Author: Nita Farahany Source: https://nitafarahany.substack.com/p/the-laws-that-miss-the-point Published: January 30, 2026
A Substack essay by Nita Farahany, published January 30, 2026, written as Class 2.3 of her Advanced Topics in AI Law and Policy course and closing the Week 2 module on attention. The essay surveys four legal regimes that touch the attention-capture problem and argues that each addresses an upstream or downstream effect rather than attention itself, leaving what it characterizes as a structural doctrinal gap.
Summary of argument
Farahany takes four bodies of law that currently bear on platform engagement design and argues that none recognizes a user's attention as a protected interest in its own right. Each regime, on her account, was built for a different problem — data, deception, concentration, or access — and so captures only a slice of the attention-capture problem. She concludes that closing the gap requires either radically extending an existing regime, which she says courts have so far refused to do, or building a new doctrine of cognitive liberty or attention rights.
Key claims
Privacy law, on Farahany's reading, addresses inputs rather than capture. The GDPR and CCPA regulate data collection, not what platforms do with that data to engineer engagement. A platform that minimized data collection could still build maximally engagement-extracting interfaces from the data it does have.
Consumer protection addresses deception rather than design. FTC Section 5 reaches false statements and unfair practices that cause "substantial injury" without offsetting benefits. Farahany argues that most attention-capture design is not deceptive, since users can see the infinite scroll, and is not easily characterized as "unfair" because it produces value alongside harm.
Competition law addresses concentration rather than effect. The EU's Digital Services Act and Digital Markets Act constrain large platforms' market power but do not require them to design less engagement-maximizing products. Breaking up Meta, in her example, would not change the design incentives of the smaller platforms that result.
Constitutional law, she argues, cuts the wrong way. Packingham v. North Carolina (2017) recognized a right to access social media, and the NetChoice cases protect platforms' editorial discretion. Neither recognizes a user's interest in not being captured.
Farahany frames the resulting doctrinal gap as structural. Each of the four regimes was built for a different problem — data, deception, concentration, access — and none was built for the attention-capture problem, so the remedy is either a radical extension of an existing regime or a new doctrine of cognitive liberty and attention rights.
Provenance
The essay is Class 2.3 of roughly 30 in Farahany's Advanced Topics course and closes the Week 2 attention module. It follows Inside My Advanced Topics Class 2.2: The Attention Evidence Gap (Farahany, January 2026) and precedes Inside My Advanced Topics Class 3: 20 Clicks to Cancel (Farahany, February 2026).
Relationships
- part-of: Nita Farahany Advanced Topics course (Class 2.3 of ~30)
- related: Cognitive Liberty, Three Privacy Problems AI Creates
- previous: Inside My Advanced Topics Class 2.2: The Attention Evidence Gap (Farahany, January 2026) next: Inside My Advanced Topics Class 3: 20 Clicks to Cancel (Farahany, February 2026)