Where’s the Consumer Harm? The BOTS Act: A Fruitless Boogeyman Hunt

Zachary S. Sturman · 22 Vand. J. Ent. & Tech. 951

Abstract

Historically, the secondary-ticket market for sporting events, concerts, and the like entailed hollering scalpers perched outside of venues. Though this practice has not been entirely extinguished, the internet has largely moved the secondary-ticket market online to websites like StubHub, the largest player in this arena. Instead of yelling loudest or finding the best real estate outside a stadium from which to perch, the modern ticket scalper competes most effectively in the secondary-ticket market by finding ways to access primary tickets online. By using ticket “bots,” programs designed to autofill customer information and solve CAPTCHA prompts, modern scalpers can quickly purchase large quantities of tickets from primary-market sites like Ticketmaster. The goal of the modern scalper is the same as the goal of the hollering scalper of the past: to resell these tickets for a marked-up price.

States have responded to modern bots-based ticket resales with the whole gamut of legislation, ranging from no regulation, to disallowing online ticket bots, to wholesalers banning ticket resale altogether. Congress upended states’ disparate approaches in 2016 with the enactment of the Better Online Ticket Sales (BOTS) Act, which effectively prohibits the use of bots for online ticket resale and charges the Federal Trade Commission (FTC) with its enforcement. The problem, however, is that the BOTS Act attacks a nonexistent boogeyman. Neither ticket bots nor the modern scalper creates marked-up ticket prices in the secondary market; consumer demand does. Moreover, consumers have no right to attain underpriced tickets. On the flip side, performers and sports teams have every right to set prices as they see fit. Every day, the FTC prosecutes bad actors who defraud the elderly of their savings, deliberately fool consumers into believing falsehoods about a product (like sham dietary supplements), and trick people into believing celebrities endorse scam-centered products. These are legitimate consumer harms. Purchasing tickets—with full information and disclosures—on the secondary market at prices higher than one wishes to pay is not the sort of fraudulent activity that the FTC should be forced to police as “consumer protection.” Accordingly, this Note argues that the BOTS Act should be repealed or, at a minimum, removed from the FTC’s consumer-protection apparatus.