Blind Spot: The Attention Economy and the Law

Human attention is a resource. An increasingly large and important sector of the economy, including firms such as Google, Facebook, Snap, along with parts of the traditional media, currently depend on attentional markets for their revenue. Their business model, however, present a challenge for laws premised on the presumption of cash markets. This paper introduces a novel economic and legal analysis of attention markets centered on the “attention broker,” the firms that attract and resell attention to advertisers. The analysis has important payouts for two areas: antitrust analysis, and in particular the oversight of mergers in high technology markets, as well as the protection of the captive audiences from so-called “attentional theft.