Some things are difficult by design.
Consider
Amazon. The company perfected the one-click
checkout. But canceling a $119 Prime subscription is a labyrinthine process
that requires multiple screens and clicks.
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Or
Ticketmaster. Online customers are bombarded with options
for ticket insurance, subscription services for razors and other items and,
when users navigate through those, they can expect to receive a battery of text
messages from the company with no clear option to stop them.
These are examples of “dark patterns,” the techniques that
companies use online to get consumers to sign up for things, keep subscriptions
they might otherwise cancel or turn over more personal data. They come in
countless variations: giant blinking sign-up buttons, hidden unsubscribe links,
red X’s that actually open new pages, countdown timers and pre-checked options
for marketing spam. Think of them as the digital equivalent of trying to cancel
a gym membership.
There are plans in both the House and Senate to tackle dark
patterns. And there’s movement at the state level, too. California strengthened
its data privacy laws to include certain dark patterns and, in Washington
state, lawmakers included similar language in a failed privacy bill of its own.
The phrase was coined over a decade ago by a British user
experience designer — who maintains an online “hall of shame” — and since then
dark patterns have become only more effective and pernicious. Because of the
scale of the internet, if even a small percentage of these ploys work, many
thousands or even millions of people may be affected.
Donald Trump’s 2020 campaign, for instance, used a website
with prechecked boxes that committed donors to give far more money than they
had intended, a recent Times investigation found. That cost some consumers
thousands of dollars that the campaign later repaid.
Enforcement against dark patterns has been uneven, and
generally left to the
Federal Trade Commission under its rules prohibiting
“unfair or deceptive acts.” But those unfair and deceptive acts can be hard to
identify, or even to notice — which is, of course, precisely as practitioners
intend. Without a clear baseline of federal enforcement, they have flourished.
Yet stronger rules defining the extent of the problem and addressing the more
egregious tricks could help to curtail the practice.
Parting consumers from their money is as old as retail
itself. But with the benefit of real-time user data and the ability to quickly
change online interfaces, dark patterns can be far more effective — and
diabolical — than offline tricks. Protections that offline consumers enjoy,
like cooling-off periods after buying a car, typically don’t apply to online
transactions.
This week, the FTC held a workshop on dark patterns and
their impact on consumers, particularly children. Last year, the FTC fined the
parent company of the children’s educational program ABCmouse $10 million over
what it said were tactics to keep customers paying as much as $60 annually for
the service by obscuring language about automatic renewals and forcing users
through six or more screens to cancel.
At the FTC event, panelists were shown an example of a
children’s video game that threatened to turn a virtual pet over to the SPCA
unless users made a $10 payment. Panelists, which included university
researchers and regulators, detailed as well how dark patterns are particularly
effective when used against minority groups, the poor, the less educated and
the elderly, echoing offline schemes.
“While there’s nothing inherently wrong with companies
making money, there is something wrong with those companies intentionally
manipulating users to extract their data,” Representative Lisa Blunt Rochester
(Democrat, Delaware) said at the FTC event. She said she planned to introduce
dark pattern legislation later this year.
A 2019 Senate bill would have banned tactics that
“intentionally impair user autonomy, decision-making, or choice” and would have
established a group to advise the FTC on dark pattern enforcement. It failed to
advance, but will be reintroduced during this session of Congress. Without such
uniform federal legislation, a patchwork of state rules could lead to varying
levels of enforcement and definitions of dark patterns — potentially creating
more confusion for consumers and opportunity for unscrupulous businesses.
At the state level, California has addressed some of the
more unscrupulous dark patterns. It prevents companies from using design tricks
to dupe Californians out of exercising their right to prohibit their data from
being sold, for instance. The state’s privacy laws, due to be updated in 2023,
will include further consumer protections.
That’s a start. But there are many other common practices
that must still be addressed for all consumers, like obscuring or burying
unsubscribe buttons, fake sales countdown clocks, forcing users to file
multiple requests to end a service, inoperable links, intentionally confusing
choices and miniature or obscured fonts.
In a recent experiment testing some of the most commonly
used tactics, like multiple opt-out screens and double-negatives, a University
of Chicago Law School professor, Lior Strahilevitz, and a law clerk, Jamie
Luguri, found that using dark patterns is extremely effective at compelling
consumers to pay for services they didn’t necessarily want. Participants in the
study subjected to digital cajoling were nearly four times more likely than a
control group to keep a paid data protection service they had been
automatically signed up for.
More than 1 in 10 e-commerce sites rely on dark patterns,
according to another study, which also found that many online customer
testimonials (“I wouldn’t buy any other brand!”) and tickers counting recent
purchases (“7,235 customers bought this service in the past week”) were phony,
randomly generated by software programs.
“Everyone is frustrated with dark patterns,” Strahilevitz
said. “Companies are taking a calculated risk that they won’t get caught doing
deceptive things because there is no consistent enforcement mechanism for
this.”
Strategies that took decades to streamline offline — at car
lots, casinos, grocery stores and even on ballot initiatives — can now be
perfected and refined essentially overnight thanks to the high-tech tools and
real-time analytics available online. The largest companies also hire
behavioral psychologists and game theorists to help hone their techniques.
“The internet shouldn’t be the Wild West anymore — there’s
just too much traffic,” Lauren Willis, a Loyola Law School professor, said at
the FTC event. “We need stop signs and street signs to enable consumers to shop
easily, accurately.”
Companies can’t be expected to reform themselves; they use
dark patterns because they work. And while no laws will be able to anticipate
or prevent every type of dark pattern, lawmakers can begin to chip away at the
imbalance between consumers and corporations by cracking down on these clearly
deceptive practices.
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