'Dark Patterns' Bill Would Prohibit Duping People Into Ceding Privacy

Last June, the Norwegian Consumer Council issued a report accusing tech companies of duping people into accepting privacy settings that disclose too much information.

The report called out Google and Facebook, arguing that those companies manipulate users by "intrusive" default settings, and by require privacy-conscious users to navigate through numerous screens in order to opt out. Around the same time, the U.S. group Consumers Union (which publishes Consumer Reports) also said in a report that Facebook's privacy controls push people to share data. 

Now, two Senators have introduced a privacy bill that would regulate how companies obtain people's consent to data collection.

The Deceptive Experiences To Online Users Reduction (DETOUR) Act, unveiled this week by Sens. Mark R. Warner (D-Virginia) and Deb Fischer (R-Nebraska) would prohibit large platforms -- defined as companies with more than 100 million active users -- from using so-called “dark patterns” in their privacy policy interfaces.

“Dark patterns can take various forms, often exploiting the power of defaults to push users into agreeing to terms stacked in favor of the service provider,” the lawmakers said in a statement this week.

One example provided by lawmakers is that privacy settings “push users to 'agree’ as the default option,” while requiring those who want to opt out to click through multiple screens.

Warner's bill also would require large platforms to obtain people's informed consent before running psychological experiments. That provision comes in response to Facebook's 2012 social experiment on around 700,000 unsuspecting users.

For that test, Facebook manipulated users' news feeds to deliberately filter out some positive or negative posts. Researchers then observed people's reactions and concluded that moods spread online: people who were shown more negative posts themselves began posting more negative material, while those shown more positive ones responded with happier posts.

After the findings were published in 2014, Warner asked the FTC to investigate whether these types of experiments should be subject to oversight and review. At the time, he said he was “not convinced that additional federal regulation is the answer.”

But recent events -- ranging from news that Cambridge Analytica obtained data for up to 87 million Facebook users to reports that Russia interfered in the 2016 election by spreading propaganda through social media -- appear to have swayed the lawmaker.

Whether Warner's bill will go anywhere remains uncertain. But his proposals suggest that tech companies will face scrutiny on Capitol Hill not only over how they collect and use data, but also over more subjective factors -- including whether the language they use, and even their opt-out mechanisms, are too manipulative.

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