Life in the attention economy, where the mind’s resources are treated as a scarce commodity, is marred by an onslaught of distraction. Media outlets, social platforms, and tools like Google’s search engine, sell their product for cheap, or more often for free. Thus, they make their profit by competing for human attention to resell to advertisers: marketing user’s attention as a good to be bought and sold. The prevalence of attention markets is most concentrated in the tech sector, where attention is currency. The competition for this resource, as tech ethicist Tristan Harris puts it, is “a race to the bottom of the brain stem,” where tech companies do whatever they can to hold an audience captive. Given the relative novelty of this consumer-corporate dynamic, the law has yet to develop the appropriate tools to effectively regulate in this economy. Faced with little resistance, Big Tech has successfully consolidated massive amounts of economic and social power by monopolizing the market of the human mind.

That’s where Tim Wu, Columbia Law professor and recent Biden Administration appointee, comes in. As President Biden’s Special Assistant on Technology and Competition Policy, Wu will be charged with facilitating inter-agency coordination to address competition policy in the tech sector– a significant position in antitrust and consumer protection regulation.

For Wu, the problem is clear: government regulatory agencies “have no good paradigm for dealing with some of today’s attentional intrusions– those intrusions which seize time and attention, causing cognitive impairment as opposed to financial injury,” he stated in a 2017 article published in the Antitrust Law Journal. The consumer is left unprotected against corporations who put their multi-billion dollar weight behind engineering techniques that grab our attention to sell to advertisers. In this light, the common advice to consumers: “pay attention to where you pay attention,” put forth by social critic Howard Rheingold, seems a woefully toothless miscalculation of the power dynamic.

The Attention Economy

In his 2016 book, The Attention Merchants, Wu describes the business model that drives the attention economy: companies attract a crowd by providing content or a service for a negligible fee, and then sell the attention garnered to advertisers. Big tech and most news media, the namesake “Attention Merchants,” are in the business of “selling eyeballs,” Wu explains.

The value of attention is in its influence over human action. Once captured, the holder obtains the power to essentially schedule the enthralled consumer’s thoughts. Theoretical physicist Michael Goldhaber used a simple, but effective thought experiment to illustrate this power: “Think of a panda. When you started reading this article, you had no idea this black-and-white mammal would enter your thoughts.” Mirroring the attention merchants’ strategy, Goldhaber takes advantage of the fact that he captured your attention, and thus procured the power to insert an image of his choosing into your mind.

Agency of mind is at the core of what it means to be a free individual. When the market, notorious for often turning a blind eye to public interest, gets hold of our attention and trades it as a commodity, freedom of thought is corrupted. ‘Selling your soul’ is given a whole new, even more sinister meaning and reality.

Wu and the Non-Consensual Seizure of Attention

In his 2017 law review article, Wu coins this ability to implant thoughts into viewers’ minds as the “non-consensual seizure of attention,” which he likens to unwillingly “having your synapses groped by a stranger.” Wu points to a plethora of neurological studies that have shown how movement, sound, and visual triggers are able to unilaterally command our attention without our conscious awareness, akin to a reflex. The matter of consent as a means to regulate access to the body could be a point of entry for government regulation.

This seizure of the mind’s scarce resources was perfected by the Stanford Persuasive Technology Lab and implemented by alumni in Silicon Valley tech companies. Tristan Harris, a Lab alumni and ex-Google employee, explains in his 2017 TED Talk, that there are “a hundred engineers on the other side of the screen who [know] exactly how your psychology [works],” and use scientifically-tested techniques such as autoplay, notifications, color schemes, and more to neurologically maximize attention capture. The consumer’s decision-making and thought-generation faculties are thwarted and substituted for corporate interest.

Wu questions the constitutionality of this invasion, pointing to the freedom of thought embodied in the spirit of the Bill of Rights, particularly the First Amendment. He cites Kovacs v. Cooper, in which the Court defines a “captive audience” as one compelled to be there and unable to escape. In that case, the court ruled that some speech, such as music blasted from a truck, could be a public nuisance that distrubed the “tranquility of a community,” and therefore is not protected by the First Amendment. Just as trucks broadcasting loud advertisements in the street forcefully subjects citizens to audio-visual stimuli that they are unable to ignore, attention merchants use engineering to commandeer our brain’s resources. Following the spirit of the ruling, it is not only acceptable, but a public good to regulate the activities of attention merchants who treat us as a captive audience online.

Public Harm

The negative social and mental impacts of this non-consensual seizure incentivized in attention markets are conspicuous. A revealing statement by Netflix CEO Reed Hastings illustrates one instance where profit-maximization in the attention economy is at odds with public health: “we actually compete with sleep … And we’re winning!”

The magnitude of power wielded by these tech companies that steer two billion people’s thoughts every day, drove Harris to create a Ledger of Harms outlining Big Tech attention market externalities affecting public health. Among the mental health injuries, studies show that the average American spends five weeks a year dealing with distractions, decreasing long-term memory. In one study researchers found that addiction to Facebook is positively linked to lower brain volume similar to the effects of cocaine usage.

