As any self-respecting fan of “the Big Bang Theory” knows, Schrodinger’s Cat is a thought experiment devised in the 1930’s by physicist Erwin Schrodinger that hypothesizes a cat in a sealed box that also contains a poison that at some unknown time, may (or may not) be released to the cat. When or if the poison is released the cat dies. If the poison isn’t released, the cat remains alive. The hypothesis states that since the state of the cat is unknown while the box is sealed, the cat is simultaneously dead and alive. Only when the box is opened is the state of the cat known.
Due to recent court rulings (Soppet v. Enhanced Recovery Company LLC, 679 F.3d 637, 643 [7th Circuit, 2012] and Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265 [11th Circuit, 2014]) I would like to propose a new thought experiment called “Schrodinger’s Consent”. In this experiment a consumer (Consumer A) requests that their bank send account alerts and notifications to them via text. (I suspect that most of you reading this have signed up for such a service; if not from your bank, perhaps from your healthcare provider, an airline or your local prescription retailer.) The next action in this experiment is for the consumer to change their phone number and, here is the key: not tell anyone. A few weeks to a few months later their phone number may be re-assigned to some other consumer (Consumer B). For this experiment, let’s imagine now that the bank detects an event related to Consumer A’s account and sends them a text warning, but through no fault of the bank, the message ends up being sent to Consumer B, the new subscriber of Consumer A’s previous phone number.
As in Schrodinger’s original experiment where the state of the cat is unknown until the box is opened, In Schrodinger’s Consent, the validity of the consent the bank has collected is unknown until after the text is sent, and only then is consent, or a lack thereof, detected by the presence or absence of complaints, class actions or lawsuits. That is not a very pleasant or efficient means of detecting consent validity. More importantly to the bank, it can be a very expensive gamble.
-Maybe Consumer A still owns the phone number in which case the consent is still valid.
-Maybe the phone number isn’t assigned to anyone anymore in which case the consent is immaterial.
-Maybe Consumer B owns the phone number in which case the consent is no longer valid.
The problem for the bank is that they don’t know who owns the phone when they send the phone a message and so are in possession of a consent which may or may not be valid. In the ruling against Wells Fargo Bank the 11th Circuit Court said the bank’s collection of consent was insufficient because they had not collected consent from the current subscriber only from the “intended subscriber”. The fact that the bank had no idea that the number had been recycled wasn’t enough for them to win the case which once more codifies the age-old adage that ignorance is no excuse.
These rulings help demonstrate the value of being able to verify the identity of a subscriber of a given phone number. The court in the Breslow case mistakenly believed that the only alternative for Wells Fargo was to manually dial the phone numbers and ask the person who answered the phone for their name and address. (My opinion is that doing so could be perceived as kind of a creepy thing to do.) PacificEast and our real-time division, IDICIA, recently launched a new version of our Telified services specifically to help those with presumed consent see through the opaqueness of Schrodinger’s Consent and re-verify that the consent they went through much effort to collect is still valid. If you would like more details on the new service, Telified CR (the CR stands for consent re-verification) please download a more detailed description from our website.