Category Archives: Law

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.


UK Online Harms White Paper Could Fine Senior Tech Managers



The BBC reported that the Department for Culture, Media and Sport has proposed an independent watchdog and a code of practice that tech companies would have to follow. Senior managers of social media platforms and other websites would be held liable for breaches, with a possible fine.

The Online Harms White Paper covers a range of issues. The Guardian reported that those issues include: child abuse, terrorist acts, revenge pornography, cyber bullying, spreading disinformation and encouraging self-harm. Senior social media executives could be held personally liable for failure to remove such content from their platforms.

The new laws will apply to any company that allows users to share or discover user-generated content or interact with each other online, including social media platforms, file hosting sites, public discussion forums, messaging services, and search engines.

Other proposals in the Online Harms White Paper:

  • Government powers to direct the regulator on specific issues such as terrorist activity or child sexual exploitation
  • Annual transparency reports from social media companies, disclosing the prevalence of harmful content on their platforms and what they are doing to combat it
  • Co-operation with police and other enforcement agencies on illegal harms, such as incitement of violence and the sale of illegal weapons
  • Companies will be asked to comply with a code of practice, setting out what steps they are taking to ensure that they meet the duty of care – including by designing products and platforms to make them safer, and pointing users who have suffered harm towards support.

The Online Harms White Paper comes after the Australian government passed legislation to crack down on violent videos on social media. It is called the Sharing of Abhorrent Violent Material bill.

The Australian bill creates new offenses for content service providers and hosting services that fail to notify the Australian federal police about or fail to expeditiously remove videos depicting “abhorrent violent conduct”, which is defined as videos depicting terrorist acts, murders, attempted murders, torture, rape or kidnap.

Personally, I believe that social media (and similar websites) truly do need some regulation. The specific issues listed in Australia’s bill and in the UK bill are things that reasonable people would immediately recognize as things that do not belong online.

It is abundantly clear that social media sites, and other websites that allow users to post content, are failing at self-regulation. Growth and interaction is valued by those companies over the health and safety of users. I suspect that when social media managers are fined by governments – for failure to clean up their websites – the cost will eventually get high enough for those companies to do the right thing.


Elizabeth Warren Wants to Break Up Tech Industry Giants



Senator Elizabeth Warren said that if she is elected president in 2020, her administration will break up the giants of the tech industry. This was announced at SXSW in Austin, and in a detailed post on Medium. In that post, Senator Warren mentioned Amazon, Google, and Facebook.

Senator Warren’s plan would classify any company that runs a marketplace and makes more than $25 billion a year in revenue as a “platform utility”, and will prohibit those companies from using those platforms to selling their own products.

The Verge interviewed Senator Warren. Her plan includes Apple – which was not mentioned in the Medium post. Senator Warren wants to break Apple apart from their App Store. As far as I can tell, the plan also calls for Google to split from Google Play. Personally, I’d like to see more specific information from Senator Warren about how that change will affect how apps are distributed.

In part of the interview, Senator Warren said:

The problem is that’s not competition. That’s just using market dominance, not because they had a better product or because they were somehow more customer-friendly or in a better place. It’s just using market dominance. So, my principle is exactly the same: what was applied to the railroad companies more than a hundred years ago, we need to now look at those tech platforms the same way.

In short, the plan would prevent Amazon from selling Amazon Basics products on the Amazon retail store. It would stop Google from promoting its own products in Google Search. And, it would require Facebook to split apart from Instagram and Whatsapp. It is a strong push for antitrust enforcement of an industry that has been untouched by those laws.

Personally, I would like to see Facebook and Instagram split apart. I’m not a fan of Facebook (and stopped using it years ago). Instagram brings me joy, but I am conflicted about continuing to use it because it belongs to Facebook. I’d also like to see YouTube separated from Google.


FTC Announced Creation of Technology Task Force



The Federal Trade Commission’s Bureau of Competition announced the creation of a Technology Task Force. It is dedicated to monitoring competition in the U.S. technology markets, investigating any potential anticompetitive conduct in those markets, and taking enforcement actions when warranted.

The creation of this task force is modeled on the FTC’s Merger Litigation Task Force which reinvigorated the Bureau of Competition’s hospital merger review program, and also sharpened the agency’s focus on merger enforcement in retail industries, particularly regarding matters involving food, beverages, and supermarkets.

“The role of technology in the economy and in our lives grows more important every day,” said FTC Chairman Joe Simons. “As I’ve noted in the past, it makes sense for us to closely examine technology markets to ensure consumers benefit from free and fair competition.”

The Technology Task Force will have about 17 staff attorneys. It will include attorneys with unique expertise in complex product and service markets and ecosystems, including markets for online advertising, social networking, mobile operating systems and apps, and platform businesses.

“Technology markets, which are rapidly evolving and touch so many other sectors of the economy, raise distinct challenges for antitrust enforcement,” said Bureau Director Bruce Hoffman. “By centralizing our expertise and attention, the new task force will be able to focus on these markets exclusively – ensuring they are operating pursuant to the antitrust laws, and taking action where they are not.”

