Good2Go? Good and Gone? Why an Affirmative Consent App Is a Risky Proposition

Posted in: Consumer Law

In the past year, there has been a growing focus on the high incident of rape and sexual assault on U.S. campuses. In response to this, several parents with kids in college have developed an “affirmative consent” app known as Good2Go. This first-of-its-kind sexual consent app is designed to help students and young adults navigate the world of sexual relations and to teach them more than “no means no” This new app requires users to seek affirmative consent from their partners. In other words, that only a positive “yes means yes.”

Rather than verbal communication, Good2Go is meant to help potential partners to actually answer a series of questions and to document their affirmative consent via smartphone. The app also asks users to divulge their level of intoxication or sobriety via a self-assessment. As I will discuss below, the app, which was pulled from the Apple iTunes Store in early October, is a rather blunt instrument that raises concerns—both in terms of its evidentiary value as well as about the type of data that the app will collect and have stored.

How Does Good2Go Work?

Good2Go is a new smartphone app that encourages users to give consent before engaging in any sexual acts. The app targets college-aged adults. The Good2Go website, in fact, seeks out campus “ambassadors” to spread the word about Good2Go and the principle of affirmative consent. The apps creators, a group of parents, working via Sandton Technologies, hope it will prevent unwanted sexual conduct by facilitating a step-by-step process to ensure both parties are on the same page.

Lee Ann Allman, president of Sandton Technologies has stated that the purpose of the app was and is to teach young people “the language of affirmative consent.” The Good2Go website also explains that “We believe the proper use of Good2Go as a tool in understanding the role intoxication plays as well as teaching the language of affirmative consent will result in fewer sexual assaults.”

With Good2Go, potential partners are meant to use their phones to secure affirmative consent before they hook up. This is about taking a moment before beginning any encounter to make sure both parties are in agreement. New users, of course, needed to register—which meant giving the app a name, phone number and a password. The new user would then log the code that had just been sent to that number. Otherwise, an existing user simply logged into his or her account. Once this is done, Good2Go could log all of a user’s attempted sexual liaisons.

The app, when deployed, focused on two things: (i) is a person ready to have sexual relations with another person and (2) whether the person is intoxicated and thus unable to consent.

“Good2Go should be treated in the same manner as putting on a condom,” the website explained. “It may stop the action for a second, but everyone understands it is in the interest of safety, so it is worth the momentary pause.”

The free app worked as follows: After one party feels amorous, with a potential partner, one of the people involved launches the Good2Go app on his or her phone.

When it is opened, the app displayed the question, “Are we Good2Go?” The other party then selected one of three options. “No thanks,” “Yes, but . . . we need to talk” or “I’m Good2Go.”

If the person being propositioned selected “No”, a screen popped up for the other party that says, “Remember! No means No! Only Yes means Yes, BUT can be changed to NO at any time!”

The second choice of needing to talk paused the app and leads to a discussion prompt so the pair can have their discussion before a final decision is made.

The third option prompted the parties to answer, honestly, whether they are “sober,” “mildly intoxicated,” “intoxicated but Good2Go” or “pretty wasted.” Surprisingly, it is only if a person checked “pretty wasted” that the app shut down and blocks the user from consenting via his or her phone. But if you said you were intoxicated, you could still proceed to consent.

The New Paradigm of Affirmative Consent

In prior discussions of whether someone consented to sexual relations, students learned that no means no, but advocates have been focusing on the need to educate college students that they should seek a real “yes” from a potential partner. This is known as seeking “affirmative consent—getting to yes—and not assuming that because a person did not speak up, that they consented through silence or inaction.

In September 2014, California Governor Jerry Brown signed into law a bill that requires universities in the state to adopt an “affirmative consent” standard to be used when investigating sexual assault complaints on California college campuses.

California is the first state to make affirmative consent the law. Senate Bill 967 amends the California education code to require higher education institutions whose students receive financial aid to uphold an affirmative consent standard in disciplinary hearings and to educate students about the standard. This means that during an investigation of an alleged sexual assault, student disciplinary committees at both public and private institutions will have to ask whether the sexual encounter met a standard where both parties were consenting. Consent is defined as “an affirmative, conscious and voluntary agreement to engage in sexual activity.”

