By: Louis Naiman
On February 24th the Federal Trade Commission (“FTC”) announced that it plans to hold a workshop to explore the phenomena of dark patterns.[1] Coined by Harry Brignull in 2010, dark patterns are “user interface design choices that benefit an online service by coercing, steering, or deceiving users into making unintended and potentially harmful decisions.”[2] In recent years, dark patterns have garnered increased attention from computer scientists, journalists, and politicians.[3] As the federal government’s general consumer privacy enforcement agency, the FTC arguably possesses the power to address dark patterns through a variety of legal remedies including the FTC Act, the Children’s Online Privacy Protection Act, and the CAN-SPAM Act.[4]
Brignull’s website Darkpatterns.org identifies twelve types of basic dark patterns.[5] One is the Roach Motel, a tactic designed to trap consumers by making it easy to sign up for a subscription or service, but difficult to cancel or withdraw from that subscription.[6] Another is Privacy Zuckering, designed to convince consumers to publicly share more information than they originally intended.[7] Brignull also categorized the Disguised Ad as a dark pattern.[8]Masquerading as news stories or product reviews, this advertisement misleads consumers by pretending to be sources of independent information rather than content paid for by companies selling their products.[9]
In its workshop announcement, the FTC listed several agenda topics, including how dark patterns differ from the sales tactics of brick-and-mortar stores, their effect on consumers, and whether some groups of consumers are disproportionately vulnerable to dark patterns.[10] The agency also will examine what laws, rules, and norms regulate dark patterns and whether additional standards are needed to protect consumers.[11] The discussion on this final question, about the appropriate legal authority to address dark patterns, may be the most significant topic at the workshop.[12]There are several existing proposals that may provide guidance.
Introduced in the 116th Congress, the bipartisan DETOUR Act prohibits the use of dark patterns.[13] Designed primarily as a means to regulate large technology platforms, the bill bans large online operators from “design[ing], modify[ing] or manipulat[ing] user interface with the purpose or substantial effect of obscuring, subverting, or impairing user anatomy, decision making, or choice to obtain consent or user data.”[14] The bill would establish a professional standards body to govern the use of online interfaces, create independent review boards to review applications for psychological experiments, and grant the FTC Administrative Procedure Act rulemaking authority to implement the legislation.[15] This bill potentially shifts away from the FTC’s deception and unfairness authority under Section 5 of the FTC and towards a standard prohibiting the use of manipulative online interfaces. The distinction between manipulation and effective marketing is unclear but may be linked to the provision on user consent.
The recently passed California Privacy Rights Act similarly addresses the regulation of dark patterns. The CPRA defines dark patterns as “a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice, as further defined by regulation.”[16] The law states that consent received through the use of dark patterns is not considered valid consent.[17] Unlike the DETOUR Act, which was not enacted, the CPRA will go into effect in 2022 and requires the state attorney general to promulgate regulations to further the scope of the law.[18] The language in the statute seems to move away from a prohibition on deceptive or unfair acts or practices that would be most advantageous to address dark patterns under current federal law, in favor of a general prohibition on dark patterns. Like the DETOUR Act, the CPRA will likely be discussed during the FTC’s workshop as part of an ongoing conversation about online conduct and the proper limits on tactics aimed at manipulating, if not deceiving, consumers.
[1] Press Release, Fed. Trade Comm’n, FTC to Hold Virtual Workshop Exploring Digital “Dark Patterns” (Feb. 24, 2021), https://www.ftc.gov/news-events/press-releases/2021/02/ftc-hold-virtual-workshop-exploring-digital-dark-patterns [hereinafter Workshop Announcement].
[2] Arunesh Mathur et al., Dark Patterns at Scale: Findings from a Crawl of 11K Shopping Websites, 3 CSCW Art. 81, 1 (2019), https://arxiv.org/pdf/1907.07032.pdf.
[3] See Eric Ravenscraft, How to Spot—and Avoid—Dark Patterns on the Web, Wired (July 29, 2020), https://www.wired.com/story/how-to-spot-avoid-dark-patterns/; see also Stephanie Thien Hang Nguyen, When Politicians Play Web Designers, Wired (Sept. 25, 2019), https://www.wired.com/story/when-politicians-play-web-designers/.
[4] Fed. Trade Comm’n, A Brief Overview of the Federal Trade Commission’s Investigative, Law Enforcement, and Rulemaking Authority (Oct. 2019), https://www.ftc.gov/about-ftc/what-we-do/enforcement-authority.
[5] Types of Dark Patterns, Darkpatterns.org, https://www.darkpatterns.org/types-of-dark-pattern (last visited Feb. 28, 2021).
[6] Roach Motel, Darkpatterns.org, https://www.darkpatterns.org/types-of-dark-pattern/roach-motel (last visited: Feb. 28, 2021).
[7] Privacy Zuckering, Darkpatterns.org, https://www.darkpatterns.org/types-of-dark-pattern/privacy-zuckering (last visited: Feb. 28, 2021).
[8] Disguised Ads, DarkPatterns.org, https://www.darkpatterns.org/types-of-dark-pattern/disguised-ads (last visited: Feb. 28, 2021).
[9] Id.
[10] Workshop Announcement, supra note 1.
[11] Id.
[12] See id.
[13] Press Release, Office of Sen. Deb. Fischer, Senators Introduce Bipartisan Legislation to Ban Manipulative ‘Dark Patterns’, (Apr. 9, 2019), https://www.fischer.senate.gov/public/index.cfm/2019/4/senators-introduce-bipartisan-legislation-to-ban-manipulative-dark-patterns.
[14] Deceptive Experiences to Online Users Reduction Act (DETOUR Act), S. 1084, 116th Cong. (2019).
[15] Id.
[16] Cal. Civ. Code § 1798.140 (West 2022).
[17] Id.
[18] Id.
