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123 W. Va. L. Rev. 873 (2020-2021)
Algorithms in Business, Merchant-Consumer Interactions, & Regulation

handle is hein.journals/wvb123 and id is 903 raw text is: ALGORITHMS IN BUSINESS, MERCHANT- CONSUMER INTERACTIONS, & REGULATION Tabrez Y. Ebrahim* Abstract The shift towards the use of algorithms in business has transformed merchant-consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In so doing, algorithms raise new theoretical considerations on information asymmetry and power imbalances in merchant-consumer interactions and multiply existing biases and discrimination or create new ones in society. Against this backdrop of the concentration of algorithmic decision- making in merchants, the traditional understanding of consumer protection is overdue for change, and normative debate about fairness, accountability, and transparency and interpretive considerations for non-discrimination is necessary. The theory that notice and choice in data protection laws and * Associate Professor of Law, California Western School of Law; Visiting Associate Professor, University of California, San Diego; Ostrom Visiting Scholar (Program on Data Management and Information Governance) & Affiliate (Program on Cybersecurity and Internet Governance), Indiana University (Bloomington); Visiting Fellow, University of Nebraska (Lincoln): Nebraska Governance & Technology Center; Thomas Edison Innovation Fellow & Leonardo da Vinci Fellow, George Mason University Antonin Scalia Law School; Visiting Scholar, University of California, Los Angeles School of Law; Registered U.S. patent attorney; J.D., Northwestern University Pritzker School of Law; M.B.A., Northwestern University Kellogg School of Management; LL.M., University of Houston Law Center; Graduate Entrepreneurship Certificate, Stanford Graduate School of Business; M.S. Mechanical Engineering, Stanford University School of Engineering; B.S. Mechanical Engineering, University of Texas at Austin Cockrell School of Engineering. I am grateful for helpful comments and suggestions from Kevin D. Ashely, Emile Loza de Siles, Deven Desai, Anjanette Raymond, Janine Hiller, Kimberly A. Houser, John Bagby, Keith Porcaro, Nivan Elkin-Koren, Nicole Iannarone, Jeff Lingwall, Kevin Webrach, and Jad Salem. Thanks to the following forums for presenting this Article and their participants for insightful comments: 2021 Data Law & Ethics Research Workshop; West Virginia Law Review Symposium: Artificial Intelligence and the Law; and Examining Institutional Structures: Race, Business and the Law with the University of Iowa College of Law: Innovation, Business, and Law (IBL) Center. 873