Children, Vulnerable Groups, and High-Dependency Contexts

Capacity, freedom to refuse, dependency, recovery resources, cumulative exposure. That is five questions, and a consent form answers only the first of them. The other four are settled by what refusal costs.

A US regulator has demanded exactly that arithmetic on the record since 1978. Before an institutional review board may approve research inside a prison, it has to weigh what the study offers against what the prison already offers — general living conditions, medical care, quality of food, amenities, opportunity for earnings. If the advantages are so large that the prisoner can no longer weigh the risks “in the limited choice environment of the prison”, the board may not approve it. Nothing in that test looks at the signature.

Formal consent records an agreement. Protective design removes the need to rely on one. Proxy decision making hands the choice to somebody else entirely. The last two are not abstractions to be designed from scratch. Both already exist in enforceable text, and the text is where to read what they require.

Protective design has a worked instrument. The UK's Age Appropriate Design Code came into force on 2 September 2020, with a 12-month transition. It is a statutory code: the Data Protection Act 2018 obliged the Information Commissioner to write it, and to have regard to the UK's obligations under the UN Convention on the Rights of the Child. It sets 15 standards. High-privacy settings by default. Data minimisation. Geolocation off by default. No nudge techniques that weaken privacy settings. Not one of them asks a child to agree to anything. The Commissioner's foreword states the ambition plainly: “This statutory code of practice looks to change that, not by seeking to protect children from the digital world, but by protecting them within it.”

Proxy decision making has a working legal model too, and it is not a transfer of the decision but a split of it. The US rules for research with children, in force since 1983, keep two agreements apart. The guardian's agreement is called permission. The child's own agreement is called assent, and the definition guards it: “Assent means a child's affirmative agreement to participate in research. Mere failure to object should not, absent affirmative agreement, be construed as assent.” Silence is explicitly not counted. The review board judges capacity to assent from the ages, maturity and psychological state of the children involved. Assent may be dispensed with in two cases only: where capability is so limited that the children cannot reasonably be consulted, or where the research holds out a direct benefit important to their health and available only in that research.

The Michigan Unemployment Insurance Agency ran an automated fraud-detection system called MiDAS. Claimants alleged that it disqualified them, assessed penalties, and garnished wages and tax refunds without meaningful notice or an opportunity to be heard. Grant Bauserman, the named plaintiff, was told he owed USD 19,910 on benefits collected between September 2013 and March 2014.

The case reached the Michigan Supreme Court as Bauserman v Unemployment Insurance Agency. On 26 July 2022 it held for the first time that monetary damages are available to remedy a violation of the Michigan Constitution: “Although we have never specifically held that monetary damages are available to remedy constitutional torts, we now hold that they are.” The class action then settled for USD 20 million, covering roughly 3,000 wrongly accused claimants. The Michigan Court of Claims approved the settlement in late January 2024.

Read the dates in order. Benefits collected from September 2013. A Supreme Court decision on 26 July 2022. Settlement approval in late January 2024. The recovery-resources question stops being abstract. Money was taken first, and the right to sue for it was established afterwards. That is the cost of a remedy whose only route runs back through the institution that made the decision.

The shelter now under review is the same shape one step earlier. It introduces an AI case-management assistant that recommends services. Residents depend on the shelter for housing, and fear that refusing data collection could affect their place, even though the consent form says participation is optional.

Vulnerability is contextual rather than an inherent label. It can arise from age, dependency, coercion, unequal information, limited resources, legal status, disability, crisis, or simply being unable to leave and seek remedy. Dependency is the one that survives a consent form. Shelter residents sign willingly and still cannot refuse.

That is not a novel ethical claim. It has been binding US regulation since 16 November 1978, when the prisoner safeguards were added to the federal human-subjects rules. The purpose section gives the reasoning in one sentence: “Inasmuch as prisoners may be under constraints because of their incarceration which could affect their ability to make a truly voluntary and uncoerced decision whether or not to participate as subjects in research, it is the purpose of this subpart to provide additional safeguards for the protection of prisoners involved in activities to which this subpart is applicable.” Notice what the safeguards that follow are not: a better consent form. They alter the conditions around the choice. The review board must have assurance that parole boards will not take participation into account, and that each prisoner is told so in advance. The cost of refusing is removed, not merely disclosed.

Higher dependency calls for stronger necessity tests, narrower data use, independent advocacy, and communication that is age-appropriate or otherwise accessible. It calls for conservative automation, monitoring for coercion, and remedies that do not depend on institutional goodwill.

Independent advocacy is the item an institution cannot provide to itself. That is why it is usually the one missing when a decline button is the only protection on offer.

Dependency gets identified before voluntariness is tested. What refusal costs a person is what decides whether their agreement means anything.

Step three is where the review either bites or drifts. It is worth seeing what an enforcer actually orders there. On 19 December 2022 the FTC announced two record settlements with Epic Games totalling USD 520 million. USD 275 million of that was a civil penalty for COPPA Rule violations — the largest penalty ever obtained for violating an FTC rule — under a federal court order filed by the Department of Justice. A separate USD 245 million administrative order covered dark patterns.

The conduct at issue was a default. The FTC alleged that Epic enabled live voice and text communications for children and teens by default, and that its own employees had urged an opt-in default as early as 2017. The FTC's chair, Lina M. Khan, put the case this way: “As our complaints note, Epic used privacy-invasive default settings and deceptive interfaces that tricked Fortnite users, including teenagers and children.”

So was the remedy. The orders require heightened privacy defaults: voice and text communications stay off unless parents, for users under 13, or teen users affirmatively opt in through a privacy setting. The remedy changed what the system does on its own. It did not ask for a clearer consent screen.

Vulnerability here is a relationship with an institution rather than a property of a person. The same system can create it in one setting and not in another. Wolfsen's sentence is the test in its plainest form: people depend on the Belastingdienst, and cannot take their benefits or their tax return somewhere else. Where a person can go elsewhere, a signature may carry some weight. Where they cannot, the protection has to hold without one.

That is how the prisoner rules were written in 1978. It is why the Age Appropriate Design Code sets 15 standards instead of asking a child to agree, and why the FTC's orders of 19 December 2022 changed a default rather than a disclosure.

Define when governance for vulnerable and dependent populations requires the team to redesign, restrict, remedy, or retire the system.