In this report by The Cut, policy experts—including Fordham Law Professor Zephyr Teachout, author of “Break ‘Em Up: Recovering Our Freedom from Big Ag, Big Tech, and Big Money”—share their advice on how to spot surveillance pricing and fight it when it happens.
Try to plan ahead.
Zephyr Teachout, an attorney and professor at Fordham University who specializes in antitrust law, points out that you’re more likely to be targeted with higher prices if you seem to be in a rush. “If you order a car service to go to a hospital, you might pay more than if you were going to a restaurant, because you’re presumably in a hurry,” she says. “Or, if your order history shows that you frequently pay for express delivery, your vibe is haste, and your prices might be higher.”
Of course, all of this is enraging. “There’s a gross feeling of unfairness when you’re paying a different price for the same product, because you’re being profiled and targeted,” says Teachout. “You don’t need to be an economist to see how it’s the seller exploiting its position of power, and the vast amount of intimate data points they have about people, to rip them off.”
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Make a stink — publicly.
“Complain,” says Teachout. “If you suspect you’ve been targeted by surveillance pricing, go to Reddit or wherever you post and share your story.” Public outrage is a powerful force, especially against large retailers who rely on their reputation to treat customers fairly. Nearly every time that a company has been publicly exposed for using exploitative pricing practices — for instance, when Coca-Cola put thermometers in its vending machines that made sodas more expensive on a hot day — customers have revolted, and the company has backtracked.
Even if you can’t prove you actually were profiled, it doesn’t hurt to speak up. “You might be wrong, but why not make the company prove that?” says Teachout. “We’re all living in a state of rational paranoia, and it creates this fog around pricing. We all deserve more transparency.”
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Push lawmakers to do something about it.
Ultimately, the onus should not be on the individual to fight surveillance pricing. “Besides writing about it publicly, tell your attorney general,” says Teachout. “The solution is policy, both at the federal and state level.” There are both federal and state laws that prohibit unfair or deceptive acts, and one could argue — as Teachout does — that surveillance pricing falls under this definition. “It functionally screws people over because of imbalances of power. And the core of personalized pricing is that a seller has a billion points of data on you that they can use to your disadvantage. It’s an unfair practice.”
Finally, Teachout believes that surveillance pricing could also be interpreted as a type of unlawful price gouging. Current laws bar retailers from jacking up prices when there’s some kind of major incident — for instance, stores in New York were prohibited from “charging excessive prices” for PPE and rubbing alcohol at the outset of the pandemic. “Existing price-gouging laws require a trigger — a declaration of emergency, or some other market disruption,” says Teachout. “Otherwise, companies are free to raise or lower prices based on demand.” But she believes that surveillance pricing is a different version of price gouging, on an individual level. “The trigger is not something that happens in the larger world. It’s that your baby is throwing up,” she explains. “I think it’s illegal.” Maybe the federal government won’t do anything about it, for now, but your state government might.
Read “Surveillance Pricing Is Ripping You Off. Here’s How to Fight It.” on The Cut.
