NEW YORKERS! Catch me TONIGHT at The Strand with Sarah Jeong, Tochi Onyebuchi and Alia Dastagir for a PEN World Voices panel called “Techidemic.”
If you want to piss me off, it's easy: just breezily assert that our tech regulation problems are the result of the fast pace of technological change racing ahead of the plodding speed of governmental action:
While there have been some instances in which this was true, it is far more often the case that there are blindingly obvious answers to tech problems, which our lawmakers and regulators ignore, amidst a rising chorus of warnings about the dire consequences of failing to act.
Take the new Maryland bill that (supposedly) outlaws surveillance pricing: this bill is, frankly, a terribly drafted piece of shit. Worse: it's a terribly drafted piece of shit bill that fails to resolve a serious and urgent problem. Even worse: the lawmakers who drafted this piece of shit bill and Maryland Governor Wes Moore were all loudly and repeatedly warned about the problems of this bill, and they did nothing and now the people of Maryland are fucked.
So what is surveillance pricing, why is it so dangerous, and what's wrong with Maryland's Protection Against Predatory Pricing Act?
Surveillance pricing is when a company spies on you ("surveillance") and uses the resulting dossier to raise its prices to the maximum it calculates you will be willing to pay ("pricing"). With surveillance pricing, a retailer reaches into your bank account and devalues your dollars. If you pay $2 for an apple at the grocery store and the same store only charges me $1 for that apple, then that grocer is telling you that your dollars are worth half as much as mine:
There's a kind of economics brainworm that makes some economists looooove surveillance pricing. They will insist that this is an "efficient" way to price goods, and claim that surveillance pricing isn't just a way to raise prices on people who are willing to pay more, it's a way to lower prices for people who are willing to pay less.
What you're supposed to infer from this is that people who can afford more will end up paying more, while people who can afford less will pay less. It's pitched as the Robin Hood of pricing policies, gouging the rich to finance discounts for the poor. But in practice, that's not at all how surveillance pricing works. Instead, surveillance pricing is most often used to levy a "desperation premium" on people who have fewer choices and less leverage.
For example, there's a McDonald's investments portfolio company called Plexure that supplies surveillance pricing tools to fast food restaurants. Plexure advertises its ability to use surveillance data to find out when a customer has just gotten a paycheck so that vendors can increase the price of their usual breakfast sandwich order. This isn't aimed at wealthy people – it's explicitly designed to target people who are living paycheck to paycheck.
Surveillance pricing is also used to determine how much you get paid; when that happens, we call it "algorithmic wage discrimination." Gig platforms like Uber use surveillance data about their drivers to predict which workers are most desperate, and those drivers are offered less money per mile and per hour, because a desperate worker will take whatever is on offer. Gig work apps for health-care do the same thing to nurses:
Indeed, surveillance pricing represents a kind of cod-Marxism. Instead of "from each to their own ability, to each according to their need," the "efficient" surveillance pricing motto is, "from each according to their desperation, to each according to our power":
Surveillance pricing is anything but efficient. Because surveillance pricing is a transfer from consumers to investors, it has the net effect of reducing consumption overall. If your grocer can screw you out of an extra $50/month on your household food bill, that's $50/month you can't spend on a babysitter, a movie, or a couple of nice books for your kid. The American economy runs on consumption, and the American consumer has less discretionary income than they've had in generations. Anything that reduces consumption is a drag on the whole economy.
