Shining a Light on Dark Patterns

I have always been fascinated with psychology. It was my major in college and one of my favorite reading topics ever since. So, what does psychology have to do with privacy? As it turns out, quite a lot. In particular, design patterns in digital platforms often leverage psychology to encourage individuals to interact with the platform in a pre-determined way. These design patterns are referred to as dark patterns.

The term dark patterns was first coined by website and user experience designer, Harry Brignull, in 2010 to describe deceptive design practices that are used to trick or nudge users to make unintended decisions.

These dark pattern design practices leverage psychology to exploit common cognitive biases (or mental shortcuts). For example, a dark pattern may make certain links or buttons very large or colorful, while hiding other links with smaller, harder to read font. This is intended to misdirect the user to the preferred larger, brighter link. Our busy, multi-tasking, brains seek to shortcut decisioning, thus, the easier to see link is more appealing and more likely to be chosen.

Deceptive design patterns rely on leveraging these intricacies of the human decision-making processes. The concept is far from novel and has been used for decades in the advertising industry. However, as regulators voice concern over privacy and data collection practices across digital platforms, these “unfair and deceptive” mechanisms, now referred to as dark patterns, have become a central focus of regulatory scrutiny.

The Federal Trade Commission (FTC) has been a vocal critic of dark patterns for several years, stating: “Our report shows how more and more companies are using digital dark patterns to trick people into buying products and giving away their personal information,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “This report—and our cases—send a clear message that these traps will not be tolerated.”

Recently, Arizona filed a lawsuit against Amazon focused on dark patterns. Namely, Amazon Prime’s cancellation process, which the suit alleges is intentionally confusing and misleading, a strategy Amazon called Project Iliad. Arizona’s Attorney General’s press release on the issue stated: “Amazon’s cancellation process allegedly required users to navigate a complicated and manipulative interface with skewed wording, confusing choices, and repeated nudging. Such methods, known as “dark patterns,” exploit cognitive biases to influence and manipulate consumer choices.”

While Arizona’s lawsuit is based on general consumer protection, it is a clear enforcement of a term that has been the focus of recent privacy laws as it relates to digital platforms. This type of action sets a clear expectation that regulators will continue to focus on dark patterns as unfair and deceptive to consumers. Further, as more states define and regulate dark patterns in their comprehensive privacy statutes, we can expect to see additional enforcement on this issue.

Business should consider a review of their digital platforms to identify areas of risk as it relates to how the platform flow is designed and how the user may be influenced or even prompted to make unintended decisions based on those designs.