Free: Accounting for the Costs of the Internet’s Most Popular Price

65 Pages Posted: 20 Mar 2013 Last revised: 28 Feb 2014

Chris Jay Hoofnagle

University of California, Berkeley - School of Information; University of California, Berkeley - School of Law

Jan Whittington

University of Washington - Department of Urban Design and Planning

Date Written: February 28, 2014

Abstract

Offers of free services abound on the Internet. But the focus on the price rather than on the cost of free services has led consumers into a position of vulnerability. For example, even though internet users typically exchange personal information for the opportunity to use these purportedly free services, one court has found that users of free services are not consumers for purposes of California consumer protection law. This holding reflects the common misconception that the costs of free online transactions are negligible — when in fact true costs may be quite significant. To elucidate the true costs of these allegedly free services, we apply a transaction cost economics (TCE) approach. Unlike orthodox economic theory, TCE provides a framework for analyzing exchanges in which the price of the product seems to be zero. Under a TCE analysis, we argue that information-intensive companies misuse the term “free” to promote products and services that involve numerous nonpecuniary costs. In so doing, firms generate contractual hazards for consumers, ignore consumer preferences for privacy, and mislead consumers by creating the impression that a given transaction will be free.

While psychological research and behavioral economics may support an outright ban of free offers because of their biasing effects, TCE suggests reforming governance structures to place the business risks associated with free transactions more firmly in the hands of businesses. We suggest alterations to governance structures — such as the Federal Trade Commission’s Guide Concerning Use of the Word “Free” (FTC Guide) — to curb the incentives of firms to raise transaction costs for consumers. The FTC Guide provides support for two of the consumer protection measures we propose: first, a requirement that free service providers clearly disclose that such providers seek users’ personal information in exchange for those services, and, second, the establishment of a regular price before providers can market a service as free. We further argue that the recognition of users of free services as consumers for purposes of consumer protection law would better align incentives and ensure users access to legal redress against some of the most popular services on the Internet. Lastly, we suggest the adoption of alternative governance structures designed to reduce the cost of transacting by curbing the collection of personal information from consumers of free services and by enhancing the rights of consumers to govern the dispersal of personal information from free online services to third parties.

Keywords: transaction cost economics, TCE, free, free offers, privacy, social network services, right to delete, portability, right to be forgotten, Williamson, New Institutional Economics, Federal Trade Commission, FTC free guide, Chris Anderson

JEL Classification: A13, B25, D18, D23, D82, D18, K20

Suggested Citation

Hoofnagle, Chris Jay and Whittington, Jan, Free: Accounting for the Costs of the Internet’s Most Popular Price (February 28, 2014). 61 UCLA L. Rev. 606 (2014). Available at SSRN: https://ssrn.com/abstract=2235962

Chris Jay Hoofnagle (Contact Author)

University of California, Berkeley - School of Information ( email )

212 South Hall
Berkeley, CA 94720-4600
United States
510-643-0213 (Phone)

HOME PAGE: http://hoofnagle.berkeley.edu

University of California, Berkeley - School of Law ( email )

344 Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-0213 (Phone)

HOME PAGE: http://hoofnagle.berkeley.edu

Jan M. Whittington

University of Washington - Department of Urban Design and Planning ( email )

Seattle, WA
United States
(206) 221-6298 (Phone)
(206) 685-9597 (Fax)

HOME PAGE: http://urbdp.be.washington.edu/people/jan-whittington/

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