Reading list: The Patterns of Digital Deception, Gregory Dickinson

B.C.L.R. (2024). From the introduction:

… In contrast with the mass emails of old, scammers now stalk and target their victims with expert precision. … To bolster the FTC’s traditional, case-by-case approach to combating unfair competition, lawmakers have proposed (and in some instances enacted) new statutes and regulations to restrict the digital technologies that power online deception. The idea is to preserve the FTC’s scarce enforcement resources by enacting prophylactic restrictions on the technologies that drive deception instead of waiting to pursue wrongdoers after the fact.

This Article warns that that approach is a mistake for two reasons. First, what is new and dangerous about technology-powered scams is not any special power to deceive but their unprecedented efficiency.  …

Second, although across-the-board restrictions on digital technologies might have some effect on online fraud, they would do so only at a major cost to innovation…. Across-the-board regulation of key technologies would increase costs and reduce product quality for everyone, for a comparatively minor benefit: scammers would be forced to adopt new tools or, more likely, to ignore the restrictions altogether.

Instead of enacting new technology restrictions, this Article argues, regulators should bolster enforcement efforts in a different way—by coordinating governmental enforcement efforts with those of private litigants….

In particular, four types of online schemes—what this Article identifies as the patterns of deception—have been especially resistant to private enforcement efforts: (1) fly-by-nighters, whose highly mobile operations or location in foreign jurisdictions makes private enforcement difficult; (2) nickel-and-dimers, who operate at a large scale but extract small sums of money from people who individually lack sufficient interest to pursue litigation; (3) user-interface shapeshifters, whose varied and quickly changing user interfaces pose an obstacle to aggregate litigation; and (4) calculated arbitrators, whose terms of service include agreements requiring individualized arbitration of claims and barring consumers from seeking class relief.

… Focus on these legal patterns of deception will offset the procedural limitations of private litigation, thereby enhancing the overall effectiveness of efforts to combat online fraud, while avoiding the impediments to technological innovation that would come from across-the-board technology restrictions.