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Protocol | Policy

Regulators have a new tech target: Dark patterns that dominate the web

Washington wants to crack down on the deceptive designs that trick people into making decisions online.

Regulators have a new tech target: Dark patterns that dominate the web

Dark patterns can trick people into making decisions they don't want to online, regulators say.

Image: Getty Images

Kat Zhou didn't sound like a typical tech emissary sent to defend her industry's honor as she spoke Thursday at a virtual event hosted by the Federal Trade Commission. Instead, the Spotify designer delivered a scathing rebuke of the sector explaining how tech companies motivate their employees to build deceptive products in the name of growth. The only way to stop them, she said, is with regulation.

"The pursuit of growth is so baked into our industry that we not only regularly lobby against policies that regulate our growth, but we have also crafted processes of working that emphasize and prioritize growth," Zhou said, adding that employee reviews and raises in the industry are regularly tied to growth metrics.

Unless tech firms are regulated, Zhou said, these deceptive design practices known as "dark patterns" are "not going away any time soon."

In the tech industry, Zhou might be a lonely voice in the wilderness. But at the FTC event, which was focused on tackling the issue of dark patterns online, she had a receptive audience.

Academics, lawmakers, regulators and advocates at the day-long event discussed the pervasive use of dark patterns — subtle design cues and obstructive tactics that trick people into making decisions they don't want to make online. We've all seen them: the oversized "accept" buttons. The hidden fees that appear in small print at checkout. The alerts notifying shoppers that 20 other customers are "looking" at the same product. They're all foundational tactics on the web today. But increasingly, regulators and lawmakers have come to view them as abusive, and maybe even illegal.

"Dark patterns are part of a larger system of deceptive and manipulative practices that we see growing all too rapidly in the commercial digital surveillance economy," FTC acting chair Rebecca Slaughter said in her opening remarks.

As acting chair of the FTC, Slaughter has repeatedly vowed to focus the commission's enforcement actions on offenses that disproportionately affect disadvantaged communities. Web companies' use of dark patterns, she said, is one such offense. "It's also crucial that we look at the impact dark patterns are having on different communities, especially those that have been and continue to be disadvantaged and marginalized in both the market and our broader society," Slaughter said.

Indeed, in research presented during the event, University of Chicago Law School professor Lior J. Strahilevitz explained how people without a college degree are more likely to be coerced by dark patterns than people who have a degree. "Less-educated Americans are significantly more vulnerable to dark patterns," Strahilevitz said.

The question, of course, is what the government might be able to do about it. The FTC is struggling to find its footing in the wake of a bruising Supreme Court decision that stripped it of some of its core powers, but not all. Sen. Mark Warner said in his remarks at the event that the commission still has the authority under Section 5 of the FTC Act to prohibit unfair or deceptive practices, including the use of dark patterns.

"I know some of the social media firms will fight this, because it's at the heart of how they can gain more eyeballs and hopefully garner more information about all of us that they can then sell and market," Warner said.

Warner previously introduced the DETOUR Act, along with Rep. Lisa Blunt Rochester in the House, which would prohibit large platforms from designing their user interfaces in ways that interfere with educated decision-making by users. That legislation has languished since it was first introduced in 2019. Warner acknowledged as much, saying that the FTC may be able to move faster, given Congress "sometimes has not been all that good at getting its act together and acting."

The FTC has brought a series of cases related to dark patterns in recent years. One such case yielded a $10 million settlement with educational platform ABCmouse, which the FTC said automatically renewed user subscriptions and then made it difficult to cancel. Slaughter suggested there may be more action on dark patterns to come.

But if Washington is to truly tackle this problem, Zhou argued, regulators need to look at the underlying motivations of companies that make these products and the corporate cultures they build. She described an environment where employees are punished for speaking up about deceptive designs and applauded recent worker organizing movements in tech. That, Zhou said, could at least help protect employees who object to these deceptive practices from within, something she argued tech workers are rarely empowered to do.

"There's ways to speak up, you can speak up in town halls. You can write petitions. You can organize within your companies, which is a lot easier said than done," Zhou said. "It's definitely possible. But it takes a lot of guts."

