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."

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