Regulating Habit-Forming Technology

56 Pages Posted: 5 Apr 2019

See all articles by Kyle Langvardt

Kyle Langvardt

University of Nebraska at Lincoln - College of Law

Date Written: March 13, 2019


Tech developers, like slot machine designers, strive to maximize the user’s “time on device.” They do so by designing habit-forming products – products that draw consciously on the same behavioral design strategies that the casino industry pioneered. The predictable result is that most tech users spend more “time on device” than they would like and a substantial minority develop life-changing behavioral problems similar to problem gambling.

Other countries have begun to regulate habit-forming tech, and American jurisdictions may soon follow suit. Several state legislatures today are considering bills to regulate “loot boxes,” a highly addictive slot-machine-like mechanic that is common in online video games. The Federal Trade Commission has also announced an investigation into the practice. As public concern mounts, it is surprisingly easy to envision consumer regulation extending beyond video games to other types of apps. Just as tobacco regulations might prohibit brightly-colored packaging and fruity flavors, a social media regulation might limit the use of red notification badges or “streaks” that reward users for daily use.

It is unclear how much of this regulation could survive First Amendment scrutiny; software, unlike other consumer products, is widely understood as a form of protected “expression.” But it is also unclear that well-drawn laws to combat compulsive technology use would seriously threaten First Amendment values. At a very low cost to the expressive interests of the tech companies, these laws may well enhance the quality and efficacy of online speech by mitigating distraction and promoting deliberation.

Keywords: Social media; Gaming; First Amendment; Regulation

Suggested Citation

Langvardt, Kyle, Regulating Habit-Forming Technology (March 13, 2019). Fordham Law Review, Forthcoming, Available at SSRN: or

Kyle Langvardt (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

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