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FTC convenes workshop on 'dark patterns' trend deceiving online consumers

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FTC convenes workshop on 'dark patterns' trend deceiving online consumers

Have you ever unintentionally signed up for an online subscription? Or clicked on a setting that you thought would lead to more privacy but did exactly the opposite?

If so, you may have been the victim of "dark patterns," methods used by online businesses to deceive consumers into paying for unwanted services and handing over personal data.

The Federal Trade Commission will host a free virtual workshop April 29 that features five panel discussions and explores how dark patterns trick consumers by hiding away privacy-friendly settings and nudging them toward certain choices with confusing language, fake urgency and an illusion of control. The event begins at 10:30 a.m. and features opening remarks by FTC Acting Chairwoman Rebecca Kelly Slaughter.

These practices are not new but are becoming more prevalent during a pandemic that has accelerated the number of consumers shopping online, said Andrea Arias, an attorney in the FTC's Division of Privacy and Identity Protection.

Examples of dark pattern behavior seen by the FTC include web interfaces that highlight a preferred choice for the company while presenting the disfavored choice in smaller text. Other companies continuously prompt consumers if they select a disfavored setting. "We've actually seen where somebody says 'I don't want you to collect my information' so that every time you maybe open the app or open the website, it prompts you again and so you finally maybe give up, and say 'fine, collect my information,'" Arias said.

The FTC is holding the workshop as the agency increasingly cracks down on dark pattern behavior. In 2018, the FTC charged that Venmo LLC misled consumers about the extent that they could control the privacy of their transactions.

In 2020, the FTC charged that Age of Learning Inc. parent of ABCMouse, failed to adequately disclose key terms of memberships to access online education content for children from 2015 until at least 2018, including how a 12-month subscription would automatically renew.

California-based photo app developer Everalbum settled FTC allegations in 2021 that it deceived consumers about its use of facial recognition technology and retention of photos and videos of users who deactivated their accounts.

Lawmakers are also targeting Big Tech. Sens. Mark Warner, D-Va., and Deb Fischer, R-Neb., in 2019 introduced the Detour Act, which is designed to prohibit "large online platforms" from using dark patterns to trick consumers into handing over personal data.

The bill did not name specific companies, but a 2018 study by the Norwegian Consumer Council stated that Google LLC and Facebook Inc. use practices that trick users into sharing more of their personal data. Warner's spokesperson said the senator plans to reintroduce the Detour Act legislation in the coming weeks with a House companion bill.

Arias said the FTC has numerous mechanisms in place to combat dark patterns including the FTC Act, which prohibits unfair or deceptive acts or practices in commerce. The Restore Online Shoppers' Confidence Act requires clear and conspicuous disclosures on key terms and mechanisms to stop recurring charges.

Individual states may pursue their own ways to stop dark pattern behavior.

Michelle Cohen, chair of the data privacy practice at the law firm Ifrah Law, said California recently updated its Consumer Privacy Act with an amendment that gives consumers the ability to tell a business not to sell their personal information.

It also requires companies to provide an opt-out notice that is presented in a way that is easy to read and understandable. "They can't use confusing language such as double negatives — don't not sell my personal information," Cohen said.

The laws are important to prevent dark pattern behavior that hurts the consumer and erodes trust, Cohen said. "Even the most sophisticated online shopper can get frustrated when trying to cancel something."

Government

April 26 The Federal Communications Commission will host a workshop to provide updates on efforts to protect the nation's communications supply chain.
April 29 Sen. Maria Cantwell, D-Wash., chair of the Senate Committee on Commerce, Science and Transportation, will convene a nomination hearing at 10 a.m. to consider the presidential nomination of Dr. Eric Lander to be director of the White House Office of Science and Technology Policy.
April 29 The Federal Trade Commission will hold a virtual workshop at 10:30 a.m. titled, "Bringing Dark Patterns to Light."
Industry, legal and think tank events
April 26 The FCBA will hold an event titled "CLE: Consumer Protection Priorities in the Biden Administration," that will feature speakers from the Federal Trade Commission, the Federal Communications Commission and the Better Business Bureau.
April 27 NetChoice, a trade association of e-commerce businesses, will host a free online event titled "Defining the Digital Market," that explores whether major digital services are monopolies or face competition. Federal Trade Commissioner Christine Wilson will be the keynote speaker.
April 28 The Federal Communications Commission will hold a tech diversity symposium at 12 p.m. featuring one-on-one networking.
April 29 The Information Technology and Innovation Foundation will hold an online webinar at 1 p.m. titled "How intellectual property has played a pivotal role in the Global COVID-19 response."

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