Incognito Consumer Harm
Abstract
What good is a legal system built for visible injuries in a world where injury is designed to be invisible? This Article identifies and theorizes incognito consumer harm: consumer-facing wrongdoing designed to remain unnoticed by most victims. A robot vacuum cleaner covertly records video inside consumers’ homes. A seemingly helpful browser extension records everything users do on the internet. A dating app quietly retains photo IDs it promised to delete. Because consumers cannot readily detect these harms, the law’s ordinary enforcement triggers rarely fire: victims do not complain, lawyers are not retained, and regulators receive no report. Thus, discovery of incognito consumer harm depends more on leaks, hacks, whistleblowers, and other accidents than on routine enforcement mechanisms.
Incognito consumer harm matters for three reasons. First, it exposes a structural weakness in U.S. consumer protection. Both public and private enforcement depend on the victims’ awareness, but courts cannot litigate the invisible and agencies do not routinely audit products for concealed design choices. Second, it highlights a diagnosis-cure mismatch in the literature. Even when scholars describe “invisible” harms, they often propose remedies that assume detection, such as procedural reforms, bans, and enhanced damages, even though incognito harm is designed precisely to prevent detection. Third, modern technology makes concealment scalable, continuous, and embedded in everyday products. As AI increases firms’ appetite for granular and intimate data, the payoff to undiscoverable extraction only grows.
This Article argues that incognito consumer harm requires fundamental reform, not marginal tweaks, because existing law fails doubly. It is not built to surface invisible injuries and, even when misconduct is exposed, doctrine often fails to recognize concealed risk, loss of control, and informational deprivation as cognizable harms. Without detection-first reform, the status quo persists. We learn about hidden misconduct only when systems are breached or insiders come forward—in effect, relying on wrongdoers to expose wrongdoing.
