Data Protection Archives - Columbia Law Review

Introduction A tight employment market, economic uncertainty, and the rising (and often clumsy) use of artificial intelligence in hiring have coagulated into a witches’ brew of turmoil for job seekers.[footnote]See Jeffry Bartash, Bad, Terrible, Not-So-Good July Jobs Report. Here Are the Gory Details., MarketWatch, https://www.marketwatch.com/livecoverage/july-2025-jobs‑report-today/card/bad-terrible-not-so-good-july-jobs-report-here-are-the-gory-details--aabJOKRMMKEOC17ztBqO (on file with the Columbia Law Review ) (last updated Aug. 1, 2025) (discussing turmoil in the job market and observing a hiring stagnation across almost all industries); Lindsay Ellis & Katherine Bindley, AI Is Wrecking an Already Fragile Job Market for College Graduates, Wall St. J., https://www.wsj.com/lifestyle/careers/ai-entry-level-jobs-graduates-b224d624 (on file with the Columbia Law Review ) (last updated July 29, 2025) (discussing experts’ opinions that AI will lead to a reduction in the workforce, particularly for entry-level workers).[/footnote] Recently, job applicants have been haunted by a new specter rising from the electronification of hiring: “ghost jobs,” or online job listings by real companies advertising positions that do not actually exist or for which there is no present intention to hire.[footnote]See, e.g., Lynn Cook, Fake Job Postings Are Becoming a Real Problem, Wall St. J. (Jan. 12, 2025), https://www.wsj.com/lifestyle/careers/ghost-jobs-2c0dcd4e (on file with the Columbia Law Review ) (describing ghost jobs as “roles that companies advertise but have no intention of filling”); see also Ghost Jobs: Why Do 40% of Companies Advertise Positions that Don’t Exist?, The Guardian (Oct. 30, 2024), https://www.theguardian.com/money/2024/oct/30/ghost-jobs-why-do-40-of-companies-advertise-positions-that-dont-exist [https://perma.cc/JW9T-X7UL] [hereinafter Ghost Jobs] (describing ghost jobs as employment listings in which “a company advertises a job that isn’t real”); Grzegorz Kubera, Beware the Rise of ‘Ghost Jobs’—Fake Job Openings With No Intent to Hire, CIO (Nov. 25, 2024), https://www.cio.com/article/3610861/beware-the-rise-of-ghost-jobs-fake-job-openings-with-no-intent-to-hire.html [https://perma.cc/R66D-74MB] (“Ghost jobs are open positions published by companies with no intention of hiring for them.”); Darian Woods & Wailin Wong, What Are “Ghost Jobs”?, NPR (June 14, 2024), https://www.npr.org/2024/06/14/nx-s1-5001857/ [https://perma.cc/Y88C-FZ89] (distinguishing ghost jobs from “scams” and explaining that ghost jobs are “job ads where the employer is real, but they might never fill the position”). The terms “ghost jobs” and “fake jobs” are often used interchangeably. See, e.g., Aliss Higham, ‘Ghost Jobs’ Are on the Rise, Newsweek (July 16, 2024), https://www.newsweek.com/ghost-jobs-rise-1924351 [https://perma.cc/T4KH-VAY7].[/footnote] Some ghost jobs are limited to passive résumé collection, while others truly commit to the ruse by staging fake screening calls and interviews.[footnote]See, e.g., Ghost Jobs, supra note 2 (discussing survey results showing that “85% of companies that contacted applicants regarding their fake jobs say they also fake-interviewed them”); Robin Ryan, Be Careful of Employers Posting Ghost Jobs, Forbes (Nov. 30, 2022), https://www.forbes.com/sites/robinryan/2022/11/30/be-careful-of-employers-posting-ghost-jobs/ [https://perma.cc/258V-T6LQ] (providing an anecdote in which an apparent ghost-job advertisement resulted in a recruiter phone screening).[/footnote]

Ghost jobs are not simply apparitions conjured up by the collective angst of frustrated job applicants. There is mounting evidence that the use of ghost jobs is growing, in large part because of the low costs associated with creating online job advertisements.[footnote]See Hunter Ng, Why Is It So Hard to Find a Job Now? Enter Ghost Jobs 7 (Oct. 29, 2024) (unpublished manuscript), https://arxiv.org/pdf/2410.21771 [https://perma.cc/RF9E-FMF5] (“A salient reason driving the increase in ghost jobs is the minimal marginal cost to employers in posting a new job on top of existing job postings.” (citation omitted) (citing Manudeep Bhuller, Domenico Ferraro, Andreas R. Kostøl & Trond C. Vigtel, The Internet, Search Frictions and Aggregate Unemployment (Nat’l Bureau of Econ. Rsch., Working Paper No. 30911, 2023), https://www.nber.org/system/files/working_papers/w30911/w30911.pdf [https://perma.cc/AFK9-UMTZ])); see also Kubera, supra note 2 (describing how “the phenomenon of ‘ghost jobs’ is growing rapidly” and “becoming increasingly common”).[/footnote] One employment research firm compared the number of job postings to hiring data and determined that “the rate of hires per job posting has essentially halved over the past five years,” dropping from eight to four hires for every ten job listings between 2019 and 2024.[footnote]Anuz Thapa, Ghost Jobs: What the Rise in Fake Job Listings Says About the Current Job Market, CNBC (Aug. 22, 2024), https://www.cnbc.com/2024/08/22/ghost-jobs-why-fake-job-listings-are-on-the-rise.html [https://perma.cc/3FZQ-CRTD] (last updated Sep. 19, 2025) (citing data from Revelio Labs).[/footnote] Another 2024 survey of hiring managers found that forty percent of their respective companies had advertised ghost jobs in the past year, and that three in ten companies had active ghost-job postings at the time of the survey.[footnote]3 in 10 Companies Currently Have Fake Job Postings Listed, Resume Builder, https://www.resumebuilder.com/3-in-10-companies-currently-have-fake-job-posting-listed/ [https://perma.cc/LDB4-U9JM] (last updated June 18, 2024) [hereinafter Fake Job Survey]. The survey covered 1,641 hiring managers. Id.[/footnote] An additional study that applied large language models and artificial intelligence to data gleaned from the employment site Glassdoor concluded that “up to 21% of job postings” on the site could be ghost jobs.[footnote]Ng, supra note 4, at 5.[/footnote] Yet another recent study that examined internal data by the Greenhouse jobs platform found that ghost jobs could amount to one in five active postings on its site.[footnote]Cook, supra note 2 (discussing a study of internal data by Greenhouse).[/footnote] One company in the résumé-coaching business even claims to have recently identified 1.7 million “potential ghost job[s]” on LinkedIn.[footnote]AJ Dellinger, Job Boards Are Still Rife With ‘Ghost Jobs’. What’s the Point?, BBC (Mar. 19, 2024), https://www.bbc.com/worklife/article/20240315-ghost-jobs-digital-job-boards [https://perma.cc/J8J6-AUX3] (internal quotation marks omitted) (quoting Geoffrey Scott, Senior Content Manager & Hiring Manager, Resume Genius).[/footnote]

