Out of the dark: Legislation would prohibit manipulation by websites to retrieve personal data

“Dark patterns” describes online interfaces in websites and apps designed to intentionally manipulate users into taking actions they otherwise would not.

Social media platforms frequently use “dark patterns” to mislead consumers into agreeing to settings and practices more beneficial to the company. “Dark patterns” can take various forms and push users to agree to terms stacked in favor of the service provider. The deceptive practices include deliberately obscuring alternate choices or settings through design or other means or the use of privacy settings to push users to ‘agree’ as the default option while more privacy-friendly options can only be found through a much longer process, detouring through multiple screens. Users frequently are unable to find the alternate option, if it exists at all, and give up looking.

Last week, U.S. Sens. Mark R. Warner of Virginia and Deb Fischer of Nebraska were joined by Sens. Amy Klobucher of Minnesota and John Thune of South Dakota in introducing the Deceptive Experiences to Online Users Reduction (DETOUR) Act to prohibit large online platforms from using deceptive user interfaces to trick consumers into sharing personal data.

The legislation would provide more transparency for social media users by requiring online platforms obtain consent from users for covered research and prohibit them from using features that result in compulsive usage by children and teens.

“Dark patterns — manipulative online designs that trick you into signing up for services you don’t want or spending money you don’t mean to — are everywhere online, and they make user experience worse, and data less secure. The DETOUR Act will end this practice while working to instill transparency and oversight that the tech world lacks,” Warner said. “Consumers shouldn’t have to navigate intentionally misleading interfaces and design features in order to protect their privacy.”

The legislation:

• Prohibits large online operators from designing, modifying, or manipulating user interface with the purpose or substantial effect of obscuring, subverting, or impairing user autonomy, decision-making, or choice to obtain consent or user data.
• Prohibits subdividing or segmenting consumers for the purposes of behavioral experiments without a consumer’s informed consent, which cannot be buried in a general contract or service agreement. This includes routine disclosures for large online operators, not less than once every 90 days, on any behavioral or psychological experiments to users and the public. Additionally, the bill would require large online operators to create an internal Independent Review Board to provide oversight on these practices to safeguard consumer welfare.
• Prohibits user design intended to create compulsive usage among children and teens under the age of 17 years old.

“Manipulative ‘dark pattern’ interfaces trick users — including children — online. The ‘choices’ platforms present can often be deceptively obscured to exploit users’ personal data and behavior,” Fischer said. “It’s wrong, and our bipartisan bill will finally crack down on this harmful practice. I encourage my colleagues to support the DETOUR Act to increase trust online and protect consumer privacy.”

“Dark patterns” give social media platforms an unfair advantage over users and often force consumers to give up personal data such as their contacts, messages, web activity or location in order to benefit the company.

“Momentum is building, in Congress and across the states, to force tech companies to reduce the serious harm to kids and teens caused by the way that these companies design and operate their platforms,” James P. Steyer, founder and CEO of Common Sense Media, said. “The reintroduction of the DETOUR Act comes at just the right time to add another important element of protection for children and their families. We applaud Senators Warner and Fischer for working together to try to stop companies from utilizing manipulative design features that trick kids into giving up more personal information and compulsive usage of their platforms for the sake of increasing their profits and engagement without regard for the harm it inflicts on kids.”

Associate Professor at the University of Washington Katie Davis said the legislation represents an important step toward reducing big tech companies’ use of dark patterns.

“As a developmental scientist, I’m hopeful the DETOUR Act will encourage companies to adopt a child-centered approach to design that places children’s well-being front and center, reducing the burden on parents to look out for and avoid dark patterns in their children’s technology experiences,” Davis said.

Dr. Colin M. Gray, Associate Professor at Indiana University said the legislation “provides a foothold for regulators to better guard against deceptive and exploitative practices that have become rampant in many large technology companies, and which have had outsized impacts on children and underserved communities.”