Tech companies, subscription apps and e-commerce sites have for years used subtle tricks to nudge people toward a decision or purchase they might not otherwise make. There's even a name for the tactics: dark patterns.
Now, a crackdown may be coming.
Members of Congress, consumer protection agencies, nonprofit watchdog groups and academic researchers have all announced plans this year to increase the scrutiny they give to dark patterns, laying the groundwork for possible legal action and promising to bring more clarity and fairness to how people navigate the internet.
The tactics in question are likely familiar to anyone who's used a web browser or a smartphone: the extra hoops to jump through to cancel a subscription, a poorly worded question that leads to an avalanche of unwanted emails or a sign-up process that requires extra work to turn on privacy features.
"They're trying to use emotional blackmail or coercive techniques to try to get you to do something," said Harry Brignull, a London-based expert in designing online user experiences who coined the term "dark patterns" in 2010.
There's often money at stake, and the financial costs have been piling up as more online services embrace subscription-based models. Last year, the re-election campaign of then-President Donald Trump was accused of duping people into weekly recurring payments.
In other cases, heavy-handed design tactics may have intangible costs such as privacy, time or sanity.
Last month, the Federal Trade Commission issued a warning that it's going to take a closer look, especially at those patterns that "trick or trap" consumers into subscription services. The commission and state agencies have brought many cases against subscription services or other businesses in the past, but the FTC said enforcement hasn't gone far enough.
"The number of ongoing cases and high volume of complaints demonstrate there is prevalent, unabated consumer harm in the marketplace," the FTC said in a 15-page statement. It said it receives thousands of complaints a year about tactics such as automatic renewals.
Many cases of alleged dark patterns already get scrutiny from other sources, including in class-action lawsuits in which the phrase "dark patterns" has come up recently in cases of disputed refunds or recurring subscriptions. In 2015, LinkedIn agreed to pay $13 million to settle a class-action lawsuit over the design of its sign-up process.
The FTC statement amounted to a warning shot for companies that may be engaging in similar activity now. The commission has been studying the issue for months and its new chair, Lina Khan, who was appointed by President Joe Biden, is a persistent critic of tech companies.
Brignull, who has a Twitter account to catalogue examples of dark patterns, said he thinks regulatory action is necessary because the problem won't fix itself. Even if app or website designers pledge to be more ethical, they generally don't have final say at a company, he said.
"Having a call to ethics or self-regulation doesn't work," he said. "Organizations need to know where the guide rails are. Otherwise, they'll just look at other, successful companies and say, 'That's what we need to do.'"
"Organizations need to know where the guide rails are. Otherwise, they'll just look at other, successful companies and say, 'That's what we need to do.'"
Harry Brignull, user experience designer
One big question facing the FTC and other enforcement agencies: Where should they draw the line between a harmless steer and a manipulative practice?
Part of the answer may be money lost by consumers, as the FTC has focused on costly subscriptions and less on other forms of harm. But the commission also laid out rules that companies should generally follow if they want to stay on the right side of the law and regulations. Among them: Marketers must obtain consumers' "express informed consent" for subscriptions, including those that start off as free and convert to paid plans.
The law firm Fenwick & West said in a note to clients after the FTC statement that businesses should review their existing websites and apps to ensure they're compliant, and "re-engineer" where necessary.
Another federal agency, the Securities and Exchange Commission, is looking at a related issue in app design: the "gamification" of investment trading through design elements. In August, it asked for public comment on whether the design choices encourage investors to trade more often, invest in different products or change their investment strategy.
Rep. Sean Casten, D-Ill., who has been calling for further government study of stock trading gamification, had earlier called on the SEC to look at trading apps such as Robinhood.
