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CR Comments on Bringing Dark Patterns to Light: An FTC Workshop

Consumer Reports thanks the Federal Trade Commission (“FTC” or “Commission”) for the opportunity to submit comments on dark patterns pursuant to the recent workshop, Bringing Dark Patterns to Light. This request for comment is timely: dark patterns—deceptive interfaces that push consumers to take actions that they did not intend, such as spending additional money, sharing personal data, or spending more time online—are particularly prevalent in light of the COVID-19 pandemic. The shutdown has caused people to spend more time online, including to work, shop, and learn, where they are more likely to encounter these interfaces. Further, it is especially important for the FTC to take action because of the disproportionate impact that certain dark patterns have on vulnerable populations, including the less educated.

Dark patterns are pervasive. Sites often make it much easier to agree to a potential transaction than to say no, relying on consumers’ limited attention span and the habit of clicking “OK.” In response to Europe’s recent General Data Protection Regulation (GDPR) privacy law, many websites forced users through confusing consent dialogs to ostensibly obtain consent to share and collect data for any number of undisclosed purposes. And researchers increasingly have been paying attention to manipulative dark patterns as well. A 2019 Princeton University study of 11,000 shopping sites found more than 1,800 examples of dark patterns, many of which clearly crossed the line into illegal deception. Consumer Reports research has also identified numerous dark patterns, including in smart TV’s, food delivery apps, social media, and resort fees. And, Consumer Reports is helping to identify dark patterns through the Dark Patterns Tipline, a project to crowdsource examples of these deceptive interfaces to help advocate for reform.

The FTC can—and has—taken action against dark patterns under its Section 5 unfairness and deception authority and the Restoring Online Shoppers’ Confidence Act (ROSCA). The FTC should use its full authority to go after these deceptive interfaces. But the persistence of dark patterns demonstrates that the FTC needs more power to effectively address them, especially after the recent Supreme Court decision, FTC v. AMG Capital Management, that will make it harder for the FTC to obtain redress for consumers. The FTC should:

  • Step up enforcement under its Section 5 authority to police unfair and deceptive acts and practices (UDAP), and under ROSCA;
  • Pursue a rulemaking prohibiting dark patterns under its existing Section 18 authority, or take steps in that direction by banning hidden fees charged by hotels, event ticket sellers, and others;
  • Update the .com disclosures to be more precise and prescriptive;
  • Push Congress to expand the Commission’s authority, including by expanding resources for staffing, allowing the FTC to issue civil penalties for first-time violations and obtain equitable relief, and empowering the Commission to pursue APA rulemaking; and
  • Support legislative efforts targeting dark patterns, including effective privacy legislation and laws to prohibit hidden fees.

Market self-regulation and naming and shaming has not been enough to prevent companies from using dark patterns. By their very nature, dark patterns are difficult for consumers to identify, and companies have extremely strong incentives to continue to use them. Shame is not adequate deterrence when the use of these deceptive interfaces can bring in billions of dollars. Instead, consumers need clearer standards, more prescriptive guidance from the FTC, and more aggressive enforcement.

For the full comments, please see the attached PDF.