WASHINGTON — Tech companies sometimes lure users into signing up for a service or sharing information they might not otherwise have consented to by using subtle tactics and marketing on their websites and apps, like surveys that seek personal information or designs , which hide privacy settings.
But these practices — commonly referred to as “dark patterns” — are coming under increasing scrutiny from the federal government.
Virginia Senator Mark Warner (D) joined with a group of bipartisan lawmakers from the House and Senate on legislation known as DETOUR Act trying to ban these practices.
Meanwhile, the Federal Trade Commission, the government’s consumer protection agency, has announced it will step up enforcement of dark patterns, which are already illegal and can trick consumers into subscribing. The FTC too announced this month that it will undertake a major overhaul of its overarching digital advertising guidelines.
“For years, dark patterns have allowed social media companies to use deceptive tactics to convince users to provide personal information without understanding what they are consenting to,” Warner said in an email. “The DETOUR Act will end this practice while working to provide a degree of transparency and oversight that the tech world currently lacks.”
“Consumers should be able to make their own informed choices about when to share personal information without having to navigate intentionally misleading interfaces and design features provided by social media companies,” Warner said.
While the name “dark patterns” sounds daunting, Internet users have likely encountered them on legitimate websites.
Website designs that manipulate users may include intentionally obfuscated unsubscribe buttons, pop-ups urging users not to leave the platform, and countdown checkout timers that create a false sense of urgency to purchase items .
Other practices include signing up for trial services that unknowingly enroll users in a subscription that is then difficult to cancel, surveys or quizzes that collect data without telling people, obfuscating privacy settings on social media platforms and websites that ask a question that leads to a spate of marketing emails.
A 2019 Princeton University study scanned 11,000 shopping websites and found instances of dark patterns on 11 percent of the websites. The more popular shopping sites tended to have darker patterns, according to the study.
“Social media companies often trick users into giving away their personal information — everything from their thoughts and fears to their likes and dislikes — which they then sell to advertisers. These practices are designed to exploit people; not to better serve them,” Imran Ahmed, CEO of the Center for Countering Digital Hate, said in a statement. The group supports the DETOUR Act to try to stop the practice.
Last fall, the Federal Trade Commission released a new one Enforcement Policy to ramp up its response to illegal dark patterns that “trick or trap” consumers into subscription services. It came in response to a growing number of complaints of financial damage from fraudulent signups and automatic renewals, which lure consumers into ongoing subscriptions that are nearly impossible to cancel.
“Over the years, unfair or deceptive negative option practices have remained a persistent source of consumer harm, often charging shoppers with recurring payments for products and services they did not or did not want to purchase,” the FTC wrote in its 15-page statement.
The FTC guidance states that businesses should disclose subscriptions “clearly and conspicuously” and honor requests for cancellation. An FTC spokesman said the agency is still working on enforcement and has no new updates.
Ban dark patterns
The Reduction of Deceptive Experiences for Online Users Act, or DETOUR Act, would go further to give the FTC more power to crack down on dark patterns by setting new limits on how the largest online companies can market and solicit information.
In particular, the legislation would limit how internet companies with over 100 million monthly users could request information, to prevent them from tricking users into giving out their personal information.
The bill says companies cannot use any interface that has the “substantial effect” of preventing users from making informed decisions. They couldn’t enroll users in behavioral experiments without consent or develop compulsive experiences, like autoplaying videos aimed at children.
“This legislation provides regulators with a bolster to better protect themselves from fraudulent and exploitative practices that are rampant in many large technology companies and have an outsized impact on children and underserved communities,” said Colin M. Gray, associate professor at Purdue University studying human-computer interaction.
A bipartisan group of lawmakers from the House and Senate are pushing the issue. In the Senate, Warner is joined by Sens. Deb Fischer (R-Neb.), Amy Klobuchar (D-Minn.) and John Thune (R-SD). On the House side, Democrat Lisa Blunt Rochester of Delaware and Republican Anthony Gonzalez of Ohio are the co-sponsors. The House Energy and Commerce Committee and the House Judiciary Committee have had multiple hearings on the issue.
But even with bipartisan support, the bill would face a difficult path in the Senate, where Warner would have to get every Democrat and at least nine other Republicans to support it.
The legislation is supported by the American Psychological Association and two major groups working to keep children safe online, Fair Play and Common Sense.
“The DETOUR Act is an important step in curbing Big Tech’s unfair design choices that manipulate users into acting against their own best interests. We are particularly pleased with the provision prohibiting designs that encourage compulsive use in children,” said Josh Golin, Fairplay executive director, in a statement.