Warner, Blunt Rochester to Reintroduce Dark Patterns Bill
Senate Intelligence Committee Chairman Mark Warner, D-Va., and Rep. Lisa Blunt Rochester, D-Del., will reintroduce legislation banning large online platforms from using deceptive designs “to trick consumers” into offering personal data, they told an FTC virtual workshop on dark patterns Thursday (see 2104090042).
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States have adopted similar measures, said Warner. If Congress continues to fail to act, the FTC should set a regulatory structure to try to protect consumers and prohibit deceptive practices through its FTC Act Section 5 authority, he added. The Deceptive Experiences to Online Users Reduction (Detour) Act would create a “professional standards body” registered to the FTC outlining best practices.
The agency needs to develop a comprehensive understanding and action plan on deception by design, said acting Chairwoman Rebecca Kelly Slaughter. For companies that might be listening, she said, “if you have to resort to design tricks” to obtain consumers’ consent or track them, “you ought to think twice about your business model and how your design choices align with principles of honesty.”
Many dark patterns are illegal under FTC Act Section 5 and state laws on unfair and deceptive acts, said acting FTC Consumer Protection Bureau Director Daniel Kaufman. Enforcers will continue to be aggressive, but the scale and sophistication of dark patterns present regulatory challenges, he added. The agency is carefully considering all options, including additional rules, policy statements and enforcement guidance, he said: “Nothing is off the table.”
Commissioner Rohit Chopra cited several “tools” the agency can use to combat dark patterns, including issuing interpretive rules for defining illegal dark patterns; enlisting whistleblowers and complainants; and increasing enforcement of laws like the FTC Act, the Can-Spam Act and the Restore Online Shoppers' Confidence Act. “Big Tech knows so much about our lives and can use this data to deploy undetectable dark patterns that are uniquely designed to deceive us,” he tweeted.
Certain apps make it difficult to cancel subscriptions before the end of a free trial, said Blunt Rochester: This is about protecting consumers, who might end up locked into a subscription they don’t want and are unable to cancel. Companies like Facebook and Twitter shouldn’t manipulate users in a way that wouldn’t be permitted for any other company “of good standing,” she said. She noted that the CEOs of Facebook, Google and Twitter appeared before the House Commerce Committee earlier this month. They wouldn’t provide any meaningful commitment to stop such practices (see 2103250069), so Congress needs to act, she said.
Social media companies will fight legislative action because it gets at the heart of how their sites gain more users, garner more information and sell it at market, said Warner. There’s nothing objectively wrong with that, but Congress needs to ensure consumers aren’t tricked into giving up information due to dark patterns, he said.