Beyond individual mental health effects, the social ramifications of basing almost all online interaction and news dissemination on platforms solely motivated to maximize ‘time on site’ (as it's called in the industry) are becoming more apparent. It’s almost common knowledge that fake news spreads six times faster than true news on social media platforms, and the pandemic was not an aberration: 45% of coronavirus-related Tweets are fake and spread by bots, a Carnegie Mellon study found. Facebook’s own internal report found that in 2016, of users who joined an extremist group, 64% did so by clicking on a Facebook pop-up recommendation, making the rise of QAnon and the Capitol insurrection seem rather predictable. It’s clear that when the governing goal of these platforms is to harness and prime the mind for infiltration, public good falls by the wayside.

A New Era of Regulation

Much of Wu’s scholarship on the attention economy raises ethical questions about a market that incentivizes attracting and holding attention. In his law review article, Wu brings up public health implications of the attention merchant business model, positing, “[W]e may find that government is in some contexts doing far too little to protect us from the bombardment.” Sheer will power inevitability and invariably losses to neurological manipulation. So, when such manipulation is found to have appalling negative social and mental effects, the government must step in to protect the consumer stripped of agency.

In The Attention Merchants, Wu supplies an analysis of consumer revolts and regulation in historical attention economies as precedent. One potent example is the 1949 Federal Communications Commission (FCC) fairness doctrine that developed in response to Hitler’s effective, destructive use of the radio to command mass attention. The doctrine (which included legal implications), required broadcasters to air controversial issues of public interest in a balanced, equitable fashion. The regulatory doctrine forced the consideration of public impact when companies found themselves with the power to infiltrate and sway public opinion–a sorely needed nudge in today’s attention economy.

In the current landscape, the amount of power amassed in Big Tech through unaccountable private decisions is scary; Wu believes he knows what needs to be done. Using price to determine the market competition in the attention economy is inaccurate, Wu argues. His law review article explains the need of an attention-brokering equivalent to the price-based antitrust concept of “Small but Significant and Non-Transitory Increase in Price” (SSNIP), which traditionally defines markets by measuring the effect of a price change in one product on the demand of the other product. In theory, this principle prevents a company from undercutting the competition and monopolizing the market–exactly what Big Tech has done. Wu hopes that Big Tech antitrust will be more accurately targeted by using advertisement load and consumer time spent as market power assessment. Armed with these measurement tools, government economic oversight agencies could be empowered to break up the monopolization within attention markets to limit the consolidation of attentional power. Breaking up Big Tech would prevent companies like Facebook from commanding virtually unilateral power to decide how to interact with the minds of billions of users worldwide.

In a 2020 episode of his podcast, Your Undivided Attention, Harris interviewed Wu on policy solutions beyond antitrust that could reign in the Big Tech attention economy. Given the current market trajectory of the creation of a digital infrastructure that has the potential to control the masses, and subsequent concerns for the health of democracy, Wu agreed that the human behavior (essentially attentional) markets might be reprehensible and worthy of oversight. To address this imbalance, he suggested anti-surveillance laws to limit ad-targeting, and push-back against the invasion and commodification of friendship and the home.

It is worth considering how the attention economy has brought a wealth of free services – almost the entirety of internet content unshielded by a paywall, among other things. Not only can this ‘free’ content be informative and fun, but the lack of a price-barrier makes it widely accessible: just about everyone can ‘Google it.’ However, the public harms enumerated earlier in this article expose the severity of the true price we pay for this free content. When mental health and freedom of thought are injured, the well-being of our society and our democracy are jeopardized, and the price we are willing to pay should be reevaluated.

Wu now holds a powerful position within this Big Tech regulatory struggle. Given the direction in which his scholarship points, and the support of the impressive antitrust task force President Biden assembled, we may be in for a serious reshaping of government regulation in the attention economy. As more becomes known about the magnitude and extent of attention markets’ public harm, the true price of free content and services is exposed, giving the Biden team more grounds and public support for regulation. The Biden Administration stands poised to mount an overhaul of Big Tech regulation through antitrust suits and checks on manipulative engineering. Possible policy solutions (although few have been well developed) include advertisement caps akin to the price caps seen in some pharmaceutical markets, and requirements for showing the user their time spent on site. The Biden Administration would even find friends across the aisle for banning the ‘infinite scroll’ to curb social media addiction.

With Big Tech antitrust and regulation given a powerful new platform in the Biden Administration, more resources will be devoted to crafting creative policy to check the attention economy. Wu’s pursuit is no trifle: ‘You aren’t your money,’ the traditional consumer defense, is not as clear in the attention economy. In many ways, you are your attention, your consciousness, your mind.

Carmen Vintro is a sophomore studying English with minors in philosophy and economics at Barnard. She is a self-described library-enthusiast and adores chatting with strangers at coffee shops.

What Tim Wu’s Addition to the Biden Administration Means for Regulation of Big Tech’s “Attention Economy”