The use of ghost jobs is, at its core, unethical. Ghost jobs manipulate the emotions and waste the time and money of jobseekers, who may already be in vulnerable positions.[footnote]See, e.g., Eira May, The Ghost Jobs Haunting Your Career Search, Stack Overflow Blog (Dec. 26, 2024), https://stackoverflow.blog/2024/12/26/the-ghost-jobs-haunting-your-career-search/ [https://perma.cc/26Z5-MHQ3] (“People waste energy and time applying for [ghost jobs], following up with hiring managers who aren’t actually hiring, and preparing for interviews that aren’t going to happen. That’s exhausting and demoralizing.”).[/footnote] Ghost jobs may reduce the ability of employers to fill real positions by injecting distrust into the hiring system and deterring talented candidates from applying to legitimate job listings.[footnote]See Tom Starner, Why It Might Be Time to Reassess Using ‘Ghost Jobs’, HR Exec. (Aug. 26, 2024), https://hrexecutive.com/why-it-might-be-time-to-reassess-using-ghost-jobs/ [https://perma.cc/MPJ9-A87V] (arguing that the use of ghost jobs produces distrust, which can “backfire” for recruiters and “do more harm than good for employers’ chances of capturing top candidates”).[/footnote] They may magnify unemployment by so discouraging job seekers that they drop out of the labor market altogether.[footnote]See Ng, supra note 4, at 17 (explaining that “ghost jobs contribute to job search fatigue, increased application costs, and potentially longer periods of unemployment”); see also Kevin Jiang, Can’t Find Work Despite the So-Called Labour Shortage? You Might Be Applying for ‘Ghost Jobs’, Toro. Star (Dec. 20, 2023), https://www.thestar.com/business/cant-find-work-despite-the-so-called-labour-shortage-you-might-be-applying-for-ghost/article_fddc8be8-9e95-11ee-b725-53206ac285b4.html (on file with the Columbia Law Review ) (last updated Feb. 7, 2025) (“In some cases, [ghost jobs] can cause [candidates] to pause their job search or stop looking for work altogether.” (internal quotation marks omitted) (quoting Tony Abbis, Lab. Mkt. Specialist, WorkLink Emp. Soc’y)).[/footnote] Ghost jobs can even corrupt the economic data that inform critical nationwide policy decisions, such as the size and timing of federal interest rate cuts.[footnote]See Ng, supra note 4, at 17 (“The distortion caused by ghost jobs can lead to inaccurate labor market indicators, affecting empirical studies and policy decisions based on these metrics.”); see also May, supra note 10 (explaining the view that ghost jobs can distort the data underlying the Job Openings and Labor Turnover Survey published by the U.S. Bureau of Labor Statistics); Thapa, supra note 5 (“The rise of ghost jobs is muddying the jobs report . . . [and] making it harder for the Fed to make decisions and understand what the labor market looks like[] . . . .” (internal quotation marks omitted) (quoting Dan Kaplan, Senior Partner, Korn Ferry)); Darian Woods, Wailin Wong, Julia Ritchey & Kate Concannon, Ghost Jobs, NPR (June 7, 2024), https://www.npr.org/2024/06/07/1197965117/ghost-jobs [https://perma.cc/EQ89-DBPW] (“[Ghost jobs are] also a problem for the Federal Reserve when it tries to figure out how much slack there is in the labor market, and whether to raise or lower interest rates.”).[/footnote]

Why do companies advertise ghost jobs? While doing so would seem to waste everyone’s time, companies that post ghost jobs are driven by a variety of incentives. Perhaps the most benign is the desire to build a talent pipeline that can be drawn on in times of need.[footnote]See, e.g., Kubera, supra note 2 (“A job listing alone can help a company build a potential talent base to draw on for the future . . . .”).[/footnote] A less savory motivation for posting ghost jobs is to project growth and strength to investors and the market.[footnote]See Jack Kelly, If You Thought the Job Search Was Rigged Against You, Here’s Why You’re Not Wrong, Forbes (Feb. 13, 2024), https://www.forbes.com/sites/jackkelly/2024/02/13/if-you-thought-the-job-search-was-rigged-against-you-heres-why-youre-not-wrong/ [https://perma.cc/M7W2-UNLW] (explaining that companies may post ghost jobs to “create the illusion that the company is doing well and growing”); Rachelle Winter, The Rise of Ghost Jobs: Ethical and Legal Considerations for Employers, Harv. Res. Sols. (July 7, 2025), https://www.hrsus.com/2025/07/07/the-rise-of-ghost-jobs-ethical-and-legal-considerations-for-employers/ [https://perma.cc/RTY2-3G5P] (noting a desire to project growth and boost company reputation as an incentive to post ghost jobs).[/footnote] One survey of hiring managers revealed that some companies “believe advertising nonexistent [job] openings has a positive impact on their revenue by making it appear like their company is growing faster than it is.”[footnote]Jennifer Liu, 4 in 10 Companies Say They’ve Posted a Fake Job This Year—What That Actually Means, CNBC (June 27, 2024), https://www.cnbc.com/2024/06/27/4-in-10-companies-say-theyve-posted-a-fake-job-this-year-what-that-means.html [https://perma.cc/L8MU-FN8Z] (describing the results of a survey by Resume Builder).[/footnote] Companies may also use ghost jobs to manipulate existing staff both to create the perception that help is coming to overworked employees and to compel higher performance by reminding them that they are replaceable.[footnote]See Fake Job Survey, supra note 6 (finding that, among other reasons, “[c]ompanies posted fake job listings . . . to make employees believe their workload would be alleviated by new workers” and “to have employees feel replaceable”).[/footnote] Ghost jobs can also allow companies to gain market insight and competitive intelligence by reaping information from résumés and sham interviews.[footnote]See, e.g., Kelly, supra note 15 (“Companies can gain a sense of the marketplace by posting phantom jobs. By the responses, they can determine how much money their competitors offer . . . .”).[/footnote] More nefarious data-mining operations that target sensitive consumer data may also be afoot.[footnote]See Jair Abrego Cubilla, The Hidden Dangers of Ghost Job Positions: A Data Privacy and InfoSec Specialist’s Perspective, Medium (Sep. 27, 2024), https://medium.com/@jairabregoc/the-hidden-dangers-of-ghost-job-positions-a-data-privacy-and-infosec-specialists-perspective-ae4fb1fa3462 [https://perma.cc/5XXJ-8H7A] (“Ghost job postings . . . are . . . use[d] for unethical practices like data mining. These positions collect resumes, gather data, and use the information to build databases, without any intention of hiring.”).[/footnote]

Legislatures in New Jersey,[footnote]See Assemb. B. 4625, 221st Leg., Reg. Sess. (N.J. 2024). Among other things, the New Jersey bill provides, “An employer who publicly advertises a job posting shall include in the posting . . . a statement disclosing whether the posting is for an existing vacancy or not . . . .” Id. § 1(a). The bill would also require job postings to be removed from the internet once the advertised position is filled. Id. § 1(b)(1).[/footnote] California,[footnote]Pending legislation introduced in California in February 2025 would require employers to disclose whether a job listing is for a vacancy. Assemb. B. 1251, 2025–2026 Leg., Reg. Sess. (Cal. 2025).[/footnote] and the province of Ontario, Canada,[footnote]In May 2024, the Ontario government announced a host of employment market reforms, including a proposal to “require larger employers to disclose in publicly advertised job advertisements whether a job vacancy exists or not.” Press Release, Ministry of Lab., Immigr., Training & Skills Dev., Ont. Gov’t, Ontario Helping Jobseekers and Cracking Down on Exploitative Employers (May 3, 2024), https://news.ontario.ca/en/release/1004527/ontario-helping-jobseekers-and-cracking-down-on-exploitative-employers [https://perma.cc/2XAD-FYL8]. This disclosure provision and other amendments to the Employment Standards Act are scheduled to take effect on January 1, 2026. See Employment Standards Act, S.O. 2000, c. 41 (Can.).[/footnote] have made some initial progress toward combating ghost jobs. But these are exceptions,[footnote]Legislation addressing ghost jobs, even when introduced by state legislatures, has not always been successful. In January 2025, the Kentucky legislature introduced a bill that would have banned employers from advertising ghost jobs in the state. The bill failed to progress. See H.B. 57, 2025 Leg., Reg. Sess. (Ky. 2025).[/footnote] and the U.S. Congress has not taken any action to address ghost jobs as of this writing. Indeed, it is a common refrain that advertising ghost jobs is not prohibited in the United States.[footnote]See, e.g., Steven Chung, Should Governments Crack Down on Fake Job Postings?, Above the L. (May 22, 2024), https://abovethelaw.com/2024/05/should-governments-crack-down-on-fake-job-postings/ [https://perma.cc/SAV4-LDMH] (“Currently, no laws ban or regulate the use of ghost jobs.”); see also Patricia Parnet, Ghost Jobs: The Mystery of Fake Job Ads, Medium (Feb. 21, 2024), https://patriciaparnet.medium.com/ghost-jobs-the-mystery-of-fake-job-ads-571f5e270d55 [https://perma.cc/C52Y-QYGC] (writing that the ghost-jobs phenomenon “almost seems like fraud or deception,” but is “often simply accepted and not questioned”).[/footnote] This Piece challenges that notion, arguing that while federal legislation may not be on the horizon, the FTC’s consumer protection enforcement powers offer an existing, ready, and potent measure to combat ghost jobs.[footnote]The author is aware of one source suggesting that ghost jobs “may violate federal consumer protection law” as enforced by the FTC. See Elizabeth Weber Handwerker & Alexander H. Pepper, Cong. Rsch. Serv., IF12977, “Ghost” Job Postings (2025),https://www.congress.gov/crs_external_products/IF/PDF/IF12977/IF12977.2.pdf [https://perma.cc/DW7B-23QA]. Labor economist Elizabeth Handwerker and attorney Alexander Pepper claim that “[t]he harms to consumers from ghost job postings, while real, are less direct and quantifiable than when an applicant is defrauded or deceptively induced to work.” Id. This Piece argues, instead, that ghost jobs can facilitate severe pecuniary harms (including identity theft–based fraud), infringe on personal privacy and dignity, and distort the financial metrics on which nationwide economic policies rely. See infra section III.A; see also supra note 13 and accompanying text.[/footnote]

