Economic Questions:
How would the creation of a professional standards body at the FTC improve on the FTC’s current ability to enforce deceptive practices?
What is the definition of deceptive user interfaces or “dark patterns”? Does the FTC’s broad authority to investigate unfair and deceptive practices already include the misleading practices described in this bill?
Would this bill effectively regulate all A/B testing?
How much do dark patterns cost consumers each year? “Costs” might include purchases, information provided, or time wasted due to dark patterns. These estimates would be the expected benefits of the bill if it allowed consumers to avoid incurring the costs.
What deceptive advertising practices were considered nuisances in the past, how did policy deal with them, and what were the impacts of any policy actions?
Can such “best practices” be defined in ways specific enough that they do not inhibit creativity and cannot be used as tools for frivolous complaints by competitors, yet general enough that creators of dark patterns cannot simply move to other methods to accomplish their objectives?
Summary:
Introduced by Sen. Mark Warner (D-VA) and Sen. Deb Fischer (R-NE). The bill aims to stop the practice of using deceptive user interfaces, or “dark patterns,” to trick users into giving up their personal data. According to the bill, “dark patterns” can be interfaces in websites or apps specifically designed to mislead consumers into agreeing to settings that allow companies to collect data that elsewise would not have been collected. The bill calls for creation of a professional standards body at the FTC to create “best practices” surrounding the design of permissions. It also prohibits segmenting consumers for behavior experiments without explicit consumer consent, and requires an Independent Review Board for any study. It prohibits any design intended towards use for children below age 13.
Supporters want this bill to limit predatory practices in online marketing and data collection, focusing on the potentially manipulative content created by large platforms. The overall goal is to limit the power of these platforms to protect users, and allow people to gain autonomy over their online behavior.
Opposition to the bill comes mainly from the power given to the FTC. The sweeping, broad language of the bill gives regulators possibly expansive power in distributing punishments to large tech companies, which are the center of innovation and R&D in the US. The ambiguity also puts huge restrictions on social media sites, potentially making large parts of their operation illegal.