Hill Briefing: DETOUR Act on Right Road

Would take aim at ‘dark pattern‘ edge-provider practices
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WASHINGTON  — There was general support from tech and public interest types at a Capitol Hill briefing Tuesday (June 25) on the DETOUR Act, which would give the Federal Trade Commission direction to go after deceptive and disingenuous "dark patterns." 

Sen. Mark Warner

Sen. Mark Warner

The draft bill, introduced by Sens. Mark Warner (D-Va.) and Deb Fischer (R-Neb.) in  April, would prevent "large online platforms" from using so-called “dark patterns” to "trick consumers into handing over their personal data." 

Dark patterns are online interfaces designed to trick users into taking actions they might not ordinarily take. Examples include: 1) simple buttons that say "yes" to user data collection while the "no" button is tiny or hidden or several steps removed; 2) suggesting others are about to buy an item to try to close the sale; or 3) deliberately obscuring alternative choices or settings. Then there are the online game designs that lure kids into in-app purchases their parents have to either pay for or seek refunds.

Representatives from Consumer Reports, Common Sense Media and Mozilla all agreed the bill was a step in the right direction.  

Warner said it was a necessary step because Big Tech companies have grown from dorm-room operations to billion-dollar businesses. And though some firms, like Mozilla, were taking positive steps, Warner said platforms were not doing enough while Congress has been late to the issue and regulators asleep at the switch. 

Warner expressed confidence the bill could become part of broader federal privacy legislation.  

Shining a light on deceptive web design, and finding ways to prevent it, had to be part of the privacy fix, Fischer said. 

Among the other deceptive design issues are games and apps that try to get kids to make in-app purchases, including by making that a prerequisite of completing a game, or "confirmshaming," a type of dark pattern designed to "shame" a user into doing something. For example, in a game where a child helps bake a cake, players are told if they don't agree to buy extra in-app ingredients, the cake won't be as good. 

Amina Fazlullah, policy counsel for Common Sense, talked about the complaint filed against Facebook over in-app purchases. 

Sens. Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) in January wrote Facebook "demanding" information about what they said was evidence that the company knowingly manipulated children into spending their parents‘ money on in-app purchases during gaming. 

"Recent findings uncovered by The Center for Investigative Reporting show that Facebook personnel had direct knowledge that children were spending large sums of their parents’ money on in-app purchases without parental knowledge or permission," they said at that time. "Specific design features and default settings fostered this practice. In addition, reports suggest that when Facebook became aware of this phenomenon and identified a solution, the company declined to implement the fix, and even designed a mechanism to automatically dispute its users’ requests for refunds." 

Warner said that it was his role in investigating Russian election interference, as vice chair of the Senate Intelligence Committee, that opened his eyes to the fact that social media companies bore some of the responsibility for how their platforms had been misused.  

"And now that this ’dark underbelly‘ of social media has been exposed, I believe both the companies and the Congress have a role to play in making sure that Americans and their private data are not misused or manipulated going forward," he added. 

Fisher said the DETOUR Act would provide for more accountability and give users a tool to get out of the "I agree" maze. She said companies asserting their users have choice and control now are beating on a hollow publicity campaign, while the dark patterns show a very different reality. 

"Consent must include fair and transparency options from user interfaces," she said. 

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