Digital technologies have brought consumers many benefits, including new products and services, yet at the same time, these technologies offer affordances that alter the balance of power among companies and consumers. Technology makes it easier to deny consumers access to the courts; to restrict well-established customs and rights, such as fair use and the reselling of goods; to manipulate digital fora that provide reviews of products and services; to retaliate against and/or monitor or even extort consumers who criticize them; to engage in differential pricing; to “brick” or turn off devices remotely, to cause systemic insecurity by failing to patch products; and to impose transaction costs in order to shape consumer behavior.
Fundamentally, the move to digital turns many products into services. While the law has long comprehensively regulated products under the Uniform Commercial Code and products liability regimes, artifacts and services with embedded software present new challenges. European governments are moving aggressively to establish comprehensive regulations for digital goods. But no such agenda is on the horizon in the United States.
Problem Based Learning
This course will employ a problem-based learning method (PBL). Based on cognitive and learning theories, the main principle of PBL is to present students with real-world tasks that mimic the experiences they will have in their professional careers. Throughout the seminar, students will develop learning objectives (LOs) to deepen their understanding of relevant aspects of each issue. For each issue, students will prepare an LO report. LO reports are brief (2-4 pages), informal (formal citations are not required but a reference list should be included) explorations of the selected issue. The emphasis for these reports is content over form. By studying the smallest researchable sub issues of the course, we will develop a high level conception of consumer protection and its goals. We will then explore its fit in the digital realm. Some of the high-level questions we could probe include:
-What are the highest-level principles (e.g. competition, fairness, power balance, interoperability) that should guide digital consumer protection efforts?
-On a highest level, what are the sources, contours, and protections offered by of existing consumer law in the U.S.? Are these existing approaches adaptable to the digital world?
-Software-embedded products make it possible to have a continuous transaction with the consumer. How will the interests of the consumer and the business diverge over time?
-What do consumers expect and hope to expect of products in the digital marketplace?
-What new problems will arise from digital products? Are these problems really novel or simply different articulations of offline problems?
-What case studies could elucidate the contours of the benefits and challenges of the digital marketplace?
-Existing consumer laws emphasize the most important purchases in life—homes, cars, financial services. What will be the most important consumer purchases in a digital economy?
-What can be learned from previous incidents of failure or manipulation from software-embedded systems, such as the Therac-25, e-voting machines, the Three Mile Island accident, and the Volkswagen emissions scandal?
-Consumer advocates are effective when they can make anecdotes of problems readily available. What are the anecdotes that crisply capture problems in the digital marketplace?
-How is consumer protection in alignment or misalignment with other important public policy goals, such as environmental protection?
-To what extent should consumer protection be concerned about “repairability” or a “right to repair.”?
-What will the digital marketplace mean for the management of reputation, credit standing, and identity?
-As products increasingly have embedded software, what are the duties of businesses and consumers to keep this software up to date for cybersecurity and product liability/safety purposes?
-In what situations is it appropriate for a business to “brick” a software-embedded product?
-What will product “recalls” look like for software-embedded products? In what situations should voluntary recalls be escalated and become mandatory, government-administered ones?
-In what situations is it appropriate for a business to prohibit or otherwise frustrate consumer self-repair of products?
-What institutional characteristics among governmental, self-regulatory, advocacy, and dispute resolution bodies are needed to ensure dynamism and attention to digital consumer protection?
-How will advertising, marketing, and consumer disclosures change in the digital economy?
-What role will warranties play in products with embedded software?
-How can consumer remedies be tailored to be meaningful in the digital marketplace? What remedies should businesses have for non-payment or other consumer non-compliance?
-Does a consumer protection lens that imposes duties of “reasonableness” suffice, or should regulators take a products liability approach?
-How should rights and responsibilities be allocated among businesses, governments, and consumers themselves to promote digital consumer protection?
The seminar will include graduate students from several different disciplines and backgrounds. Students will work alone or in small groups to generate hypotheses, learning issues, and learning objectives for each issue. The primary aim is to work together in interdisciplinary teams to integrate understanding across different approaches. The discussions will include not only current knowledge of consumer protection but also consideration of research to advance understanding. Students will then develop short presentations on these learning objectives to create group learning and discussion. For the culmination of the course, students will prepare a short research paper that guides decision makers on key issues in digital consumer protection.