Personally, I think the existence of the Technology Task Force should worry companies like Facebook, Google, and Twitter. Each one will have to consider antitrust laws before gobbling up smaller companies. I wonder if the Technology Task Force will look at the companies who make video games, who buy up smaller competitors, and then do massive layoffs a little while later.

I’m hoping that the consumer protection aspect of the Technology Task Force will put in place restrictions on how social media companies can use people’s data – especially in situations where that data is being used to make money for those companies. It will be interesting to see what, exactly, the Technology Task Force does.


Paris is Suing Airbnb for Illegal Advertisements



The city of Paris is suing Airbnb for violating a French law that requires advertisements about short term rentals to include a registration number.

Under French law, home owners in Paris can rent out their places on short-term rental platforms for up to 120 days a year. Advertisements must include a registration number to help ensure properties are not rented out for longer. This law was passed in 2018.

Paris is suing Airbnb for publishing 1,000 illegal rental adverts. Those who break this law can be punished by fines of 12,500 euros per illegal posting. This means Airbnb could end up paying 12.5 million euros, which comes to $14.2 million.

Reuters reported that France is Airbnb’s second-largest market after the United States. Paris, one of the most visited cities in the world, is its biggest single market, with around 65,000 homes listed.

Paris is absolutely serious about the 2018 law. The mayor of Paris, Anne Hidalgo, told the Journal du Dimanche newspaper, “The goal is to send a shot across the bows to get it over with unauthorized rentals spoil some Parisian neighborhoods.” It appears that Airbnb may have to pay the fine if it wants to continue it’s business in Paris.

A spokeswoman for Airbnb told Reuters that the company implemented measures to help Paris users of its website comply with European rules. The spokeswoman said the rules in Paris were “inefficient, disproportionate and in contravention of European rules.”

This problem could have been entirely prevented if Airbnb paid attention to the Paris rule regarding short-term rentals and advertisements. I think Airbnb will have difficulty convincing a court that it did not break the Paris law.

If Airbnb ends up not being allowed to continue its business in Paris – it could potentially result in good things for the people who live in the city. CityLab reported about a study that found that spikes in Airbnb listings were strongly linked to rent increases in some of the largest US metro areas. Rent increases tend to make it very hard for low-income people to find affordable housing.

Perhaps this was what the mayor of Paris meant when she said that unauthorized rentals spoil some Parisian neighborhoods.


Seven People Trump Blocked on Twitter are Suing Him



Seven people have filed a lawsuit against President Donald Trump after he blocked them from seeing or interacting with his Twitter account. Trump blocked these Twitter users from seeing or interacting with his @realDonaldTrump account – not the @POTUS account. This case presents a unique situation and it will be interesting to see what the outcome will be.

In addition to President Trump, White House press secretary Sean Spicer and White House director of social media Daniel Scavino were named as Defendants in the lawsuit.

The seven blocked people are being represented by the Knight First Amendment Institute at Columbia University. The case was filed in the United States District Court for the Southern District of New York. A paragraph from the Introduction portion of the lawsuit provides a quick explanation of what this case is about:

“President Trump’s Twitter account, @realDonaldTrump, has become an important source of news and information about the government, and an important public forum for speech by, to, and about the President. In an effort to suppress dissent in this forum, Defendants have excluded – “blocked” – Twitter users who have criticized the President or his policies. This practice is unconstitutional, and this suit seeks to end it.”

The lawsuit describes what each individual plaintiff tweeted @realDonaldTrump before being blocked from viewing or interacting with that Twitter account.

The Knight First Amendment Institute at Columbia University argues that being blocked from the @realDonaldTrump account violated the First Amendment because it imposes a viewpoint-based restriction on the individual Plaintiff’s participation in a public forum. It also argues being blocked prevents Plaintiff’s access to official statements the President otherwise makes available to the general public, and because it imposes a viewpoint-based restriction on the Plaintiff’s ability to petition the government for redress of grievances.

I took a quick look at the @realDonaldTrump Twitter account shortly before posting this. It does not include any tweets about this lawsuit.


Did Swatch Kill The iWatch?



iswatchIn news reported by the BBC, it seems that Swatch‘s opposition to Apple‘s application for an iWatch trademark in the UK resulted Apple’s smartwatch simply being branded “Apple Watch”.  Overall, the ruling from the UK’s Intellectual Property Office upheld Swatch’s complaint that iWatch was too similar to iSwatch and Swatch, and shouldn’t be used for watches. Although we can’t be privy to the internal thinking of Apple, one could infer that the inability to claim the iWatch trademark in key markets back in 2014 killed iWatch in favour of Apple Watch when announced in 2015.

The whole ruling is here, but aside from the trademark evidence, decision-making and ruling, there’s some interesting commentary on the use of shell company registrants, in this case BrightFlash USA LLC to hide the actions of Apple. If I read the judgement correctly (and I’m certainly not a lawyer), Swatch had tried to accuse Apple of “bad faith” by using BrightFlash to register the trademark, but the registrar dismisses the complaint and Swatch has to to pay Apple GB£2,767 on balance. You win some, you lose some.