This Piece has three Parts. Part I describes the modern social contract as a system of bargains in which personal data is knowingly exchanged for a particular benefit. Ghost jobs breach this arrangement by violating consumers’ reasonable expectations of what they will receive in exchange for their personal data. Part II outlines the FTC’s enforcement powers over unfair and deceptive consumer practices. Part III identifies three enforcement theories that the FTC could (and should) draw upon to oust ghost jobs from the online hiring market: deceptive object fraud, false impressions, and uninformed consent.

I. Contract and Consent The wrongfulness of ghost jobs is not (entirely) due to the false hope they inflict on job seekers. Rather, ghost jobs are an ethical affront because they reflect a new evolution in the use of deceit to erode individual privacy. The deception runs deep, making ghost jobs difficult to avoid or prove: They tend to prey on vulnerability through trickery and insinuation, rather than direct misrepresentation. The range of sensitive information that ghost jobs can obtain through sleight of hand is vast, as job applications often request personal data concerning “gender, sexual orientation, ethnicity, veteran status, physical disabilities and other sensitive topics.”[footnote]Mary J. Hildebrand, Job Applicants, Diversity Data, and Privacy Compliance Under the GDPR: What You Need to Know., Lowenstein Sandler LLP (May 13, 2022), https://www.lowenstein.com/news-insights/publications/articles/job-applicants-diversity-data-and-privacy-compliance-under-the-gdpr-what-you-need-to-know [https://perma.cc/M8KR-BFCN].[/footnote]

Such data extraction, of course, typically happens only after a job applicant has clicked through a thicket of ubiquitous “privacy contracts,” online terms of service, and data-collection notices that clot the firmament of our digital world. These devices are not written to be read,[footnote]See, e.g., Ari Ezra Waldman, Privacy, Notice, and Design, 21 Stan. Tech. L. Rev. 74, 83 (2018) (“[I]t seems that today’s privacy policies are not designed with readability, comprehension, and access in mind.”).[/footnote] but rather to obtain consent, that modern talisman against privacy torts and regulatory violations.[footnote]See, e.g., Daniel J. Solove, Murky Consent: An Approach to the Fictions of Consent in Privacy Law, 104 B.U. L. Rev. 593, 596 (2024) (“Consent is a golden ticket: it provides tremendous power to collect, use, and disclose data. . . . Consent legitimizes activities that would otherwise be illegitimate, immoral, or illegal.”); see also Gary Burkhardt, Frederic Boy, Daniele Doneddu & Nick Hajli, Privacy Behaviour: A Model for Online Informed Consent, 186 J. Bus. Ethics 237, 238 (2023) (“Consent . . . possesses ‘moral force’: it can transform a wrong into a right and it has the ethical power to recast the normative expectations that exist between individuals.” (citation omitted) (citing Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121 (1996))); Daniel J. Solove, Introduction: Privacy Self-Management and the Consent Dilemma, 126 Harv. L. Rev. 1880, 1880 (2013) [hereinafter Solove, Consent Dilemma] (“Consent legitimizes nearly any form of collection, use, or disclosure of personal data.”).[/footnote] While not all ghost jobs rely on standard privacy agreements, most do.[footnote]It is important to remember that ghost jobs are posted by real companies and, in that sense, are distinct from scams. See Woods & Wong, supra note 2. Just like advertisements for real jobs, ghost jobs tend to come with standard-issue privacy contracts, data-use notices, and the like.[/footnote]

The prevalence of privacy contracts speaks not just to our litigious nature but to a recognition, glowing like a faint ember beneath the ash of daily “clickwrap” agreements,[footnote]Jonathan A. Obar & Anne Oeldorf-Hirsch, The Clickwrap: A Political Economic Mechanism for Manufacturing Consent on Social Media, Soc. Media & Soc’y, July–Sep. 2018, at 1, 1 (“The clickwrap is a digital prompt that facilitates consent processes by affording users the opportunity to quickly accept or reject digital media policies.”).[/footnote] that personal data is valuable and should be handled with care. Clicking through a privacy contract before selecting “agree” on a credit card offer, a new social media account, or a job application can force a reminder that something of value—indeed, “we are our data”[footnote]Kristene Unsworth, The Social Contract and Big Data, 25 J. Informational Ethics 83, 85 (2016); see also Neil Richards & Woodrow Hartzog, Taking Trust Seriously in Privacy Law, 19 Stan. Tech. L. Rev. 431, 434 (2016) (“[T]he exploitation of personal data is an enormous source of value . . . .”).[/footnote]—is being given in trade.[footnote]As one account provides, “Real people don’t read standard form contracts. Reading is boring, incomprehensible, alienating, time consuming, but most of all pointless. We want the product, not the contract.” Omri Ben-Shahar, The Myth of the ‘Opportunity to Read’ in Contract Law, 5 Eur. Rev. Cont. L. 1, 2 (2009).[/footnote] This arrangement has become a critical norm underlying the digital economy: A company “provides something of value . . . in exchange for something from a consumer that is also of value, namely personal data.”[footnote]Paul M. Schwartz, Property, Privacy, and Personal Data, 117 Harv. L. Rev. 2055, 2071 (2004) (emphasizing the commodification of personal information in the context of software contracts).[/footnote]

While internet users may not read the terms of a privacy notice before granting their consent to proceed,[footnote]See Ben-Shahar, supra note 32, at 2.[/footnote] they certainly believe that performing this ritual is a condition precedent to receiving some benefit. Job applicants share personal information with employment sites because they reasonably believe that a deal is being made: some slice of personal privacy in exchange for the possibility, however remote, of obtaining employment.[footnote]See Kirsten Martin, Understanding Privacy Online: Development of a Social Contract Approach to Privacy, 137 J. Bus. Ethics 551, 562 (2016) (describing “a social contract approach to privacy” in which “rules around discriminately sharing information take into consideration the possible benefits to the individual []such as . . . employment”).[/footnote] As in numerous other contexts, this exchange of personal data for other forms of value has become a bedrock of the modern social contract.[footnote]This situation should not be viewed as wholly negative. See, e.g., Kevin E. Davis & Florencia Marotta-Wurgler, Contracting for Personal Data, 94 N.Y.U. L. Rev. 662, 672 (2019) (“The benefits and costs of data transfers do not only accrue to the transferor and the transferee. For instance, society clearly benefits if the transferee will use the data to generate innovations that will be widely disseminated at relatively low charge.”).[/footnote]

As ghost jobs fail to confer any benefit in return for applicants’ personal data, job seekers unknowingly part with their data without a reciprocal gain. Indeed, they incur a loss , measured not in dollars but in their control over, and the privacy of, their personal data. Job seekers would almost surely not consent to such disclosures had they not been deceptively induced by the prospect of a chance at employment.[footnote]This blunt statement captures the reality well: “Workers who apply for jobs assume that employers are looking to fill the jobs.” Ng, supra note 4, at 2.[/footnote] While “[c]onsent is the master concept that defines the law of contracts in the United States,” it “must be informed or knowledgeable in some meaningful sense if we are to accord it legal or moral significance.”[footnote]Peter H. Schuck, Rethinking Informed Consent, 103 Yale L.J. 899, 900 (1994).[/footnote] Since ghost jobs offer no possibility of employment, whatever use is actually made of applicant data is beyond job seekers’ reasonable expectations and outside the modern social contract for digital life.[footnote]See Martin, supra note 35, at 559 (claiming that the use of personal data for a purpose that is not reasonably expected can “breach the terms of use within the social contract”).[/footnote] No privacy notice can cure this dynamic.

