• by Wendy Davis  @wendyndavis, October 25, 2023

Siding with Amazon, tech industry groups are asking a federal judge to dismiss charges by the Federal Trade Commission that the company used “dark patterns” to trick consumers into purchasing Prime subscriptions and thwart cancellation attempts.

In a proposed friend-of-the-court brief filed Wednesday with U.S. District Court John Chun in Seattle, the organizations say the FTC is seeking to hold Amazon responsible under standards that haven't been codified in any laws or regulations.

“The cart is decidedly before the horse in this lawsuit,” the Computer & Communications Industry Association, NetChoice and Chamber of Progress write.

“Permitting this case to proceed will create uncertainty for all online subscription arrangements, because it could embolden regulators to impose any substantive decision reached here on absent parties -- regulation by way of litigation,” the groups add.

The organizations are weighing in on a lawsuit brought in June by the FTC, which alleged that Amazon's supposed use of “dark patterns” violated the federal Restore Online Shopper Confidence Act. That law requires companies to disclose all subscription terms in advance, and offer simple cancellation mechanisms.

The agency alleged that Amazon used “manipulative, coercive, or deceptive user-interface designs known as 'dark patterns' to trick consumers into enrolling in automatically-renewing Prime subscriptions.”

Prime costs around $15 a month (or $139 a year for people who pay annually), and offers subscribers discounts, free delivery of many items, access to streaming video through Prime Video and other benefits.

Many of the agency's allegations centered on the site's design.

For instance, the FTC alleged that Amazon's interfaces required shoppers to say whether they will enroll in Prime before completing a purchase. While Amazon allows consumers to decline enrollment, that choice is “less prominent” than the enrollment option, the FTC alleged.

The agency also said Amazon “knowingly complicated” the Prime cancellation process.

Amazon recently asked Chun to dismiss the lawsuit at an early stage, arguing that none of the FTC's allegations, even if proven true, would show the company deceived users or violated any laws.

The tech organizations agree, writing that the lawsuit “introduces uncertainty and discord to the online ecosystem, making companies second-guess the way that they interact with regulators and build their compliance programs.”