U.S. Privacy and Data Protection | Insights | Sept. 2024 (State Law)

Dark Patterns

For any business collecting user data, it's crucial to stay informed about the evolving regulatory landscape surrounding "dark patterns" in advertising and data privacy and security practices. Recent developments underscore the importance of staying ahead of compliance in this area.

Background

The Federal Trade Commission (FTC) has been increasingly vigilant about dark patterns, which they define as design practices that trick or manipulate users into making unintended choices. The agency has taken action against companies using these tactics, particularly in areas such as disguising ads as independent content, making subscription cancellations difficult, burying key terms or junk fees, and tricking consumers into sharing personal data.

In addition to federal efforts, multiplestates have taken proactive steps to address so-called dark patterns in privacy practices. Several have recently enacted state privacy laws to explicitly call out dark patterns, including the California Privacy Rights Act (CPRA) (which amended the California Consumer Privacy Act (CCPA)), the Colorado Privacy Act (CPA), and the Connecticut Data Privacy Act. These laws prohibit the use of dark patterns to obtain consumer consent for data collection and processing.

For instance, the CPRA defines dark patterns as "a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice." Similarly, the CPA requires businesses to obtain users’ consent through a clear, affirmative act from the consumer, explicitly stating that an agreement obtained through dark patterns does not constitute as valid consent. Other states, such as Indiana, Texas, Washington D.C., and Washington state, have also taken action against platforms alleged of using dark patterns to manipulate users into revealing additional location data. As more states enact comprehensive privacy laws, we expect to see increased scrutiny and enforcement actions against businesses employing deceptive design practices in their privacy interfaces.

CPPA's Enforcement Advisory

On September 4, 2024, the CPPA issued an Enforcement Advisory, specifically addressing dark patterns. Key points include:

• Dark patterns are user interfaces that subvert consumer autonomy and choice in privacy matters
• Businesses must present privacy choices clearly and symmetrically
• The focus is on the effect of the design, not the intent behind it

In other words, to avoid regulatory scrutiny, businesses should, among other things:

1. Review User Interfaces: Ensure privacy choices are presented clearly and symmetrically
2. Use Clear Language: Avoid confusing or misleading terminology in privacy options
3. Simplify Opt-Out Processes: Make it as easy to opt-out as it is to opt-in
4. Avoid Manipulative Design: Steer clear of interfaces that push users toward less privacy-protective options

Non-compliance with these guidelines could lead to:

• Enforcement actions by the FTC or state agencies
• Significant financial penalties
• Reputational damage
• Loss of consumer trust

Proactive Measures

It is also recommended that businesses conduct regular audits of digital interfaces, focusing on:

• Consent mechanisms
• Data collection practices
• Privacy settings and controls
• Subscription and cancellation processes

By prioritizing transparent and user-friendly design practices, businesses can not only comply with regulations, but also build intentional trust with their customers.

Conclusion

Kronenberger Rosenfeld, LLP regularly advises clients regarding advertising and privacy compliance. Contact our firm using our online case submission form here.