Implied consent is a form of consent that is inferred from the actions or inactions of the data subject, rather than explicitly expressed by the data subject1.
Implied consent is generally considered a valid basis for processing personal data under certain circumstances, such as when the processing is necessary for the performance of a contract, the legitimate interests of the data controller, or the reasonable expectations of the data subject2.
However, implied consent may not be sufficient for processing sensitive personal data, such as health, biometric, or genetic data, or for sending marketing communications, depending on the applicable laws and regulations2.
In the U.S., there is no comprehensive federal privacy law that regulates the use of implied consent for data processing, but there are sector-specific laws and state laws that may impose different requirements and limitations3.
Based on the scenarios given in the question, the situation that is most likely to involve a company operating under the assumption of implied consent is A. An employer contacts the professional references provided on an applicant’s resume.
This is because the employer may reasonably infer that the applicant has consented to the contact of the references by voluntarily providing their information on the resume, and that the contact is necessary for the legitimate interest of the employer to verify the applicant’s qualifications and suitability for the job4.
The other situations may not involve implied consent, but rather require explicit consent or provide opt-out options for the data subjects, depending on the type and purpose of the data processing and the relevant laws and regulations5 . For example:
B. An online retailer subscribes new customers to an e-mail list by default. This may violate the CAN-SPAM Act, which requires online marketers to obtain affirmative consent from the recipients before sending commercial e-mail messages, and to provide a clear and conspicuous opt-out mechanism in every message5.
C. A landlord uses the information on a completed rental application to run a credit report. This may violate the Fair Credit Reporting Act, which requires landlords to obtain written authorization from the applicants before obtaining their consumer reports, and to provide them with a copy of the report and a summary of their rights if they take any adverse action based on the report.
D. A retail clerk asks a customer to provide a zip code at the check-out counter. This may violate the California Song-Beverly Credit Card Act, which prohibits retailers from requesting and recording personal identification information from customers who pay with a credit card, unless the information is necessary for a special purpose, such as shipping or fraud prevention.
References: 1: Implied Consent 2: Consent 3: U.S. Private-Sector Privacy (CIPP/US) 4: [Reference Checks: Tips for Job Applicants and Employers] 5: [CAN-SPAM Act: A Compliance Guide for Business] : [Using Consumer Reports: What Landlords Need to Know] : [California Song-Beverly Credit Card Act] : [Reference Checks: Tips for Job Applicants and Employers] : [CAN-SPAM Act: A Compliance Guide for Business] : [Using Consumer Reports: What Landlords Need to Know] : [California Song-Beverly Credit Card Act]
