Dark patterns are often used online to deceive users into taking actions they would otherwise not take under effective, informed consent. Dark patterns are generally used by shopping websites, social media platforms, mobile apps and services as a part of their user interface design choices. Dark patterns can lead to financial loss, tricking users into giving up vast amounts of personal data, or inducing compulsive and addictive behavior in adults and children. Using dark patterns is unambiguously unlawful in the United States (under Section 5 of the Federal Trade Commission Act and similar state laws), the European Union (under the Unfair Commercial Practices Directive and similar member state laws), and numerous other jurisdictions.
Earlier this week, at the Russell Senate Office Building, a panel of experts met to discuss the implications of Dark patterns in the session, Deceptive Design and Dark Patterns: What are they? What do they do? How do we stop them? The session included remarks from Senator. Mark Warner and Deb Fischer, sponsors of the DETOUR Act, and a panel of experts including Tristan Harris (Co-Founder and Executive Director, Center for Humane Technology).
The entire panel of experts included:
- Tristan Harris (Co-Founder and Executive Director, Center for Humane Technology)
- Rana Foroohar (Global Business Columnist and Associate Editor, Financial Times)
- Amina Fazlullah (Policy Counsel, Common Sense Media)
- Paul Ohm (Professor of Law and Associate Dean, Georgetown Law School), also the moderator
- Katie McInnis (Policy Counsel, Consumer Reports)
- Marshall Erwin (Senior Director of Trust & Security, Mozilla)
- Arunesh Mathur (Dept. of Computer Science, Princeton University)
Dark patterns are growing in social media platforms, video games, shopping websites, and are increasingly used to target children
The expert session was inaugurated by Arunesh Mathur (Dept. of Computer Science, Princeton University) who talked about his new study by researchers from Princeton University and the University of Chicago. The study suggests that shopping websites are abundant with dark patterns that rely on consumer deception. The researchers conducted a large-scale study, analyzing almost 53K product pages from 11K shopping websites to characterize and quantify the prevalence of dark patterns. They so discovered 1,841 instances of dark patterns on shopping websites, which together represent 15 types of dark patterns.
One of the dark patterns was Sneak into Website, which adds additional products to users’ shopping carts without their consent. For example, you would buy a bouquet on a website and the website without your consent would add a greeting card in the hopes that you will actually purchase it.
Katie McInnis agreed and added that Dark patterns not only undermine the choices that are available to users on social media and shopping platforms but they can also cost users money. User interfaces are sometimes designed to push a user away from protecting their privacy, making it tough to evaluate them.
Amina Fazlullah, Policy Counsel, Common Sense Media said that dark patterns are also being used to target children. Manipulative apps use design techniques to shame or confuse children into in-app purchases or trying to keep them on the app for longer. Children mostly are unable to discern these manipulative techniques. Sometimes the screen will have icons or buttons that will appear to be a part of game play and children will click on them not realizing that they’re either being asked to make a purchase or being shown an ad or being directed onto another site. There are games which ask for payments or microtransactions to continue the game forward.
Mozilla uses product transparency to curb Dark patterns
Marshall Erwin, Senior Director of Trust & Security at Mozilla talked about the negative effects of dark patterns and how they make their own products at Mozilla more transparent. They have a set of checks and principles in place to avoid dark patterns.
- No surprises: If users were to figure out or start to understand exactly what is happening with the browser, it should be consistent with their expectations. If the users are surprised, this means browsers need to make a change either by stopping the activity entirely or creating additional transparency that helps people understand.
- Anti-tracking technology: Cross-site tracking is one of the most pervasive and pernicious dark patterns across the web today that is enabled by cookies. Browsers should take action to decrease the attack surface in the browser and actively protect people from those patterns online. Mozilla and Apple have introduced anti tracking technology to actively intervene to protect people from the diverse parties that are probably not trustworthy.
Detour Act by Senators Warner and Fisher
In April, Warner and Fischer had introduced the Deceptive Experiences To Online Users Reduction (DETOUR) Act, a bipartisan legislation to prohibit large online platforms from using dark patterns to trick consumers into handing over their personal data. This act focuses on the activities of large online service providers (over a hundred million users visiting in a given month). Under this act you cannot use practices that trick users into obtaining information or consenting. You will experience new controls about conducting ‘psychological experiments on your users’ and you will no longer be able to target children under 13 with the goal of hooking them into your service. It extends additional rulemaking and enforcement abilities to the Federal Trade Commission.
“Protecting users personal data and user autonomy online are truly bipartisan issues”: Senator Mark Warner
In his presentation, Warner talked about how 2019 is the year when we need to recognize dark patterns and their ongoing manipulation of American consumers. While we’ve all celebrated the benefits that communities have brought from social media, there is also an enormous dark underbelly, he says. It is important that Congress steps up and we play a role as senators such that Americans and their private data is not misused or manipulated going forward. Protecting users personal data and user autonomy online are truly bipartisan issues. This is not a liberal versus conservative, it’s much more a future versus past and how we get this future right in a way that takes advantage of social media tools but also put some of the appropriate constraints in place.
