Better Digital Contracts with Prosocial Friction-in-Design

Human-Focused Turing Tests: A Framework for Judging Nudging and Techno-Social Engineering of Human Beings

Thoughts on Techno-Social Engineering of Humans and the Freedom to Be Off (or Free from Such Engineering)

Revisiting the Marginal Cost Controversy

Two Enduring Lessons from Elinor Ostrom,

Understanding the Problem of Social Cost

Spillovers

Every day, new warnings emerge about artificial intelligence rebelling against us. All the while, a more immediate dilemma flies under the radar. Have forces been unleashed that are thrusting humanity down an ill-advised path, one that's increasingly making us behave like simple machines? In this wide-reaching, interdisciplinary book, Brett Frischmann and Evan Selinger examine what's happening to our lives as society embraces big data, predictive analytics, and smart environments. They explain how the goal of designing programmable worlds goes hand in hand with engineering predictable and programmable people. Detailing new frameworks, provocative case studies, and mind-blowing thought experiments, Frischmann and Selinger reveal hidden connections between fitness trackers, electronic contracts, social media platforms, robotic companions, fake news, autonomous cars, and more. This powerful analysis should be read by anyone interested in understanding exactly how technology threatens the future of our society, and what we can do now to build something better.

Re-Engineering Humanity

Governing Medical Knowledge Commons makes three claims: first, evidence matters to innovation policymaking; second, evidence shows that self-governing knowledge commons support effective innovation without prioritizing traditional intellectual property rights; and third, knowledge commons can succeed in the critical fields of medicine and health. The editors' knowledge commons framework adapts Elinor Ostrom's groundbreaking research on natural resource commons to the distinctive attributes of knowledge and information, providing a systematic means for accumulating evidence about how knowledge commons succeed. The editors' previous volume, Governing Knowledge Commons, demonstrated the framework's power through case studies in a diverse range of areas. Governing Medical Knowledge Commons provides fifteen new case studies of knowledge commons in which researchers, medical professionals, and patients generate, improve, and share innovations, offering readers a practical introduction to the knowledge commons framework and a synthesis of conclusions and lessons. The book is also available as Open Access.

Governing Medical Knowledge Commons (Cambridge Studies on Governing Knowledge Commons)

Infrastructure resources are the subject of many contentious public policy debates, including what to do about crumbling roads and bridges, whether and how to protect our natural environment, energy policy, even patent law reform, universal health care, network neutrality regulation and the future of the Internet. Each of these involves a battle to control infrastructure resources, to establish the terms and conditions under which the public receives access, and to determine how the infrastructure and various dependent systems evolve over time. Infrastructure: The Social Value of Shared Resources devotes much needed attention to understanding how society benefits from infrastructure resources and how management decisions affect a wide variety of interests. The book links infrastructure, a particular set of resources defined in terms of the manner in which they create value, with commons, a resource management principle by which a resource is shared within a community. The infrastructure commons ideas have broad implications for scholarship and public policy across many fields ranging from traditional infrastructure like roads to environmental economics to intellectual property to Internet policy.Economics has become the methodology of choice for many scholars and policymakers in these areas. The book offers a rigorous economic challenge to the prevailing wisdom, which focuses primarily on problems associated with ensuring adequate supply. The author explores a set of questions that, once asked, seem obvious: what drives the demand side of the equation, and how should demand-side drivers affect public policy? Demand for infrastructure resources involves a range of important considerations that bear on the optimal design of a regime for infrastructure management. The book identifies resource valuation and attendant management problems that recur across many different fields and many different resource types, and it develops a functional economic approach to understanding and analyzing these problems and potential solutions.

Infrastructure: The Social Value of Shared Resources

"Knowledge commons" describes the institutionalized community governance of the sharing and, in some cases, creation, of information, science, knowledge, data, and other types of intellectual and cultural resources. It is the subject of enormous recent interest and enthusiasm with respect to policymaking about innovation, creative production, and intellectual property. Taking that enthusiasm as its starting point, Governing Knowledge Commons argues that policymaking should be based on evidence and a deeper understanding of what makes commons institutions work. It offers a systematic way to study knowledge commons, borrowing and building on Elinor Ostrom's Nobel Prize-winning research on natural resource commons. It proposes a framework for studying knowledge commons that is adapted to the unique attributes of knowledge and information, describing the framework in detail and explaining how to put it into context both with respect to commons research and with respect to innovation and information policy.  Eleven detailed case studies apply and discuss the framework exploring knowledge commons across a wide variety of scientific and cultural domains.

