Two Senators Introduced Bill to Ban “Dark Patterns”

Two U.S. Senators, Mark Warner (Democrat – Virginia) and Deb Fischer (Republican – Nevada), have introduced a bill that, if passed into law, would prohibit large online platforms from using deceptive user interfaces, known as “dark patterns” to trick consumers into handing over their personal data.

The Deceptive Experiences To Online Users Reduction (DETOUR) Act would ban online social media companies, such as Facebook and Twitter, from tricking consumers into giving up their personal data.

The bill also would ban online platforms with more than 100 million monthly users from designing addicting games or other websites for children under age of 13.

A press release from both Senators includes a description of dark patterns:

Dark patterns can take various forms, often exploiting the power of defaults to push users onto agreeing to terms stacked in the favor of the service provider. Some examples include: a sudden interruption during the middle of a task repeating until the user agrees to consent; a deliberate obscuring of alternative choices or settings through design or other means; or the use of privacy settings that push users to ‘agree’ as the default option, while users looking for more privacy-friendly options often must click through a much longer process, detouring though multiple screens. Other times, users cannot find the alternative option, if it exists at all, and simply give up looking.

The DETOUR Act does the following:

• Enables the creation of a professional standards body, which can register with the FTC to focus on best practices surrounding user design for large online operators. It would act as a regulatory body, providing updated guidance to platforms on practices that impair user autonomy, decision-making, or choice, and positioning the FTC to act as a regulatory backstop.
• Prohibits segmenting consumers for the purpose of behavioral experiments, unless with a consumer’s informed consent. 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.
• Prohibits user design intended to create compulsive usage among children under 13 years old.

To me, it sounds like the DETOUR bill was written with Facebook in mind. In 2014, Facebook apologized for conducting secret psychological tests on its nearly 700,000 users in 2012. I also think the DETOUR bill could potentially be used to prevent large video game companies and platforms from using dark patterns.