He says that the driving notion behind the Detour act is that users should have the choice and autonomy when it comes to their personal data. When a company like Facebook asks you to upload your phone contacts or some other highly valuable data to their platform, you ought to have a simple choice yes or no. Companies that run experiments on you without your consent are coercive and Detour act aims to put appropriate protections in place that defend user’s ability to make informed choices.
In addition to prohibiting large online platforms from using dark patterns to trick consumers into handing over their personal data, the bill would also require informed consent for behavior experimentation. In the process, the bill will be sending a clear message to the platform companies and the FTC that they are now in the business of preserving user’s autonomy when it comes to the use of their personal data. The goal, Warner says, is simple – to bring some transparency to what remains a very opaque market and give consumers the tools they need to make informed choices about how and when to share their personal information.
“Curbing the use of dark patterns will be foundational to increasing trust online” : Senator Deb Fischer
Fischer argued that tech companies are increasingly tailoring users’ online experiences in ways that are more granular. On one hand, she says, you get a more personalized user experience and platforms are more responsive, however it’s this variability that allows companies to take that design just a step too far. Companies are constantly competing for users attention and this increases the motivation for a more intrusive and invasive user design. The ability for online platforms to guide the visual interfaces that billions of people view is an incredible influence. It forces us to assess the impact of design on user privacy and well-being.
- Fundamentally the detour act would prohibit large online platforms from purposely using deceptive user interfaces – dark patterns.
- The detour act would provide a better accountability system for improved transparency and autonomy online.
- The legislation would take an important step to restore the hidden options. It would give users a tool to get out of the maze that coaxes you to just click on ‘I agree’.
- A privacy framework that involves consent cannot function properly if it doesn’t ensure the user interface presents fair and transparent options. The detour act would enable the creation of a professional standards body which can register with the Federal Trade Commission. This would serve as a self regulatory body to develop best practices for UI design with the FTC as a backup.
She adds, “We need clarity for the enforcement of dark patterns that don’t directly involve our wallets. We need policies that place value on user choice and personal data online. We need a stronger mechanism to protect the public interest when the goal for tech companies is to make people engage more and more. User consent remains weakened by the presence of dark patterns and unethical design. Curbing the use of dark patterns will be foundational to increasing trust online. The detour act does provide a key step in getting there.”
“The DETOUR act is calling attention to asymmetry and preventing deceptive asymmetry”: Tristan Harris
Tristan says that companies are now competing not on manipulating your immediate behavior but manipulating and predicting the future. For example, Facebook has something called loyalty prediction which allows them to sell to an advertiser the ability to predict when you’re going to become disloyal to a brand. It can sell that opportunity to another advertiser before probably you know you’re going to switch.
The DETOUR act is a huge step in the right direction because it’s about calling attention to asymmetry and preventing deceptive asymmetry. We need a new relationship for this asymmetric power by having a duty of care. It’s about treating asymmetrically powerful technologies to be in the service of the systems that they are supposed to protect. He says, we need to switch to a regenerative energy economy that actually treats attention as sacred and not directly tying profit to user extraction.
Top questions raised by the panel and online viewers
Does A/B testing result in dark patterns?
Dark patterns are often a result of A/B testing right where a designer may try things that lead to better engagement or maybe nudge users in a way where the company benefits. However, A/B testing isn’t the problem, it’s the intention of how A/B testing is being used. Companies and other organizations should have an oversight on the different experiments that they are conducting to see if A/B testing is actually leading to some kind of concrete harm. The challenge in the space is drawing a line about A/B testing features and optimizing for engagement and decreasing friction.
Are consumers smart enough to tackle dark patterns on their own or do we need a legislation?
It’s well established that for children whose brains are just developing, they’re unable to discern these types of deceptive techniques so especially for kids, these types of practices should be banned. For vulnerable families who are juggling all sorts of concerns around income and access to jobs and transportation and health care, putting this on their plate as well is just unreasonable.
Dark patterns are deployed for an array of opaque reasons the average user will never recognize. From a consumer perspective, going through and identifying dark pattern techniques–that these platform companies have spent hundreds of thousands of dollars developing to be as opaque and as tricky as possible–is an unrealistic expectation put on consumers. This is why the DETOUR act and this type of regulation are absolutely necessary and the only way forward.
What is it about the largest online providers that make us want to focus on them first or only? Is it their scale or do they have more powerful dark patterns? Is it because they’re just harming more people or is it politics?
Sometimes larger companies stay wary of indulging in dark patterns because they have a greater risk in terms of getting caught and the PR backlash. However, they do engage in manipulative practices and that warrants a lot of attention. Moreover, targeting bigger companies is just one part of a more comprehensive privacy enforcement environment. Hitting companies that have a large number of users is also great for consumer engagement. Obviously there is a need to target more broadly but this is a starting point.
If Facebook were to suddenly reclass itself and its advertising business model, would you still trust them?
No, the leadership that’s in charge now for Facebook can not be trusted, especially the organizational cultures that have been building. There are change efforts going on inside of Google and Facebook right now but it’s getting gridlocked. Even if employees want to see policies being changed, they still have bonus structures and employee culture to keep in mind.