Governing Knowledge Commons

This edition has been reorganized to clarify the themes of the book and updated to illuminate new debates at the heart of this evolving field. It groups the material into units addressing the who, how, and what of governance/regulation-fundamental questions that pertain to any legal system, in cyberspace or elsewhere. It includes unit-ending case studies on governance of the domain name system, efforts to control the exchange of counterfeit goods in the online marketplace, and the Google Books Settlement, as well as updated treatment of a number of topics, including peer-to-peer file sharing, online behavioral advertising, and more.

Cyberlaw: Problems of Policy and Jurisprudence in the Information Age, 4th (American Casebook Series)

Villanova University was founded in 1842 by the Order of Saint Augustine. To this day, Villanova’s Augustinian Catholic intellectual tradition is the cornerstone of an academic community in which students learn to think critically, act compassionately and succeed while serving others. Villanova prepares students to become ethical leaders who create positive change everywhere life takes them.


The strength of the Villanova experience comes in part from the University’s welcoming community. All members are bonded together by a shared responsibility to uphold the ideals of Saint Augustine and let the principles of truth, unity and love guide their lives. The Villanova community helps students grow intellectually, professionally and spiritually, and challenges them to reach their full potential.


The University’s rigorous academic experience, rooted in the liberal arts, forms an environment in which students and professors are partners in learning. The Villanova community is dedicated to providing a personalized experience that fosters every student’s intellectual and spiritual well-being. As part of their education, students are encouraged to enrich their own lives by working for those in need. Through academic and service programs, students use their knowledge, skills and compassion to better the world around them.


There are more than 10,000 undergraduate, graduate and law students in the University’s six colleges—the College of Liberal Arts and Sciences, the Villanova School of Business, the College of Engineering, the College of Nursing, the College of Professional Studies and the Villanova University Charles Widger School of Law. These colleges are the setting for an experience that develops both the heart and the mind, and creates the atmosphere where students are called to ignite change.


Villanova University is located in a suburban community 12 miles west of Philadelphia, Pa.

Villanova University

Professor Frischmann is a leading source on issues related to surveillance, technology policy and intellectual property. Frischmann can also discuss issues related to how society benefits from infrastructure resources and how management decisions affect a wide variety of interests. Frischmann has appeared in and written for numerous media outlets, such as The New York Times, Forbes, Scientific American

Digital Contracts

Self-Driving Cars

Technology Policies

Surveillance                                                                                

Intellectual Property

Information Law

Infrastructure

Internet Law

Net Neutrality

Autonomous Vehicles

How to Use ChatGPT to Apologize

Free Will Under Threat: How Humans are at Risk of Becoming Wards of Technologists

You’re Not Alone When You’re on Google

Is Technology Re-Engineering Humanity?

Op-ed: Algorithm and Blues: The Tyranny of the Coming Smart-Tech Utopia

How Facebook Programmed Our Relatives

How Self-Driving Car Policy Will Determine Life, Death and Everything In-Between

Op-ed: Your NCAA bracket is a reverse Turing test

digital-contracting-is-broken-a-little-friction-could-go-a-long-way-in-fixing-it

Charles Widger Endowed University Professor in Law, Business and Economics | Charles Widger School of Law

In mid-October, the Federal Trade Commission (FTC) announced a final “click-to-cancel” rule, which, after its provisions go into effect, will make it easier for consumers to cancel recurring memberships and subscriptions. 

The rule is an undoubtable victory for consumers who have run into roadblocks attempting to protect their wallets amid the flurry of oversubscription in today’s world, but it also begets an important question: Why is oversubscription occurring in the first place?