While the California law has its detractors, it is now the law. And it has brought the issue of affirmative consent into the public forum. The Good2Go app dovetails with this initiative and focuses on “getting to yes” by using a Smartphone app.

Evidentiary Issues

Good2Go is meant to be an educational tool—teaching young adults to seek permission and consent before engaging in sexual activity. But it is an app that is used at the beginning of an encounter; it did not ask users to specify what exactly each party is consenting to. That question is left open, so the app only goes so far in terms of protecting both parties.

It is also unclear whether this type of “consent” could be used legally as proof of consent. One can imagine many problematic scenarios where consent is obtained under duress or coercion, or where people are lying about their own state of intoxication.

Parties have to self-select their level of intoxication, but one person’s intoxication could be another person’s completely wasted. Asking parties to describe their state of inebriation should not be seen as determinative of facts, as people may check one category or another to avoid embarrassment, to prevent being blocked from consenting, etc. And what happens if your potential partners are actually looking over your shoulder as you click to consent—or worse—takes your phone and consents for you. So the future use of the app and the significance of the “consent” obtained are yet unclear, and it raises many unanswered questions.

One would hope that the Good2Go app would not be used as evidence of affirmative consent in university disciplinary proceedings, for example. What if a person clicked “yes” and indicated they were mildly intoxicated—but in fact had been impaired. Would this be concrete and irrefutable evidence of consent?

There are many concerns around the nature of consent via a mobile pap. As noted above, it is a crude instrument—clicking “I agree” like ordering goods or services online may or may not be a good substitute for actual conversation about consent and the limits of a person’s consent.

Privacy Concerns

The second area of concern relates to privacy. Good2Go, as initially offered, was set u to amass a huge amount of sensitive data about individuals and their sexual histories. The Washington Post discussed these concerns in a recent article. The data included a listing of all of your partners to when you have had sexual relations and your reported state of sobriety or intoxication. This is highly sensitive information and it would all be in the hands of a third party.

According to its own terms of use, Good2Go logged personally identifiable information, including names and phone numbers, on all its users. When two people use the app to connect, it records the users’ phone numbers, as well as the time of the encounter and one partner’s sobriety. (Because Good2Go requires you to register with a name and phone number, that number is also tied to your provided name.) Per its loose privacy policy, Good2Go could share that information with law enforcement, “third-party service providers” and other marketing firms “for any reason, in Good2Go’s sole discretion.”

The Good2Go app was free, which left the question as to how Sandton was going to earn revenue to continue operating the service and improving its design. One could imagine that Good2Go might share information with potential advertisers of condoms, birth control, or other services aimed at a young sexually active crowd. Recent revelations of how hackers have been able to obtain nude or explicit photos of celebrities remind us that this sensitive data may not be secure. It could be leaked to embarrass or humiliate young adults—whether famous or not, or worse possibly—for forms of extortion.

This doesn’t just mean that your data is only vulnerable to hackers. Your personal files could be transferred to another company if Good2Go is acquired, be subpoenaed in a civil lawsuit (e.g. a divorce proceeding) or criminal case, or be sold off to a third party entirely.

“To be clear, it is not our policy to disclose these records to just anyone,” Lee Ann Allman, the president of Good2Go and its parent company, Sandton Technologies told the Post. She noted “Good2Go/Sandton Technologies would need to be presented with an official, legal request via law enforcement or a specific university before we would disclose these records.”

As for marketers, she added the company doesn’t currently share records with them, because the app’s “initial focus is to drive adoption . . . and the concept of affirmative consent on college campuses.” But Good2Go is in its infancy—once the data is collected, its unclear what happens if the company needs a profitable business model.

So beyond the fact that the app itself is a poor proxy for face-to-face communication, users should think twice before giving up their sexual history to an app developer and potentially to marketers and others.

Good2Go has promised it will release Version 2.0 of its app and hopes to do so as a crowd sourced product. Let’s hope that its creators throw their money and ambition behind other ways to deal with the real problem of sexual assault.

Posted in: Consumer Law, Technology Law

Tags: Legal

One response to “Good2Go? Good and Gone? Why an Affirmative Consent App Is a Risky Proposition”

  1. Jonno Wade says:

    And what would stop one party from taking an intoxicated person’s phone and mearly clicking yes for them? I doubt it would hold up in court, but undoubtbly the defense would use that as a case of someone that changed their mind after to attempt to instill doubt.