A New Bill Could Make It Illegal For Online Platforms To Exploit Users With ‘Dark Patterns’

Sens. Mark Warner, D-VA, and Deb Fischer, R-NE, introduced a bipartisan bill on Tuesday that would prohibit large internet companies like Google and Facebook from using deceptive design practices known as “dark patterns” that subtly manipulate users into sharing their personal data.

Click here to read the bill in full.

Dark patterns enable companies to easily collect information they wouldn’t necessarily be able to get if they were being on the level, the bill argues. A misleading prompt, for example, or an unclear opt in allows a company to gain access to information without users knowing the extent of what they’ve given up.

(A bit of trivia: There’s a dark pattern named after Mr. Mark Zuckerberg himself called “privacy Zuckering” and refers to practices that deceive people into sharing more information about themselves than they intend to.)

The Deceptive Experience To Online Users Reduction (DETOUR) Act – someone needs to be commended for that acronym – would apply to online platforms with 100 million or more active users and create a standards body that would work with the Federal Trade Commission on user design best practices for the large tech platforms.

The law also looks to outlaw segmenting consumers for the purposes of behavioral or psychological experiments without informed consent, which could have an impact on how companies approach user experience testing.

User interfaces designed to create compulsive use among children 13 and under would also be banned under the law.

“Our goal is simple: to instill a little transparency in what remains a very opaque market and ensure that consumers are able to make more informed choices about how and when to share their personal information,” Warner said in a statement.

Informed consent is also a key tenet of the General Data Protection Regulation in Europe. Consent under GDPR has to be valid, freely given, specific and active or it won’t fly.

The challenge there is that companies, in an effort to be as transparent as possible, don’t want to bombard their users with too much information and cause notification fatigue. On the other hand – and this is where dark patterns come in – it’s just as problematic to be generic or vague.

Speaking of vague, it’s been almost exactly one year to the day since Mark Zuckerberg’s first appearance before Congress, when he told lawmakers that looking back, the “big mistake” Facebook made was “viewing our responsibility as just building tools rather than viewing our whole responsibility as being whether those tools are used for good.”

The DETOUR Act won’t be the last bill to come out of Warner’s office. In the coming weeks, he plans to introduce additional legislation related to transparency, privacy and accountability on social media.

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