the marketplace and keep the business growing in a way that enables it to pay salaries to its employees so they can subsequently pay their mortgages and buy food for their families. There is an issue of ethical pluralism represented in the needs of the website visitors and the needs of the business and its employees. Both are equally valid yet both are at odds with each other.
As such, in data ethics there is no room for zero sum thinking or personal dogmas as might be espoused within the virtue based ethical framework.
For example, saying outright that you will not work with xyz unless they adhere to your ethical standards, or at least that their actions vibe with your personal ethics on a given matter, is arguably an unethical and possibly antithetical stance to take. I have written more about that here. Indeed, to turn our backs and do nothing is an abdication of responsibility and as such an arguably unethical action in itself. As functionaries in the digital realm, we are well placed to at least state a case.
To borrow from an increasingly familiar hypothetical, if a self driving car is careering towards a set of traffic lights where people are crossing the road, the driver might have two options:
Do not intervene and allow the car to keep going, hit and risk killing a brilliant surgeon who, had s/he lived, might have gone on to save countless lives.
Intervene, make the car swerve, hit and risk killing both a heavily pregnant woman and her 2 year old child who she is pushing in a pram. Likewise, the unborn child and the 2 yr old might have grown up to deliver enormous value to humanity.
To turn one's back on the decision in the face of such circumstances, citing the car’s autonomous systems as the final arbiter would be an abdication of responsibility and serve no purpose other than possibly that of the car’s occupants.
Ethics require a malleable approach to problem solving and one that accepts there might not be a perfect solution.
Consent Management Platforms
So, when thinking about CMPs, in the eyes of many the end user’s privacy may be somewhere near the top of the list of priorities, but what about the needs of the business and its employees? As (digital) analysts, “technical marketeers”, data scientists, etc, there is an opportunity to make a difference. Doing nothing and avoiding the decision making process for the sake of one’s own ethical dogma is arguably unethical. If we decide not to engage then it should be under the banner of some other explanation rather than one’s personal ethics. That is not to denigrate virtue ethics, only to suggest that in the context of withdrawing our professional engagement in the process of configuring and managing user consent, it is better to be in the game and at least trying to make a difference rather than standing on the touchline with our backs to the game. Of course if it is the case that, regardless of our intentions, we are simply not in a position to make any meaningful impact within an organisation, then this is a different scenario and one in which it would be reasonable to abstain on the basis of our own personal ethics.
However, even if not the final decision maker, everybody has a duty to act for the common good. Aristotle's view was that politicians should study ethics so that they understood the importance of working for the public good rather than their own ends. Likewise, gathering stakeholder requirements should be done with the aim of serving as many of them as possible while minimising the risk of favouring a few. Even if that means initially working for an organisation which may not have implemented a CMP in the best interests of the website visitor; by engaging with such organisations, there remains the opportunity to work on, and improve the the way in which their CMP has been configured so that the CMP is configured according to a more utilitarian ethic, i.e. a rebalancing of the needs of all stakeholders.
Serving stakeholder requirements needs to be achieved in the context of the law, the rights of the website's visitors, and the needs of the business. But remember, adherence to the letter of the law is not the same as ethical compliance or the spirit of the law. For example, collecting data using the method of fingerprinting may (at the time of writing this) mean that websites have divested themselves from the use of cookies, and as such circumvented the need to even use a consent management platform which are generally used to give users control over which cookies are set, but the practice of fingerprinting is particularly insidious because users often don’t know that they are being profiled.
Google’s Consent Mode. For the purists “No” means “No” and Consent Mode is arguably in violation of that principle which possibly contravenes the user’s rights in the context of the Rights Based ethical framework and the Ethics of care framework. However, as mentioned already, the business and those working for it also have rights which should not be ignored, so the question arises, could the implementation of Consent Mode be an imperfect fix to an issue of ethical pluralism?
Dealing with data in our industry is a serious business. The law is not ethics and ethics are not the law. But a structured ethical approach to managing data collection, storage and processing can ensure that we deliver the best outcomes for as many stakeholders as possible.
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