Surveillance pricing is rampant and getting worse all the time. During the Biden administration the FTC held hearings on the practice and developed a detailed, eye-watering record of all the ways that surveillance, combined with digital platforms that can alter prices for every visit by every customer, has resulted in a massive transfer from working people to wealthy investors:
Unfortunately – and predictably – Trump's new FTC chairman, Andrew Ferguson, killed off that action, replacing it with an initiative that encouraged FTC officials to anonymously rat each other out for being too "woke":
He did this even as a whole bunch of surveillance pricing companies were blitzing their clients with messages about the surveillance pricing possibilities created by Trump's tariffs, which would condition buyers to expect higher prices, creating opportunities to smuggle in surveillance-priced premiums:
It's only gotten worse since. Back in January, Google CEO Sundar Pichai announced that the company had a new plan to make AI profitable: they would supply surveillance prices for sellers who used Google's advertising services. After all, Google spies on more people, more comprehensively, than anyone except Meta and the NSA, and Google has an advanced ad-targeting network and a giant AI arm. Put these three facts together and Google can offer merchants the ability to target you for ads and prices that are calculated, to the penny, to be the most you would be willing to pay:
All this – rampant, desperation-based price-gouging; federal inaction; a risk to the whole economy – is the backdrop for Maryland's new anti-surveillance pricing bill, which Governor Wes Moore has been trumpeting as the nation's first state bill banning surveillance pricing. This would be very cool – if it was real. But – as the American Economic Liberties Project's Pat Garofalo writes for the Economic Populist – the Protection Against Predatory Pricing Act is so badly drafted that it will have essentially no impact on surveillance pricing. It's positively riddled with loopholes:
The first problem with this bill is its scope: it only regulates surveillance pricing for groceries. It has nothing to say about the use of surveillance data to reprice car rentals, apartments, healthcare, taxi rides, quick-service food, or the thousand other areas where surveillance pricing is already rampant. Worse: it is silent on algorithmic wage discrimination: the use of surveillance data to reprice your wages, penalizing workers for being poor by making them even poorer.
Now, helping people with their grocery bills isn't nothing. However, even within that very narrow scope, this bill is a disaster. As Garofalo points out, the bill's first glaring loophole here is how it permits surveillance pricing if a purchaser "consents." This is quite a loophole! After all, we live in an era in which "consent" consists of clicking "I agree" when presented with a gigantic list of terms and conditions, which you cannot negotiate, which are subject to change without notice, and which are so long that it would take 26 hours to review all the "agreements" you "consent" to in any given 24-hour day.
So if the company that you use to book your pet's veterinary check-ups is owned by the same company that provides your grocer with its surveillance pricing tools, you might "consent" to having that company jack you on every bag of groceries just by clicking "I agree" when your cat needs a vet appointment.
The bill also exempts "promotional offers" and "temporary discounts," suggesting that it was drafted by someone who has never encountered a merchant whose retail premises are always plastered with signs trumpeting the fact that every price in the shop is both "temporary" (ACT NOW!) and "promotional" (SALE! SALE! SALE!). Since the bill doesn't define either of these words, it effectively grants every grocer in the state an easy way to evade the law entirely.
Finally, the bill exempts two exceptionally scammy tactics that are already the major vehicle for surveillance price-based gouging: loyalty cards and subscription-based pricing.
But even if you are ripped off by a grocer who can't be bothered to call the scam a "sale" or a "temporary offer," who can't be bothered to dress it up as a "loyalty perk" or a "subscription price," you still can't get justice. That's because the Protection Against Predatory Pricing Act excludes the "private right of action," which means that you can't sue a grocer who rips you off. All this bill lets you do is petition the state Attorney General's office to sue the grocer on your behalf, and if the AG doesn't think you deserve justice, you're shit out of luck. And the Protection Against Predatory Pricing Act pre-empts other rights in Maryland's existing Consumer Protection Act, meaning that it actually gives Marylanders fewer rights than they had a month ago, before it was signed into law.
Legislation this bad doesn't happen by accident. The omissions and defects in this law aren't there because "technology moves so fast that lawmakers can't make sense of it." This is the result of lobbyists and sellout politicians conspiring to rip off the public, and of a governor who decided to ignore the warnings about the bill in order to get a chance to grandstand on Bill Maher while doing nothing to help Marylanders:
From nurses' wages to your payday breakfast sandwich, surveillance pricing is everywhere, especially in groceries. Every time you use Instacart to shop at Albertsons, Costco, Kroger, and Sprouts Farmers Market, you might be getting ripped off for as much as 23% of the total price:
This isn't some silly-season fake controversy. It's an existential crisis for America's cash-strapped, heavily indebted households, whose lives have been made immeasurably worse by the inflation from Trump's Strait of Epstein disaster. Maryland had the chance to do something to help these people and instead they squandered it, selling out to lobbyists for companies whose bottom line depends on draining the bank accounts of the most desperate people in the state.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
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