As of this writing, Congress has not addressed ghost jobs, and the prospect of successful litigation by job applicants is remote.[footnote]See, e.g., Danielle Keats Citron & Daniel J. Solove, Privacy Harms, 102 B.U. L. Rev. 793, 816–17 (2022) (noting that “when it comes to private litigation, for each individual, bringing a lawsuit for a small harm is not worth the time or resources” and arguing that “[c]lass actions . . . are an imperfect vehicle to address privacy problems”).[/footnote] This leaves redress in the hands of the regulatory system, specifically the FTC, which has long functioned as “the nation’s chief federal privacy and information security enforcer.”[footnote]Terrell McSweeny, FTC 2.0: Keeping Pace With Online Platforms, 32 Berkeley Tech. L.J. 1027, 1037 (2017).[/footnote] As two leading privacy scholars wrote a decade ago, “In the future, the FTC can be . . . bolder,” drawing upon its privacy jurisprudence, to “push more toward focusing on consumer expectations than on broken promises[] [by] mov[ing] beyond the four corners of privacy policies [and] into design elements and other facets of a company’s relationships with consumers.”[footnote]Daniel J. Solove & Woodrow Hartzog, The FTC and the New Common Law of Privacy, 114 Colum. L. Rev. 583, 676 (2014).[/footnote] Ghost jobs offer the FTC an ideal opportunity to realize this potential.

II. Unfairness and Deception Section 5(a)(1) of the Federal Trade Commission Act (FTC Act) provides that “unfair or deceptive acts or practices in or affecting commerce[] are . . . unlawful.”[footnote]15 U.S.C. § 45(a)(1) (2018).[/footnote] The FTC Act empowers the FTC “to prevent” the use of such devices.[footnote]Id. § 45(a)(2).[/footnote] The Agency’s jurisdiction to do so is expansive, with a recent Director of Consumer Protection remarking that the FTC’s “consumer protection mission . . . covers almost the entire economy.”[footnote]Samuel Levine, Dir., Bureau of Consumer Prot., FTC, Believing in the FTC, Remarks at the Harvard Journal of Law & Technology Symposium: Beyond the FTC: The Future of Privacy Enforcement 1, 2 (Apr. 1, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/Remarks-to-JOLT-4-1-2023.pdf [https://perma.cc/ZWE2-EQKM].[/footnote] In crafting the FTC Act’s unfairness and deception provisions, Congress intended to provide the FTC with “the authority to determine what practices stand out as unfair or deceptive, even as those practices evolve over time.”[footnote]Andrew D. Selbst & Solon Barocas, Unfair Artificial Intelligence: How FTC Intervention Can Overcome the Limitations of Discrimination Law, 171 U. Pa. L. Rev. 1023, 1049 (2023).[/footnote]

Of the FTC Act’s two consumer-protection theories, deception has played the leading role in FTC enforcement actions.[footnote]Id. at 1049–50 (explaining that in the wake of amendments to the FTC Act in 1994 that limited the Agency’s authority to bring unfairness actions, “the FTC has focused much more on deception than on unfairness”). But note that unfairness and deception are interlinked such that “it is not always possible to ‘completely disentangle the two theories.’” Daniel J. Grimm, The Dark Data Quandary, 68 Am. U. L. Rev. 761, 797 (2019) (quoting Fed. Trade Comm’n v. Wyndham Worldwide Corp., 799 F.3d 236, 245 (3d Cir. 2015)).[/footnote] The FTC may bring a claim under the deception prong of section 5(a) “if there is a representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.”[footnote]Letter from James C. Miller III, Chairman, FTC, to John D. Dingell, Chairman, Comm. on Energy & Com., U.S. House of Representatives (Oct. 14, 1983) [hereinafter FTC Policy Statement on Deception], reprinted in Cliffdale Assocs., Inc., 103 F.T.C. 110 app. at 176 (1984) (decision and order).[/footnote] Inherent in these elements are the concepts of materiality and injury, which the FTC has described as functionally the same for purposes of section 5(a).[footnote]Id. at 183.[/footnote] As the FTC has explained, “Injury exists if consumers would have chosen differently but for the deception. If different choices are likely, the claim is material, and injury is likely as well. Thus, injury and materiality are different names for the same concept.”[footnote]Id.[/footnote]

Unfairness, the other consumer-protection prong of section 5(a), resists “precise definition” and reflects “an evolutionary process” designed to avoid the need to “draft[] a complete list of unfair trade practices that would . . . quickly become outdated or leave loopholes for easy evasion.”[footnote]Letter from Michael Pertshuck, Chairman, FTC, Paul Rand Dixon, Comm’r, FTC, David A. Clanton, Comm’r, FTC, Robert Pitofsky, Comm’r, FTC & Patricia P. Bailey, Comm’r, FTC, to Wendell H. Ford, Chairman, Consumer Subcomm., Comm. on Com., Sci., & Transp., U.S. Senate, & John C. Danforth, Ranking Minority Member, Consumer Subcomm., Comm. on Com., Sci., & Transp., U.S. Senate (Dec. 17, 1980) [hereinafter FTC Policy Statement on Unfairness] (quoting Fed. Trade Comm’n v. Raladam Co., 283 U.S. 643, 648 (1931)), reprinted in Int’l Harvester Co., 104 F.T.C. 949 app. at 1072 (1984) (decision and order).[/footnote] The FTC can declare a practice to be unfair if it “is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”[footnote]15 U.S.C. § 45(n) (2018).[/footnote] This formula reflects an expectation that markets are normally “self-correcting” but that “regulatory intervention” is necessary when consumers are prevented “from effectively making their own decisions.”[footnote]FTC Policy Statement on Unfairness, supra note 51, app. at 1074.[/footnote]

Ghost jobs fall squarely within the FTC’s authority to civilly prosecute deceptive and unfair consumer practices. Past enforcement actions offer guidance for invoking section 5(a) of the FTC Act to address the ghost-jobs phenomenon. The following Part draws on past FTC jurisprudence to identify three enforcement theories that can be directed at ghost jobs: deceptive object fraud, false impressions, and uninformed consent.

III. FTC Enforcement A. Deceptive Object Fraud A group of FTC enforcement actions addressing what this Piece calls “deceptive object fraud” offers an approach that could be readily applied to ghost jobs. Deceptive object fraud involves schemes in which the object of consumer inducement is not just misleadingly characterized but often entirely illusory. The FTC has in several cases charged companies with deceptive acts or practices in violation of section 5(a) of the FTC Act for using a deceptive object to separate consumers from their money. Ghost jobs are just a new iteration of this same scheme, in which companies dangle the deceptive object—a chance, however small, to obtain employment—before jobseekers to induce them to disclose their personal data, instead of deceiving them into opening their wallets.

In 2019, the FTC sued a group of purported employment-search firms and their common owner for misconduct that closely resembles the modern ghost-job phenomenon. In FTC v. Worldwide Executive Job Search Solutions , the FTC alleged that a group of companies and its owner engaged in deceptive acts or practices in violation of section 5(a) of the FTC Act by marketing “bogus job placement and resume repair services, duping consumers out of millions of dollars.”[footnote]Complaint for Permanent Injunction and Other Equitable Relief at 4–5, Fed. Trade Comm’n v. Worldwide Exec. Job Search Sols., LLC, No. 4:19-cv-495 (S.D. Tex. Oct. 8, 2019), https://www.ftc.gov/system/files/documents/cases/craig_chrest_complaint_2-25-19.pdf [https://perma.cc/9ZQZ-EV4N] [hereinafter Worldwide Executive Complaint]. In addition to asserting charges for deceptive consumer acts or practices under section 5(a) of the Act, the FTC alleged that the defendants violated the Telemarketing Act, 15 U.S.C. §§ 6101–6108. Id. at 13–14.[/footnote]

To execute their fraud, the defendants in Worldwide Executive “use[d] social media platforms like LinkedIn to identify consumers with marketing, business, or management experience.”[footnote]Id. at 5.[/footnote] Defendants then sent them solicitations about prospective job openings, “represent[ing] that the consumer’s work experience qualifies the consumer for an unadvertised executive or managerial job that pays a substantial salary.”[footnote]Id.[/footnote] Then, after suggesting that the consumer was “a top candidate” for the job, defendants required payment of “an advance recruiting fee” to proceed with an interview.[footnote]Id. at 9. The defendants also sold fraudulent job-placement services. Id.[/footnote]