Protocol | China

China’s edtech crackdown isn’t what you think. Here’s why.

It's part of an attempt to fix education inequality and address a looming demographic crisis.

In the past decade, China's private tutoring market has expanded rapidly as it's been digitized and bolstered by capital.

Photo: Getty Images

Beijing's strike against the private tutoring and ed tech industry has rattled the market and led observers to try to answer one big question: What is Beijing trying to achieve?

Sweeping policy guidelines issued by the Central Committee of the Chinese Communist Party on July 24 and the State Council now mandate that existing private tutoring companies register as nonprofit organizations. Extracurricular tutoring companies will be banned from going public. Online tutoring agencies will be subject to regulatory approval.

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After a year and a half of living and working through a pandemic, it's no surprise that employees are sending out stress signals at record rates. According to a 2021 study by Indeed, 52% of employees today say they feel burnt out. Over half of employees report working longer hours, and a quarter say they're unable to unplug from work.

The continued swell of reported burnout is a concerning trend for employers everywhere. Not only does it harm mental health and well-being, but it can also impact absenteeism, employee retention and — between the drain on morale and high turnover — your company culture.

Crisis management is one thing, but how do you permanently lower the temperature so your teams can recover sustainably? Companies around the world are now taking larger steps to curb burnout, with industry leaders like LinkedIn, Hootsuite and Bumble shutting down their offices for a full week to allow all employees extra time off. The CEO of Okta, worried about burnout, asked all employees to email him their vacation plans in 2021.

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It’s soul-destroying and it uses DRM, therefore Peloton is tech

"I mean, the pedals go around if you turn off all the tech, but Peloton isn't selling a pedaling product."

Is this tech? Or is it just a bike with a screen?

Image: Peloton and Protocol

One of the breakout hits from the pandemic, besides Taylor Swift's "Folklore," has been Peloton. With upwards of 5.4 million members as of March and nearly $1.3 billion in revenue that quarter, a lot of people are turning in their gym memberships for a bike or a treadmill and a slick-looking app.

But here at Protocol, it's that slick-looking app, plus all the tech that goes into it, that matters. And that's where things got really heated during our chat this week. Is Peloton tech? Or is it just a bike with a giant tablet on it? Can all bikes be tech with a little elbow grease?

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Karyne Levy ( @karynelevy) is the West Coast editor at Protocol. Before joining Protocol, Karyne was a senior producer at Scribd, helping to create the original content program. Prior to that she was an assigning editor at NerdWallet, a senior tech editor at Business Insider, and the assistant managing editor at CNET, where she also hosted Rumor Has It for CNET TV. She lives outside San Francisco with her wife, son and lots of pets.

Protocol | Workplace

In Silicon Valley, it’s February 2020 all over again

"We'll reopen when it's right, but right now the world is changing too much."

Tech companies are handling the delta variant in differing ways.

Photo: alvarez/Getty Images

It's still 2021, right? Because frankly, it's starting to feel like March 2020 all over again.

Google, Apple, Uber and Lyft have now all told employees they won't have to come back to the office before October as COVID-19 case counts continue to tick back up. Facebook, Google and Uber are now requiring workers to get vaccinated before coming to the office, and Twitter — also requiring vaccines — went so far as to shut down its reopened offices on Wednesday, and put future office reopenings on hold.

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Protocol | China

Livestreaming ecommerce next battleground for China’s nationalists

Vendors for Nike and even Chinese brands were harassed for not donating enough to Henan.

Nationalists were trolling in the comment sections of livestream sessions selling products by Li-Ning, Adidas and other brands.

Collage: Weibo, Bilibili

The No. 1 rule of sales: Don't praise your competitor's product. Rule No. 2: When you are put to a loyalty test by nationalist trolls, forget the first rule.

While China continues to respond to the catastrophic flooding that has killed 99 and displaced 1.4 million people in the central province of Henan, a large group of trolls was busy doing something else: harassing ordinary sportswear sellers on China's livestream ecommerce platforms. Why? Because they determined that the brands being sold had donated too little, or too late, to the people impacted by floods.

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