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"That Makes Me Smart": When "unfair and deceptive" becomes fair game.
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"That Makes Me Smart" (permalink)

The Biden administration disappointed, frustrated and enraged in so many ways, including abetting a genocide – but one consistent bright spot over the past four years was the unseen-for-generations frontal assault on corporate power and corporate corruption.

The three words that define this battle above all others are "unfair and deceptive" – words that appear in Section 5 of the Federal Trade Commission Act and other legislation modeled on it, like USC40 Section 41712(a), which gives the Department of Transportation the power to ban "unfair and deceptive" practices as well:

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

When Congress created an agency to punish "unfair and deceptive" conduct, they were saying to the American people, "You have a right not to be cheated." While this may sound obvious, it's hardly how the world works.

To get a sense of how many ripoffs are part of our daily lives, let's take a little tour of the ways that the FTC and other agencies have used the "unfair and deceptive" standard to defend you over the past four years. Take Amazon Prime: Amazon executives emailed one another, openly admitting that in their user tests, the public was consistently fooled by Amazon's "get free shipping with Prime" dialog boxes, thinking they were signing up for free shipping and not understanding that they were actually signing up to send the company $140/year. They had tested other versions of the signup workflow that users were able to correctly interpret, but they decided to go with the confusing version because it made them more money:

https://arstechnica.com/tech-policy/2024/05/amazon-execs-may-be-personally-liable-for-tricking-users-into-prime-sign-ups/

Getting you signed up for Prime isn't just a matter of taking $140 out of your pocket once – because while Amazon has produced a greased slide that whisks you into a recurring Prime subscription, the process for canceling that recurring payment is more like a greased pole you must climb to escape the Prime pit. This is typical of many services, where signing up happens in a couple clicks, but canceling is a Kafkaesque nightmare. The FTC decided that this was an "unfair and deceptive" business practice and used its authority to create a "Click to Cancel" rule that says businesses have to make it as easy to cancel a recurring payment as it was to sign up for it:

https://www.theregister.com/2023/07/12/ftc_cancel_subscriptions/

Once businesses have you locked in, they also spy on you, ingesting masses of commercial surveillance data that you "consented" to by buying a car, or clicking to a website, or installing an app, or just physically existing in space. They use this to implement "surveillance pricing," raising prices based on their estimation of your desperation. Uber got caught doing this a decade ago, raising the price of taxi rides for users whose batteries were about to die, but these days, everyone's in on the game. For example, McDonald's has invested in a company that spies on your finances to determine when your payday is, and then raises the price of your usual breakfast sandwich by a dollar the day you get paid:

https://pluralistic.net/2024/06/05/your-price-named/#privacy-first-again

Everything about this is "unfair and deceptive" – from switching prices the second you click into the store to the sham of consent that consists of, say, picking up your tickets to a show and being ordered to download an app that comes with 20,000 words of terms and conditions that allows the company that sends you a QR code to spy on you for the rest of your life in any way they can and sell the data to anyone who'll buy it.

As bad as it is to be trapped in an abusive relationship as a shopper, it's a million times worse to be trapped as a worker. One in 18 American workers is under a noncompete "agreement" that makes it illegal for you to change jobs and work for someone else in the same industry. The vast majority of these workers are in low-waged food-service jobs. The primary use of the American noncompete is to stop the cashier at Wendy's from getting an extra $0.25/hour by taking a job at McDonald's.

Noncompetes are shrouded in a fog of easily dispelled bossly bullshit: claims that noncompetes raise wages (empirically, this is untrue), or that they enable "IP"-intensive industries to grow by protecting their trade secrets. This claim is such bullshit: you can tell by the fact that noncompetes are banned under California's state constitution and yet the most IP-intensive industries have attracted hundreds of billions – if not trillions – in investment capital even though none of their workforce can be bound under a noncompete. The FTC's order banning noncompetes for every worker in America simply brings the labor regime that created Silicon Valley and Hollywood to the rest of the country:

https://pluralistic.net/2023/10/26/hit-with-a-brick/#graceful-failure

Noncompetes aren't the only "unfair and deceptive" practice used against American workers. The past decade has seen the rise of private equity consolidation in several low-waged industries, like pet grooming. The new owners of every pet grooming salon within 20 miles of your house haven't just slashed workers' wages, they've also cooked up a scheme that lets them charge workers thousands of dollars if they quit these shitty jobs. This scheme is called a "training repayment agreement provision" (TRAP!): workers who are TRAPped at Petsmart are made to work doing menial jobs like sweeping up the floor for three to four weeks. Petsmart calls this "training," and values it at $5,500. If you quit your pet grooming job in the next two years, you legally owe PetSmart $5,500 to "repay" them for the training:

https://pluralistic.net/2022/08/04/its-a-trap/#a-little-on-the-nose

Workers are also subjected to "unfair and deceptive" bossware: "AI" tools sold to bosses that claim they can sort good workers from bad, but actually serve as random-number generators that penalize workers in arbitrary, life-destroying ways:

https://pluralistic.net/2024/11/26/hawtch-hawtch/#you-treasure-what-you-measure

Some of the most "unfair and deceptive" conduct we endure happens in shadowy corners of industry, where obscure middlemen help consolidated industries raise prices and pick your pocket. All the meat you buy in the grocery store comes from a cartel of processing and packing companies that all subscribe to the same "price consulting" services that tells them how to coordinate across-the-board price rises (tell me again how greedflation isn't a thing?):

Pluralistic: Daily links from Cory Doctorow

Episodes

Pluralistic: "That Makes Me Smart" (04 Dec 2024)