Like oil, gold, and cobalt, attention is a finite resource, and yours is being mined for profit. And not only by the players you think of—Facebook, TikTok, and Instagram—but also by Netflix, Google, Nintendo, Samsung, and all the other corporations vying to keep brains and eyes locked to their products. Combined, these companies have an annual revenue of well over $1 trillion, and all that money is made by extracting your time and attention from you and selling it to other people. Attention is time, and we all have a limited amount. We have to know how it is being taken from us, and, as lawyers and leaders in our political and regulatory world, we have to fight to protect the attention of everyone.
It’s Not the Data, It’s How They Use It
All too often these days, we find ourselves talking about our data and the dangers that come with Meta, Apple, Google, and others having lots of data about us. While I don’t wish to trivialize the importance of data security in our modern age, data is nearly worthless in the hands of someone who fails to capture your attention. Your phone number, for example, is worth a lot more to a telemarketer if you have a cell phone in your pocket all day instead of a phone stuck to the wall at home. And your phone number is basically worthless unless you have been trained to answer the phone when someone calls. In any consumer data product, it is your attention that carries the vast majority of the value.
There are a number of ways for companies to profit off your attention with the data they collect, and many companies combine these to multiply their profits. Streaming services use data to present you with a steady stream of content that suits your interest, holding on to you as a paying customer. Social media services sell your data to companies that can precisely target ads to the consumers whose attention that social media service has captured. Business software providers expand their roots throughout your operations to ensure the cost of their service never exceeds the cost of your switching to a program offered by a competitor. And hardware companies control the ecosystems we spend our time in, profiting off giving app developers access to our eyes, ears, and pockets. Apple is a great example of a company doing just that, all while expanding its market share with promises not to share data.
A New Era for a Timeless Issue
This isn’t a new issue. Since the beginning of time, people have tried to profit off the attention of others. Television and video games were lambasted as dumbing down the world as they captured the attention of humanity in new and exciting ways. Long before that, the ancient Greeks ridiculed their youth for the act of reading instead of memorizing, which was sure to atrophy their brains. I’m sure even prehistoric cave painters were given some extra food as a thank-you for giving their fellow cave people something colorful and distracting to look at.
But this is a new era and one for which we are frankly unprepared. Even the great technological advancement from books to recordings to television is nothing like what we face today. In the attention-mining economy, we have entered the era of fracking and offshore drilling, and we have to recognize the danger this new era poses.
Where before our attention was divided across various physically separated items and spaces, they have now come together. In our pockets is a device that combines the television, music player, video game, community space, phone, exercise equipment, computer, and, for some of us, even our office. It will surprise no one that parts of this article were written on the “phone” in my pocket. Work now comes home with us, and television goes to work. With this unification of worlds has come massive quantities of data and technological advancements that have made each of these things better at mining our attention. Social media is the easiest example of all to see this, but you can now spend an entire work day, including phone calls, meetings, water cooler chats, and tasks completed, within Microsoft’s or Google’s ecosystem. The era we are in now is different, and that, in many ways, is a very good thing, but it also comes with bigger problems.
We Are Not the Problem
While I was writing this article, at one point, I took a break and set a timer for myself to go on social media for a bit. Ultimately, I ended up going about ten minutes past when my timer went off because I made the mistake of setting the timer on my phone instead of in another physical location. As far as social media holes go, this wasn’t that deep of a fall, but I tell the story because it demonstrates two of the ways modern technology is insidiously extracting our attention. On the one hand, I had social media holding my attention with an infinite stream of content designed and tested specifically to cause chemical reactions in my brain that hold me there. On the other hand, I had a physical device that has captured so much of my attention I didn’t think twice about using it to regulate my use of it. Even worse, the exact same upward swiping motion that gave me the next video also snoozed my alarm. It was so easy to simultaneously scroll on and silence my timer that I’m not sure I was even conscious of it happening.
Blaming consumers for unhealthy technology use is like blaming fish for swimming in the Gulf of Mexico while BP was drilling there. All day every day, there are thousands upon thousands of people in jobs and in hobbies working on how best to mine every drop of consumer attention they can get from us. If you think an individual consumer has any chance against that force, I’d like you to recall the last time you saw a pro se litigant go up against an experienced trial lawyer. The fight against modern technology is much less fair. Calls for personal responsibility in the attention economy are no different than Coca-Cola sponsoring anti-littering ads or car companies blaming the “jays” in the street for getting hit by cars. It’s corporate gaslighting.
The answer is not just to stop using these products. Each of these technologies has the potential to do incredible things for individuals and the world. It is absurd to expect or even want consumers to just ignore the value of modern technology, but blaming the consumer allows companies to abdicate authority for the harm they cause while reaping the benefits of the good.
Solutions Are Obvious, but Not Easy
Sam Altman of OpenAI became a media and political darling by calling for the regulation of artificial intelligence (AI) in what was portrayed as an altruistic warning from a man who truly cares for the safety of humanity. But as soon as the European Union (EU) began drafting that regulation, Altman began threatening to pull OpenAI out of the EU entirely. We cannot leave our fate and the fate of a public good like the Internet in the hands of self-serving billionaires who maintain their convictions only so long as they align with their profits.
I say solutions are obvious because they involve using the tool that has protected consumers in every industry in every country in every time: government regulation. There is lots of low-hanging fruit if we have the will—ending infinite scroll, setting standards for data security, and monitoring access to and use of advanced AI, to name a few. But I say solutions are not easy because I imagine about a quarter of you had an immediate visceral reaction to the solution. We can differ on the what and the how of regulation, but as lawyers, we have to let our voices be heard on this subject. The average consumer has less knowledge of the regulatory industry and less access to the halls of power than we do.
Furthermore, if you’ve read this far or read my previous columns, I suspect you are someone with a better-than-average understanding of social media. Another reason I say solutions are not easy is because our current legislators clearly lack your understanding. If you watched any portion of the recent TikTok hearings or past Facebook hearings, they were a national embarrassment. At the TikTok hearing, one legislator asked if TikTok accessed the Internet. During the previous Facebook hearings, a legislator asked Mark Zuckerberg how Facebook makes money if it’s free. Our legislators need people speaking to them who are more informed on these issues.
I hope you have enjoyed this departure from my more practical and practice-focused social media columns—it certainly helps me sleep better. I do want to make sure I leave you with one bit of practical advice, though: Call your legislators and demand better.