After the fee was paid, defendants conducted sham telephone interviews and thereafter told the candidates “that the employer had a change of business plans and opted not to hire” for the role.[footnote]Id. at 10.[/footnote] In some cases, the Worldwide Executive defendants established “a shell entity” to pose as an actual business seeking employees.[footnote]Id.[/footnote] In other cases, the defendants advertised jobs with “a real company,” but for which “the purported job and the alleged hiring partner do not exist.”[footnote]Id.[/footnote] In nearly all cases, the FTC alleged, “[T]here is no potential job, the job interview is a charade, and Defendants have not been engaged by an employer to fill job openings that match consumers’ experiences or resumes.”[footnote]Id.[/footnote]

The FTC charged the Worldwide Executive defendants with, among other things, engaging in deceptive acts or practices in violation of section 5(a) of the FTC Act.[footnote]Id. at 12–13.[/footnote] The core of the FTC’s deception charge was that the defendants falsely “represented, directly or indirectly, expressly or by implication,” that they were recruiting for real employment openings and that applicants who paid defendants’ fees were “likely to obtain a highly paid executive position.”[footnote]Id. at 12.[/footnote] These representations were false, defrauding victims of the money they spent on defendants’ purported recruiting and résumé-repair services.[footnote]Id. at 4–5, 10–11.[/footnote] In the end, the defendants settled the case by agreeing to pay a $1.7 million fine and being permanently enjoined from selling employment-related services to consumers.[footnote]Press Release, FTC, FTC Puts an End to Bogus Job Placement and Resume Repair Scheme (Oct. 8, 2019), https://www.ftc.gov/news-events/news/press-releases/2019/10/ftc-puts-end-bogus-job-placement-resume-repair-scheme [https://perma.cc/W8GY-V53A]. All but eighteen thousand dollars of the judgment was suspended due to defendants’ inability to pay. Id.[/footnote]

The FTC has brought other cases involving deceptive objective fraud that can help chart a path toward wielding the FTC Act against ghost jobs. In 2017, the FTC charged Credit Bureau Center, LLC, its principal, and others with deceptive acts and practices under section 5(a) of the FTC Act for a scheme that used fake online rental property listings to induce consumers into signing up for recurring credit-monitoring fees.[footnote]See Complaint for Permanent Injunction and Other Equitable Relief at 4, Fed. Trade Comm’n v. Credit Bureau Ctr., LLC, No. 17-cv-00194 (N.D. Ill. Aug. 30, 2023), https://www.ftc.gov/system/files/documents/cases/170118myscore_complaint_filed.pdf [https://perma.cc/4DPW-58JE] [hereinafter Credit Bureau Complaint].[/footnote] Similar to Worldwide Executive , the object of inducement in FTC v. Credit Bureau was illusory, as “[t]he advertised properties either do not exist, or are properties that Defendants have no authority to offer for rent.”[footnote]Id. at 5.[/footnote]

To ensnare victims, the Credit Bureau defendants posted false rental properties online and then responded to inquiries from would-be tenants with emails from purported landlords that instructed applicants to obtain free credit scores and reports from defendants’ websites before touring properties.[footnote]Id. at 6–7.[/footnote] Once consumers obtained their credit information, they would “find it impossible to schedule the promised tour of the rental property . . . because the original rental ad and the landlord email are fake.”[footnote]Id. at 13.[/footnote] What consumers did not know was that in obtaining their “free” credit information from defendants, they were “automatically signed up for a negative option seven-day trial of the Credit Bureau Center Defendants’ credit monitoring service,” which, “unless consumers discover[ed] and [took] affirmative steps to cancel,” charged consumers $29.94 each month.[footnote]Id. at 12–13.[/footnote]

Misrepresentations were central to the FTC’s deception charges against the Credit Bureau defendants. Most significant were the defendants’ false statements that “a residential property described in an online ad is currently available for rent from someone consumers can contact through that ad.”[footnote]Id. at 14–15.[/footnote] Following litigation, the defendants were ordered to pay $1.9 million in fines, which the FTC distributed to injured consumers.[footnote]Press Release, FTC, FTC Sends Refunds to Consumers Harmed by Credit Bureau Center’s Fake Rental Property Ads and Deceptive Promises of “Free” Credit Reports (Nov. 21, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/11/ftc-sends-refunds-consumers-harmed-credit-bureau-centers-fake-rental-property-ads-deceptive-promises [https://perma.cc/SZP3-DX7F].[/footnote]

A final case relevant to the deceptive-object theory discussed here is FTC v. Roomster Corp. [footnote]Complaint for Permanent Injunction, Monetary Relief, and Other Relief at 2–3, Fed. Trade Comm’n v. Roomster Corp., No. 1:22-cv-7389 (S.D.N.Y. Aug. 28, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/Roomster%20Complaint.pdf [https://perma.cc/4JF8-BEUF] [hereinafter Roomster Complaint].[/footnote] In Roomster , the FTC, along with California, Colorado, Florida, Illinois, Massachusetts, and New York, charged Roomster and its executives with operating a rental-property scam that resembled the facts of Credit Bureau . The Roomster scheme revolved around “an internet-based room and roommate finder platform.”[footnote]Id. at 2.[/footnote] To generate interest in their listings, the defendants were alleged to have “inundated the internet with tens of thousands of fake positive reviews to bolster their false claims that properties listed on their Roomster platform are real, available, and verified.”[footnote]Id.[/footnote] In reality, advertisements on the platform were often “fake” and designed to induce customers to “pay for access to rental information that is unverified and, in many instances, does not exist.”[footnote]Id. at 3.[/footnote] After paying defendants’ fees, consumers would “soon learn that the listings that drove them to the Roomster Defendants’ platform do not exist.”[footnote]Id. at 16.[/footnote]

The FTC charged the Roomster defendants with performing a deceptive act or practice under section 5(a) of the FTC Act based on allegations that they “represented, directly or indirectly, expressly or by implication, that the listings on their Roomster platform are verified, authentic, or available.”[footnote]Id. at 18.[/footnote] In addition to other federal claims under the FTC Act, the state plaintiffs added thirteen charges based on state consumer-protection and antifraud laws.[footnote]Id. at 18–28.[/footnote] When the dust settled, the defendants had entered into a global settlement that included more than $36 million in equitable relief and $10.9 million in civil penalties payable to the state plaintiffs.[footnote]Press Release, FTC, FTC, State Partners Secure Proposed Order Banning Roomster and Owners From Using Deceptive Reviews (Aug. 28, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/08/ftc-state-partners-secure-proposed-order-banning-roomster-owners-using-deceptive-reviews [https://perma.cc/F2ST-XQF7]. The settlement provided that the monetary relief would be deemed satisfied by a payment of $1.6 million in light of the defendants’ inability to pay the full amount. Id.[/footnote]

Ghost jobs reflect a new link in the chain of deceptive conduct that previously manifested in Worldwide Executive , Credit Bureau , and Roomster . The schemes are largely identical: In each case, a deceptive object—be it an illusory job or a place to live that is not actually available—is dangled before consumers to induce them to part with something of value. The tools used to execute the deception are also similar. Ghost jobs, for instance, are known to reside in suspended animation on employment websites, never to be filled, just as the fake rental listings in Roomster never seemed to result in occupancy.[footnote]See Roomster Complaint, supra note 73, at 9–10 (explaining that an “undercover investigation” found that a “fake listing” on the platform “remained active for several months”); see also May, supra note10 (“Legitimate job postings appear and disappear when they’re filled, but ghost jobs . . . just keep hanging around.”).[/footnote] Fake phone screens and interviews of the sort alleged in Worldwide Executive are also common fare in contemporary ghost jobs.[footnote]See Worldwide Executive Complaint, supra note 54, at 10.[/footnote]

