Actually no, we don’t want an app for that, techbros
Comment “Don’t ruin the moment. Asking to sign a contract to have sex can be awkward.”
Of course the simple answer here should be, you’re right – I won’t. I’ll have a respectful conversation with my partner, and if at any point they say no, we’ll stop.
But it’s 2018 now, so obviously that’s not what happens next. Instead we get techbros making a consent app with some blockchain thrown in for good measure.
“Sex should be fun and safe, but nowadays a lot of things can go wrong,” says the blurb about LegalFling, an app that promises users a “legally binding agreement” before they get it on.
The app comes from LegalThings, a startup selling online contract tech, and founder Arnold Daniels said the aim was to allow people to specify the things they do and don’t want, to avoid any misunderstandings down the line.
How does it work? Well, it’s your classic love story, really. Boy meets girl, girl fancies boy, boy whips out phone and pings a consent request to girl via a message, girl sets preferences. These might be “use condom”, “STD free” or agreeing to taking kinky photos or videos.
Once you’re all clicked out, the happy couple can get into the good stuff – assuming they’re still in the mood.
Predictably, the app was developed by an all-male dev squad, although Daniels did say there were some women on the firm’s legal team.
Even more predictably, it’s gone down like a tonne of bricks with lawyers, sex tech experts and academics alike, who have accused the creators of fundamentally failing to understand how consent works in the real world*.
It’s also been called out for shamelessly piggy-backing on the #MeToo movement, where many women have spoken openly about harassment, enduring no end of abuse online for it.
“Consent is an ongoing, constructive process. Not a one-time fire-and-forget thing,” said sextech hacker Sarah Jamie Lewis.
“I will stretch and say that there maybe some benefit in explicitly negotiating usage restrictions when it comes to photos and videos, but, [LegalFling’s] copy is focused on sexual consent, even referencing #metoo.”
Bernie Hogan, of the Oxford Internet Institute, was less kind. “It’s based on a flawed notion of consent; that it’s something that can be done in the absence of context. It’s a ridiculous idea that’s doomed to failure.”
Kate Devlin, a Goldsmiths academic who works on sextech, agreed, saying that the app played into the idea that men had to “protect themselves”, and failed to grasp the nuances involved in real-life consensual sex.
For his part, Daniels admitted that it was a “difficult subject”, but argued that although good sexual behaviour “should be common decency, really [the app]seems to be necessary”.
He added that they were listening to feedback ahead of a planned launch on app stores in a couple of weeks.
Withdrawing – made difficult
One of the major issues is revoking consent. As every adult knows, everyone is entitled to change their mind.
But with an app that records consent, things might get a bit more complicated.
“An app like this in that context is potentially very harmful to victims and may contribute to them being silenced, especially in cases where non-consensual actions happen after consenting within the app, because then there is ‘evidence’ a victim consented,” said Lewis.
The developers clearly saw this coming, with an FAQ on the site reading “Can I still change my mind?”
Since we’re not yet in a world where a startup gets to tell you you have to carry on having sex with someone, or where clicking a slider on an app requires you to have sex with someone at any point in the future, the answer is, of course, “absolutely”.
“No” means “no” at any time. Being passed out means “no” at any time. This is explicitly described in the agreement. Additionally you can withdraw consent going forward through the LegalFling app with a single click.
‘Inconsistent with reality’
Even putting the issue of consent aside, it’s hard to see how using the app would even work in real life.
“LegalFling presents itself as an alternative to ‘a 10 page document full of legal lingo’,” said Neil Brown, lawyer for decoded:Legal.
“I don’t know about you, but even as a lawyer, I rarely insist on multi-page written agreements before having sex.
“Similarly, while the app does allow consent to be revoked, this approach seems inconsistent with reality, where consent is an ongoing communication (verbal or otherwise) between participants.”
Daniels, though, told The Reg that the app came about because of proposals in Sweden for a law that will put the burden of proof on the accused to prove that there was explicit consent.
But the idea that it really is legally binding is undermined by the FAQ, which reads: “Just remember, the app is about setting clear rules and boundries, not breaking them. To which extend [sic] the contract holds up in court, depends on your country of residence.”
Brown observed that, in his view, “they are right to be sceptical”.
Of course, some of this discussion is academic: the startup is likely trying to sell its skills in blockchain for legal documents.
In the LegalFling app, the transaction hash is stored and timestamped in the blockchain. Daniels said that the agreement works like a non-disclosure agreement for photos, and parties can indicate a clause has been breached or even “send cease-and-desist letters” from the app.
Hogan acknowledged that the idea of using blockchain to protect nudes might work, but that – if the app was cynical promotion – the PR move might backfire, given that the team appeared “completely oblivious” and insensitive to current dynamics of consent and gender politics.
And it’s unlikely that a tech firm will solve the underlying problem around consent – as Lewis notes, “that’s a societal problem that can’t be fixed with an app”. ®
*Those who are confused can consult this helpful guide: