Consumer Privacy in a Behavioral World

In 2017, Congress repealed the FCC’s latest attempt to protect consumer privacy on the internet and allowed ISPs to continue to track their users’ online behavior. We evaluate the impact of this decision on consumer privacy in light of biased beliefs and information overload. We do so through a well-documented behavioral bias: Non-belief in the Law of Large Numbers. In doing so, we provide a framework for deciding why and how to protect consumer privacy. We then suggest private law and regulatory solutions to do so in a more effective way than either the current or the now-repealed regime.