Yet despite the commonality with prior deceptive object frauds, ghost jobs reveal two evolutions in digital skullduggery. First, many ghost jobs naturally possess credibility, which the defendants in Worldwide Executive , Credit Bureau , and Roomster connived to manufacture, using devices such as shell companies that masqueraded as real employers,[footnote]Id.[/footnote] fake landlords,[footnote] Credit Bureau Complaint, supra note 66, at 13.[/footnote] and false rental listing reviews.[footnote] Roomster Complaint, supranote 73, at 2.[/footnote] While the conduct at issue in the three FTC cases reflects scams, ghost jobs are promoted by real, known companies that also engage in bona fide hiring. This makes ghost jobs difficult to identify and hard to avoid because they often emerge from a place of credibility: well-known employers that serious job applicants would consider.[footnote]See Woods & Wong, supra note 2 (explaining that ghost jobs are posted by real companies).[/footnote] The inherent credibility and consumer trust that naturally attaches to many companies that advertise ghost jobs arguably makes such activity more pernicious than the scams at issue in Worldwide Executive , Credit Bureau , and Roomster . Job seekers who may be unlikely to fall for the brand of common scams at issue in the three FTC cases may nonetheless fail to suspect known, legitimate employers of “breaking bad”[footnote]This reference, of course, is a nod to the AMC television series of the same name, which showcased the character of Walter White, a “mild-mannered high school chemistry teacher” who became “the much-feared king of meth production in the Southwest and ultimately the world.” Paul A. Cantor, Pop Culture and the Dark Side of the American Dream: Con Men, Gangsters, Drug Lords, and Zombies 90 (2019). Breaking Bad supplies an apt metaphor for companies that offer legitimate employment opportunities while at the same time deceptively promoting ghost jobs.[/footnote] by advertising jobs that do not actually exist.

Ghost jobs possess an additional feature that distinguishes them from prior FTC enforcement actions. While the defendants in Worldwide Executive , Credit Bureau , and Roomster sought to extract money from consumers, ghost jobs are often designed to syphon up consumers’ personal data.[footnote]See Cubilla, supra note 19 (“Ghost job postings aren’t just an inconvenience for job seekers; they are part of a deeper issue that many companies use for unethical practices like data mining.”).[/footnote] Ghost jobs thus reflect an evolution in grift that reflects the shifting value propositions of the digital age. Rather than obtain money directly, ghost jobs target personal data, which “have value in an economically meaningful sense.”[footnote]Diane Coyle & Annabel Manley, What Is the Value of Data? A Review of Empirical Methods, 38 J. Econ. Survs. 1317, 1318 (2024); see also Schwartz, supra note 33, at 2056 (“Personal information is an important currency in the new millennium. The monetary value of personal data is large and still growing, and corporate America is moving quickly to profit from this trend.”).[/footnote] The value of personal data is amplified in the big data era, which offers an ever-growing array of tools to extract “unascertained patterns, links, behaviors, trends, identities, and practical knowledge” from data.[footnote]Anita L. Allen, Protecting One’s Own Privacy in a Big Data Economy, 130 Harv. L. Rev. Forum 71, 71 (2016), https://harvardlawreview.org/forum/vol-130/protecting-ones-own-privacy-in-a-big-data-economy/ [https://perma.cc/G3FC-XHJ3]. Professor Anita Allen also writes, “Individuals invisibly contribute to Big Data whenever they live digital lifestyles or otherwise participate in the digital economy, such as when they . . . apply for a job online . . . .” Id.[/footnote] The acquisition of personal data can also produce risks of unpredictable scope, as cybersecurity and hacking events create the potential for identity theft and other follow-on harms that are distinct from the initial data harvesting.[footnote]See, e.g., Jordan Brensinger, Identity Theft, Trust Breaches, and the Production of Economic Insecurity, 88 Am. Socio. Rev. 844, 859 (2023) (discussing the Equifax data breach of 2017 and the resulting exposure of personal information).[/footnote] Identity theft, in turn, can “profoundly affect individual well-being and access to opportunity,” including by producing financial insecurity.[footnote]Id. at 845, 853.[/footnote]

More importantly, the illegitimate acquisition and use of personal data can wound privacy and personal dignity, which can far exceed the impact of traditional monetary scams. Personal privacy supports “the promotion of liberty, autonomy, selfhood, and human relations,” and it advances “the existence of a free society.”[footnote]Ruth Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 423 (1980).[/footnote] Privacy has also been described as “fundamental to the maintenance of human dignity” and as “the boundary to one’s personhood.”[footnote]William S. Brown, Technology, Workplace Privacy and Personhood, 15 J. Bus. Ethics 1237, 1243 (1996).[/footnote] It is “the last defense against the examination of the intimate details of self by the external world.”[footnote]Id. at 1244.[/footnote] The FTC, with jurisprudence that “has become the broadest and most influential regulating force on informational privacy in the United States,”[footnote]Solove & Hartzog, supra note 42, at 585–86.[/footnote] is called to defend these virtues by directing its section 5(a) enforcement authority toward ghost jobs.

B. False Impressions Government inaction on the ghost-jobs phenomenon—and the popular perception that no laws prohibit ghost jobs—may be fueled by a cloak of ambiguity that can make it difficult to identify a particular job listing as a ghost job. Recognizing a ghost job can be particularly difficult because affirmative misrepresentations are unlikely to appear in the job advertisement. Rather, ghost jobs trick through omission, failing to disclose that no job vacancy is available and that the purpose of collecting applicant data is for some reason other than assessing suitability for employment. But the absence of an affirmative misrepresentation is no armor against legal liability, and the FTC has brought many section 5(a) cases against deceptive or unfair consumer practices without relying on misstatements.[footnote]See, e.g., Complaint for Permanent Injunction and Other Equitable Relief at 1, 5, Fed. Trade Comm’n v. Forms Direct, Inc., No. 3:18-cv-06294 (N.D. Cal. Dec. 7, 2018), https://www.ftc.gov/system/files/documents/cases/aic_complaint_10-16-18.pdf [https://perma.cc/3ZKU-FUNQ] [hereinafter Forms Direct Complaint] (bringing a section 5(a) action against a deceptive website that did not commit an affirmative misrepresentation).[/footnote]

As the FTC staff recently explained, “[W]hat a company fails to disclose . . . may be just as significant as what it promises.”[footnote]Staff in the Off. of Tech., AI Companies: Uphold Your Privacy and Confidentiality Commitments, FTC: Tech. Blog (Jan. 9, 2024), https://www.ftc.gov/policy/advocacy-research/tech-at-ftc/2024/01/ai-companies-uphold-your-privacy-confidentiality-commitments [https://perma.cc/P8BL-N77G].[/footnote] The FTC “can and does bring actions against companies that omit material facts that would affect whether customers buy a particular product—for example, how a company collects and uses data from customers.”[footnote]Id.[/footnote] Ghost jobs—which use material omissions to induce consumers into providing their personal data—neatly fall into this paradigm.

In FTC v. Forms Direct, Inc. , the FTC sued a group of companies and their owner for a “deceptive scheme” to induce consumers to purchase immigration and naturalization form services “from websites that falsely create the impression of an affiliation with the U.S. government.”[footnote] Forms Direct Complaint, supra note 97, at 1.[/footnote] The FTC’s Complaint alleged that it was the presentation of defendants’ website and advertisements—rather than any affirmative misrepresentation—that “tricked consumers into believing” that defendants’ websites were official government sites, and that the fees paid to defendants were actually government filing fees for immigration and naturalization services.[footnote]Id. at 1, 5.[/footnote]

The FTC alleged in Forms Direct that defendants’ website “designs have implied” and “conveyed the impression” that they were government affiliated.[footnote]Id. at 7–8.[/footnote] The crux of the FTC’s case was that the defendants deliberately failed to correct “the false impression” that their websites were affiliated with the government.[footnote]See id. at 7, 20–21.[/footnote] The FTC focused on the sites’ visual display, alleging that they “used images and color schemes”—such as pictures of the Statute of Liberty, the American flag, and the U.S. Capitol, as well as a red, white, and blue palette—to “contribute to the net impression” that the sites were government affiliated.[footnote]Id. at 9.[/footnote]

While the defendants did in fact disclose that their websites were privately owned by identifying their corporate owner, they did so “in small font within the circle of the government-like seal” near the title of the sales page.[footnote]Id.[/footnote] The FTC further alleged that the defendants “placed their purported disclosures on the Sales Websites such that consumers have stated they do not see them.”[footnote]Id. at 15.[/footnote] Viewing the disclosures was not intuitive and required consumers to “scroll down the webpage.”[footnote]Id.[/footnote]

