Senators Introduce Legislation to Ban Manipulative 'Dark Patterns'

Sens. Mark R. Warner (D-VA) and Deb Fischer (R-NE) have introduced the Deceptive Experiences To Online Users Reduction (DETOUR) Act, bipartisan legislation to prohibit large online platforms from using deceptive user interfaces, known as “dark patterns” to trick consumers into handing over their personal data. The term “dark patterns” is used to describe online interfaces in websites and apps designed to intentionally manipulate users into taking actions they would otherwise not take under normal circumstances. These design tactics, drawn from extensive behavioral psychology research, are frequently used by social media platforms to mislead consumers into agreeing to settings and practices advantageous to the company. Dark patterns can take various forms, often exploiting the power of defaults to push users into agreeing to terms stacked in favor of the service provider. Some examples of such actions 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 through multiple screens. Other times, users cannot find the alternative option, if it exists at all, and simply give up looking. The result is that large online platforms have an unfair advantage over users and potential competitors in forcing consumers to give up personal data such as their contacts, messages, web activity, or location to the benefit of the company. 

The legislation:

• Enables the creation of a professional standards body, which can register with the Federal Trade Commission (FTC), to focus on best practices surrounding user design for large online operators. This association would act as a self-regulatory body, providing updated guidance to platforms on design practices that impair user autonomy, decision-making, or choice, positioning the FTC to act as a regulatory backstop.

• Prohibits segmenting consumers for the purposes 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. Additionally, the bill would require large online operators to create an internal Independent Review Board to provide oversight on these practices to safeguard consumer welfare. 

• Prohibits user design intended to create compulsive usage among children under the age of 13 years old.

• Directs the FTC to create rules within one year of enactment to carry out the requirements related to informed consent, Independent Review Boards, and Professional Standards Bodies.