Why the Checkbox Was Already Clicked: Fighting the Tricks Tech Companies Use to Get Your Data

April 9, 2019, 10:53 PM UTC

Two U.S. senators introduced a bipartisan bill that would ban “manipulative” design features and prompts that let large websites such as Alphabet’s Google or Facebook “trick consumers into handing over their personal data.”

Democratic Senator Mark Warner and Republican Senator Deb Fischer introduced the bill on so-called “dark patterns” on Tuesday, according to a news release from Warner’s office. Such features, based on behavioral psychology, include pre-checked boxes or pop-ups in the middle of an activity—such as an e-commerce purchase or reading a story online—that prompt users to consent to the collection of personal data.

The bill, which would only apply to websites with more than 100 million monthly active users, comes as anger with large internet platforms has led to rising calls for regulation. Although the bill introduced Tuesday is bipartisan, key committees that would have to legislate on the issue have not yet picked up the effort. So far, congressional efforts to pass a national privacy law have gained the most momentum with lawmakers.

“For years, social media platforms have been relying on all sorts of tricks and tools to convince users to hand over their personal data without really understanding what they are consenting to,” Warner, who serves as vice chairman of the Senate Intelligence Committee, said in a statement. The legislation is dubbed DETOUR, for “Deceptive Experiences to Online Users Reduction” Act.

Representatives for (FB)Facebook and Twitter declined to comment beyond saying the companies would review specifics of the bill. A representative for (GOOG)Google didn’t immediately respond to a request for comment.

The term “dark pattern” was coined by design researcher and cognitive scientist Harry Brignull in 2010 to refer to any tricky or coercive website or app design that tried to get a user to take—or not take—a certain action. In a series of tweets on Tuesday, Warner cited deceptions such as the placement of an apparent smudge or stray hair over an ad to get a click from a user trying to wipe it away. But dark patterns are all over the web, and are core to the way companies like Facebook, Twitter, and Google do business, Brignull said on Tuesday.

Facebook has a well-documented history of sending emails and text messages to users who haven’t visited the site for a while, urging them to return. Tech companies in the past have also turned on data-sharing by default, or have hidden the ability to opt out of sharing behind layers of settings.

“In the last 10 years these tricks have become much more widespread,” Brignull said. “All of the big tech platforms use these kinds of tricks one way or another.”

One of the goals of the landmark European privacy rules that came into force last year was to give internet users more clarity about what they were consenting to. That’s led to a battery of new pop-ups asking people for data every time they go to a website, prompting many to simply click yes to avoid the annoyance.

In addition to making it illegal for large platforms “to design, modify, or manipulate a user interface with the purpose or substantial effect of obscuring, subverting, or impairing user autonomy, decision-making, or choice to obtain consent or user data,” the bill would prohibit dividing up consumers to perform behavioral experiments without their consent and would stop designs that are meant “to create compulsive usage among children.”

The bill won’t penalize big advertising platforms like Facebook and Google’s YouTube for running ads that exhibited “dark patterns,” because a third party is creating and paying for the ad, a Warner spokeswoman said.

The bill attracted praise from a policy executive at Microsoft, Fred Humphries, who said the company supports the lawmakers’ efforts to protect people from exploitative and deceptive practices. Software giant Microsoft has previously called for ethics standards in its artificial intelligence business as well as regulations on privacy and content liability that could also affect large social media sites and their ad-driven businesses.

Earlier this month, top Republican senators expressed optimism about the efforts of a bipartisan foursome of lawmakers from the chamber who are seeking to write a comprehensive privacy bill, but they declined to say how close the legislation might be or if they’d reached compromises with Democrats on key divisions, including the role of state laws.

In addition to regulatory scrutiny, such as a Federal Trade Commission probe of Facebook’s data-sharing practices, lawmakers and activists have also expressed concerns about—or sought to regulate—tech issues including inappropriate content, product placement aimed at kids, fake news, data lapses, election meddling, and alleged political bias. Several bills have landed that are unlikely to pass, but incorporate ideas that could make it into future legislation as Washington comes to grips with policy issues related to technology.

On Tuesday, a House committee also held a hearing on white supremacy, where representatives from Google and Facebook testified.

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