The FTC charged the Forms Direct defendants with two violations of section 5(a) of the FTC Act’s prohibition on deceptive consumer practices.[footnote]Id. at 21.[/footnote] The first charge was based on deceptive marketing, in that the defendants’ websites were not affiliated with the U.S. government despite conveying the false impression that they were.[footnote]Id. at 21–22.[/footnote] The second claim was that the defendants violated section 5(a) by failing to disclose, or to disclose adequately, material terms.[footnote]Id. at 22.[/footnote] The FTC focused on the facts that consumers who purchased the defendants’ services were still required to submit their immigration applications to the U.S. government and that they were still required to pay applicable fees to the government.[footnote]Id.[/footnote] The defendants ultimately settled the action, agreeing to a permanent injunction against unlawful conduct and a $2.2 million penalty, which was used to repay victims of the scheme.[footnote]Press Release, FTC, FTC Sending Refunds Totaling Over $2 Million to Consumers Harmed by Alleged Government Imposter Scheme (Mar. 2, 2020), https://www.ftc.gov/news-events/news/press-releases/2020/03/ftc-sending-refunds-totaling-over-2-million-consumers-harmed-alleged-government-imposter-scheme [https://perma.cc/SF7C-VCEP].[/footnote]

Like the facts of Forms Direct , ghost jobs typically do not include affirmative misstatements. Instead, they exploit the naturally occurring and reasonable belief among job seekers that job advertisements—especially by real, known companies—are intended to fill employment vacancies.[footnote]See Ng, supra note 4, at 2.[/footnote] Moreover, job seekers hold the reasonable belief that personal data they share with purported employers will be used to assess their qualifications and suitability for employment.[footnote]See Kayla Bushey & Saz Kanthasamy, Ghost Jobs: The Phantom Hiring Trend With Data Privacy Implications, IAPP (Dec. 5, 2024), https://iapp.org/news/a/ghost-jobs-the-phantom-hiring-trend-with-startling-data-privacy-implications [https://perma.cc/6GR2-MUTH] (“[I]t is unlikely job applicants have the reasonable expectation their personal data will be processed for any purpose other than consideration for the job listed in the description.”).[/footnote] Nothing on the face of the ghost-job listing will tip off the ruse; indeed, ghost jobs are usually identical to legitimate job advertisements.

Ghost jobs are thus more deceptive than defendants’ misleading websites in Forms Direct , as there is no discernible difference between a ghost job and a real job listing. In Forms Direct , the FTC faulted the defendants for including on their websites difficult-to-find and hard-to-read disclosures that the sites were privately owned rather than affiliated with the government. Ghost jobs, in contrast, offer nothing to alert applicants that a job is not actually available, or that applicants’ personal data will be used for purposes other than assessing their qualifications for an open position. These are material terms that would sway applicants’ decisions to apply to a particular job listing, producing injury when undisclosed.[footnote]See Forms Direct Complaint, supra note 97, at 22; see also FTC Policy Statement on Deception, supra note 48, app. at 183 (finding materiality and consumer injury if a consumer “would have chosen differently but for the deception”).[/footnote] While creating false associations with the federal government may have been of special concern to the FTC, consumers have less protection from ghost jobs than from deceptive websites like those in Forms Direct .

C. Uninformed Consent A trio of FTC enforcement actions targeting the “pervasive extraction and mishandling of consumers’ sensitive personal data” offers further insight into how the FTC could pursue ghost jobs.[footnote]FTC Cracks Down on Mass Data Collectors: A Closer Look at Avast, X-Mode, and InMarket, FTC: Tech. Blog (Mar. 4, 2024), https://www.ftc.gov/policy/advocacy-research/tech-at-ftc/2024/03/ftc-cracks-down-mass-data-collectors-closer-look-avast-x-mode-inmarket [https://perma.cc/W2FZ-ZWLJ]; see also Complaint at 2, Avast Ltd., FTC File No. 2023033, No. C-4805 (F.T.C. June 26, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/Complaint-Avast.pdf [https://perma.cc/3UN2-A8C8] (alleging that Avast Limited violated consumer privacy by collecting and selling browsing data without consent); Complaint at 7, InMarket Media, LLC, FTC File No. 2023088, No. C-4803 (F.T.C. Apr. 29, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/InMarketMedia-Complaint.pdf [https://perma.cc/LPE4-ZEK9] (alleging that InMarket collected and retained consumer location data without notifying users, subjecting them to a likelihood of substantial injury); Complaint at 3–11, X-Mode Soc., Inc., FTC File No. 2123038, No. C-4802 (F.T.C. Apr. 11, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/X-ModeSocialComplaint.pdf [https://perma.cc/RJN9-SQG3] [hereinafter X-Mode Social Complaint] (alleging that X-Mode Social’s business practices exposed consumers to substantial injury caused by the collection, transfer, and use of their location data from visits to sensitive locations). In 2025, the FTC brought a similar action against General Motors involving the use and disclosure of geolocation and other sensitive driver data. See Complaint at 1–10, Gen. Motors LLC, FTC File No. 2423052 (F.T.C. Jan. 16, 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/242_3052_-_general_motors_complaint.pdf [https://perma.cc/8JNJ-B2DE].[/footnote] This section will focus on X-Mode Social, Inc. , which addressed the activity of a data broker engaged in the business of selling sensitive consumer location data.[footnote]See X-Mode Social Complaint, supra note 116. Note that there are two respondents in X-Mode : X-Mode and Outlogic, LLC. Outlogic became the successor in interest to X-Mode. As the FTC complaint refers to both entities together as “X-Mode,” so too does this Piece. See id. at 1.[/footnote] X-Mode primarily obtained location data by paying application developers to include X-Mode’s software in mobile applications that consumers installed on their devices.[footnote]See id. at 2 (alleging that X-Mode obtains consumer location data by incentivizing third-party developers to incorporate X-Mode’s software development kit into their apps).[/footnote]

While X-Mode “disclosed certain commercial uses of consumer location data” that it collected, it nevertheless “failed to inform consumers that it would [also] be selling data to government contractors for national security purposes.”[footnote]Id. at 5.[/footnote] The FTC thus alleged that X-Mode “failed to fully disclose the purposes for which consumers’ location data would be used.”[footnote]Id. at 4.[/footnote] The omitted information was highly sensitive[footnote]See id. at 3 (alleging that personal location data “could be used to track consumers to sensitive locations, including medical facilities, places of religious worship, places that may be used to infer an LGBTQ+ identification, domestic abuse centers, and welfare and homeless shelters”).[/footnote] and thus “material to consumers,” and by failing to disclose the full spectrum of data use, X-Mode “did not obtain informed consent from consumers to collect and use their location data.”[footnote]Id. at 5.[/footnote] Based on these facts, the FTC charged X-Mode with violating both the deception and unfairness strands of section 5(a) of the FTC Act,[footnote]See id. at 9–11 (detailing the violations of the FTC Act).[/footnote] resulting in an order prohibiting it from disclosing or selling sensitive geolocation data and requiring compliance measures involving data-handling and disclosure.[footnote]See Press Release, FTC, FTC Finalizes Order With X-Mode and Successor Outlogic Prohibiting It From Sharing or Selling Sensitive Location Data (Apr. 12, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-finalizes-order-x-mode-successor-outlogic-prohibiting-it-sharing-or-selling-sensitive-location [https://perma.cc/A9BR-6SC7] (“In addition to the ban on selling or sharing sensitive location data, the order also imposes several other requirements on X-Mode/Outlogic including . . . delet[ing] or destroy[ing] all the location data it previously collected . . . unless it obtains consumer consent or ensures the data has been . . . rendered non-sensitive . . . .”).[/footnote]

When compared to the facts of Forms Direct , the allegations in X-Mode put a finer point on the various shades of deception. While in both cases the FTC’s deception claims turn on disclosure failures, the FTC in X-Mode expressly framed the situation in the language of informed consent.[footnote]See Forms Direct Complaint, supra note 97, at 1 (alleging that Forms Direct failed to adequately disclose that its website was not affiliated with the U.S. government, thus deceptively inducing consumers into purchasing its services); see also X-Mode Social Complaint, supra note 116, at 5 (alleging that X-Mode’s failure to disclose important information about data collection and distribution resulted in a failure to obtain informed consent from consumers).[/footnote] This is a subtle but important distinction. As Daniel Solove explains, “[T]he law refrains from restricting transactions that appear on the surface to be consensual, and the law will tolerate a substantial amount of manipulation and even coercion before it deems a transaction to be nonconsensual.”[footnote]Solove, Consent Dilemma, supra note 28, at 1897.[/footnote]

