Future of Digital Consumer Protection
Professor Chris Jay Hoofnagle
Aniket Kesari, GSI
INFO 290 LEC 001
Class No. 40454
Mondays from 2:10P-5:00P (Law students, note "Berkeley Time")
South Hall 205
Law students: please note that Berkeley Law starts classes on Monday, August 21, but campus starts Wednesday the 23rd. Our first class will be on Monday, August 28th. We will make up the missed class.
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.
- Learning objectives (LO): Throughout the seminar, students will be developing learning objectives 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. Students are encouraged to use any available research materials. To avoid concerns about plagiarism, students will agree that the LO reports are not for distribution and should only be shared with other seminar participants. Students will upload LO reports to bCourses no later than 5 pm on Wednesday after they are assigned. All students are responsible for reviewing all of the generated LO reports prior to the next class meeting. During the next class meeting, students will deliver short presentations (10-15 minutes) on each LO.
- Research Paper: At the end of the course, students will prepare a short research paper (5 pages). I envision these as a series of concise, high-quality guides for decision makers who are in the same position as we were at the beginning of the semester. Consider what questions were most important from our semester of investigation, and answer one authoritatively and with enough nuance so that it could help people with in different situations. Each short paper should include a bibliography.
- Class reading: given that the LOs drive class discussion, they are the principal reading assignment in any given week.
The PBL Process
For this seminar, we will engage in a cyclical PBL process through which we will:
- Explore and define a realistic problem.
- Analyze the problem using existing knowledge and identify gaps.
- Generate working hypotheses and translate them into learning objectives.
- Research new knowledge to respond to learning objectives.
- Report back, synthesize information, and apply newly acquired information to next problem.
PBL, often referred to as an open inquiry approach, is a process led by the discovery of the learners in which the facilitators play a minimal role to allow the learners to explore the content.
APM-015 Part II statement
This course will deal with material concerning current events and exploration of government actions and their possible consequences. Class discussion will feature such material.
Law students: Hoofnagle's courses count toward's BCLT's certificate program.
Law students: we will start on August 28th and we will make up this day later in the course.
For our first meeting, please read and study the following. Reading the table of contents of books might seem dreary, but this is a key exercise. First, note the most are careful not to call it "consumer protection" law, because it sometimes does not really protect consumers. Second, this exercise helps us understand what experts think "consumer law" is. You will be surprised to see its scope. As you visit it, think about the highest-level principles that define "consumer law."
Your first LO is due Thursday, Sept 7th at noon. Post it to the discussion area. Please be timely--we need to read them carefully and reflect upon them by Monday's class.
|Sunday at Noon||
Weekly deadline for LOs
From week to week, your responsibility is to submit a LO by Sunday at Noon in the discussion area, and to read your colleagues' LOs in preparation for Monday's class
|Mon Oct 2||
Guest talk & Law Make Up Session: Class, if at all possible, please attend Professor Edward Balleisen's talk, 12:45–2 in Boalt (Law School Room 130). To prepare please
|Wed Oct 11||
Law Makeup Session: Please attend Professor Josh Lauer's talk, 4:10–5:30 in South Hall 202.
To prepare, please:
The syllabus page shows a table-oriented view of the course schedule, and the basics of course grading. You can add any other comments, notes, or thoughts you have about the course structure, course policies or anything else.
To add some comments, click the "Edit" link at the top.