“One important reason for that problem is that getting into contracts is frictionless, it’s too easy,” said Brett Frischmann, JD, the Charles Widger Endowed Professor in Law, Business and Economics in Villanova University’s Charles Widger School of Law. “The FTC is addressing a real concern in making it easier for people to exit agreements of this sort. But while making it as easy to unsubscribe as to subscribe sounds great – we all like even playing fields and symmetry – it might be better to also make subscribing a little more burdensome, so people understand what they are getting themselves into in the first place.”

This idea is the focus of Frischmann’s recent paper, titled “Better Digital Contracts with Prosocial Friction-in-Design,” the publication of which coincides with public dissatisfaction over digital contracting processes. In August, Disney attempted to have a wrongful death lawsuit blocked, citing print in terms and conditions from a one-month Disney+ free trial the plaintiff signed up for in 2019. Since then, other companies have succeeded in recently blocking the commencement of similar lawsuits. 

In the research, Frischmann and his co-author, Rice University computer scientist Moshe Vardi, describe these contracts as “dehumanizing” and that they “undermine human autonomy and sociality, by design,” citing how they elicit behavior in a pre-determined manner (such as clicking on cue) and often include side agreements with other entities, unbeknownst to the users. 

“One-click” contracts rely on legal fictions, such as presuming that clicking an “I have read the terms and conditions” button actually means that they have. They are structured this way intentionally. 

 “The idea behind digital contracting is ‘Let’s make the contract as quick as possible before people leave or change their mind,” Frischmann said. “They only want to do the minimum that the law requires, and all the law requires is notice of terms and action that says, ‘I agree.’”

For these reasons, he argues, modern digital contracting contradicts the purpose of contract law in the first place; enabling people to reach genuine agreements and cooperate.

“It’s antithetical to the underlying values of a contract,” Frischmann said. “Autonomy is undermined because people are not able to exercise autonomy in a meaningful way when they are not actually capable of deliberating about the terms to which they are agreeing. As for being cooperative, there is no relationship. Digital contracts are completely one-sided.” 

So what can be done to combat this?

“Speedbumps,” Frischmann says, referring to measures that can cause friction in the contracting process to better protect the user. Physical road speedbumps represent a useful analogy, because while they make things slightly more inconvenient for the user, they are deployed strategically where other values are at stake, like the safety of children playing outside.  

“People tolerate speedbumps,” Frischmann says, “because they serve a social purpose. Friction in digital contracts is similar.”

With respect to improving digital contracting, there are multiple measures that can be taken that inherently have such friction, but not all of them are always appropriate. 

Completely Automated Public Turing Test to Tell Computers and Humans Apart (CAPTCHAs), for example, are a type of friction-in-design that serve a useful social purpose (security) and have become normalized and tolerated, but some CAPTCHAs are ableist and others may generate proprietary data.

Where he sees the most beneficial friction existing is in comprehension, which in software form could be completing a task or passing a test to prove an individual understands the agreement.

Comprehension is the basis for one of Frischmann’s proposed alterations to contract law. Currently, the oft-criticized concept of informed consent is utilized. He argues it should be replaced with demonstrably informed consent, in essence requiring entities to further show that people truly comprehend what they are agreeing to. 

“Right now, individuals assent to contracts, going along with terms someone else insisted upon,” he said. “But assenting to terms is very different than being informed and consenting. To demand demonstrably informed consent shifts the burden on the provider to generate evidence showing in fact a person understood and agreed.”

In the recent Disney case, for example, demonstrably informed consent would have required not just clicking an agreement when signing up for Disney+, but that Disney somehow explained to an individual that if they sign up for a free trial, they cannot take the company to court, and further generating reliable evidence that the individual understood that. If that were the case, perhaps the individual would not have signed up.

“Or, they may not have ever gone to the Disney park if they had [signed up],” Frischmann said.

This proposed change in contract law, along with the various potential methods of engineered friction in digital contracts all circle back to the same goal: slowing down contracting where it affects people in ways they do not understand. 

“You can’t have digital contracting built like a highway, where it’s all as fast as possible all the time,” Frischmann said. “For our digitally networked environment, it needs to be built like a neighborhood.”



Digital Contracting Is Broken. A Little "Friction" Could Go a Long Way in Fixing It

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