If, as Solove argues, some level of badness is tolerated when consent appears to exist,[footnote]See id. (explaining that, generally, the law does not override consensual activities that may be dangerous).[/footnote] the FTC may have attempted to foreclose this risk to its case in X-Mode by alleging that respondents’ disclosure failures were significant enough to prevent consent from arising in the first place. While consumers agreed to share some data with defendants, they were unaware of the scope of what they were actually giving up and thus could not knowingly consent to it.[footnote]See X-Mode Social Complaint, supra note 116, at 4–5 (“While X-Mode’s consumer notices disclosed certain commercial uses of consumer location data, X-Mode failed to inform consumers that it would be selling data to government contractors for national security purposes.”).[/footnote] As the FTC has explained in the unfair sales context, there are “certain . . . techniques [that] may prevent consumers from effectively making their own decisions” that justify “corrective action” through the FTC’s authority to bring enforcement actions targeting unfair consumer acts or practices.[footnote]FTC Policy Statement on Unfairness, supranote 51, app. at 1074.[/footnote]

In X-Mode , the respondents simply “failed to inform” users of the full extent of how their personal data would be used.[footnote]See X-Mode Social Complaint, supra note 116, at 5.[/footnote] This differs from the situation in Forms Direct , in which the defendants provided disclosures, albeit weak and obscure, that their immigration-related websites were not actually associated with the U.S. government.[footnote]See Forms Direct Complaint, supra note 97, at 20.[/footnote] The presence of disclosures in Forms Direct could have made it difficult to establish that consumers who interacted with defendants’ websites did so without informed consent. Forms Direct , unlike X-Mode , may thus reflect a situation in which the law permits some level of badness in the name of protecting consumer choice and consent,[footnote]See Solove, Consent Dilemma, supra note 28, at 1897 (discussing courts’ tendency to allow a substantial amount of manipulation or coercion before invalidating an agreement on the grounds that it is nonconsensual).[/footnote] which limited the FTC to a deception claim without the additional unfairness charge.

The distinct charging decisions in X-Mode versus Forms Direct can be explained by considering the value of individual autonomy under the law. Informed consent is concerned with “the primacy of human autonomy: people have the right to make decisions for themselves.”[footnote]Burkhardt et al., supra note 28, at 237.[/footnote] Similarly, a section 5(a) unfairness claim requires that the activity at issue be not “reasonably avoidable by consumers.”[footnote]15 U.S.C. § 45(n) (2018).[/footnote] Unfairness claims are “brought, not to second-guess the wisdom of particular consumer decisions, but rather to halt some form of seller behavior that unreasonably creates or takes advantage of an obstacle to the free exercise of consumer decisionmaking.”[footnote]FTC Policy Statement on Unfairness, supra note51, app. at 1074; see also J. Howard Beales, The FTC’s Use of Unfairness Authority: Its Rise, Fall, and Resurrection, FTC (May 30, 2003), https://www.ftc.gov/news-events/news/speeches/ftcs-use-unfairness-authority-its-rise-fall-resurrection [https://perma.cc/R7FS-3DKG] (“If consumers could have made a different choice, but did not, the Commission should respect that choice.”).[/footnote] The FTC Act thus protects consumer choice when relevant information is presented, even to the extent that consumers may make suboptimal decisions or ignore the information they receive. Section 5(a) unfairness claims are brought when that choice is removed or unreasonably inhibited. In contrast, deception claims may be brought when the exercise of consumer choice is impaired, but not foreclosed.

Last, a finding of unfairness under section 5(a) requires an assessment of any countervailing benefits to consumers or competition.[footnote]15 U.S.C. § 45(n).[/footnote] In making this determination, the FTC considers “tradeoffs and will not find that a practice unfairly injures consumers unless it is injurious in its net effects.”[footnote]FTC Policy Statement on Unfairness, supra note 51, app. at 1073.[/footnote] The Agency also considers “the various costs that a remedy would entail,” both to the parties directly involved in the matter as well as “the burdens on society in general.”[footnote]Id.[/footnote] In X-Mode , the FTC found that the “harms” produced by defendants’ data-collection activity “are not outweighed by any countervailing benefits to consumers or competition,” and further that “X-Mode could implement certain safeguards [for consumer privacy] at a reasonable cost and expenditure of resources.”[footnote] X-Mode Social Complaint, supra note 116, at 8.[/footnote]

In returning the analysis to ghost jobs, it is clear that they are closer to the situation in X-Mode than that in Forms Direct . Ghost jobs are, on the surface, indistinguishable from legitimate job postings, such that they rarely, if ever, provide the information necessary for consumers to give informed consent for the collection and use of their data.[footnote]While there are certain indicia that a job listing might be a ghost job, these tells are unlikely to be sufficiently dispositive or recognizable to preserve the exercise of informed consent consistent with prior FTC enforcement actions. See, e.g., May, supra note 10 (explaining that job postings that remain online far longer than would be expected to fill a role could be ghost jobs).[/footnote] Informed consumer choice is thus foreclosed, as in X-Mode , rather than merely impaired, as in Forms Direct . In addition, there is an argument that ghost jobs prey on the vulnerable,[footnote]See Thomas Leary, Unfairness and the Internet, FTC (Apr. 13, 2000), https://www.ftc.gov/news-events/news/speeches/unfairness-internet [https://perma.cc/JPM9-RDNV] (explaining that FTC unfairness cases “often involve practices that prey on particularly vulnerable consumers”). One scholar has recently argued that FTC enforcement in the unfairness context has been evolving to, among other things, “eliminate practices that result in unfair treatment of vulnerable groups or protected classes” by “improving the overall option set rather than attempting to make consumers better at choosing from existing options.” Luke Herrine, Unfairness, Reconstructed, 42 Yale J. on Regul. 95, 128–29 (2025). While this observation is significant, the “shift” Professor Luke Herrine identifies “is still in its early stages and will likely not be much in evidence during the Trump administration.” Id. at 176. Unfairness actions based on impaired l are likely to remain the coin of the realm for the foreseeable future.[/footnote] particularly during dire economic times or periods of high unemployment. This aspect of ghost jobs provides another potential inroad into section 5(a) unfairness claims.[footnote]See Leary, supra note 141.[/footnote]

Finally, like the data-collection activity in X-Mode , ghost jobs offer no countervailing benefit to consumers or competition to balance against the ills they create. Rather, the harm that results from ghost jobs radiates far beyond individual job seekers by corrupting economic data that influences interest rate decisions and other nationwide policy efforts.[footnote]See supra note 13 and accompanying text.[/footnote] Companies that advertise ghost jobs are thus ideal candidates not just for section 5(a) deception claims but for unfairness charges as well.

Conclusion Ghost jobs need not be a modern-day Charon’s obol that must be paid to interact with online job listings. Rather, ghost jobs rely on deceptive and unfair consumer practices that have long been prohibited by section 5(a) of the FTC Act. The time to respond to the ghost jobs “horror show”[footnote]Cook, supra note 2 (internal quotation marks omitted) (quoting Jon Stross, President & Co-Founder, Greenhouse).[/footnote] is now: Doing so will improve an increasingly bleak employment process while counteracting a new threat to consumer privacy.

Ghost jobs have become the scourge of job seekers, and the FTC should take swift action to exorcise them from online hiring platforms. A more enduring solution, however, will integrate private sector efforts with government enforcement. This is an area in which the interests of private sector “good actors” overlap with the FTC’s consumer protection mandate. Already, some online job platforms have made initial forays into identifying and addressing likely ghost jobs on their platforms.[footnote]See id. (“Greenhouse and LinkedIn recently have begun tagging job listings as verified to give workers better information amid the rash of ghost listings.”).[/footnote] Additional private sector efforts—perhaps motivated by protecting corporate reputations and the need to attract and retain talented personnel[footnote]See, e.g., Ana Junça Silva & Herminia Dias, The Relationship Between Employer Branding, Corporate Reputation and Intention to Apply to a Job Offer, Int’l J. Org. Analysis, Dec. 18, 2023, at 1, 2 (explaining that “employer branding and corporate reputation are key elements in attracting and retaining the best employees”).[/footnote]—can join the FTC in improving the online hiring landscape.