The Federal Trade Commission has turned an increased focus toward deceptive web design practices that play on human emotions, also known as "dark patterns."
The FTC sued Amazon in late June, alleging that the company had used "dark patterns" to make signing up for its premium service Amazon Prime significantly easier than it is to cancel the service. This lawsuit was followed by the FTC settling a suit against Publishers Clearing House over its alleged use of dark patterns. The two legal actions are representative of the agency's efforts under Chairwoman Lina Khan to clamp down on the widespread use of deceptive designs for profit.
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"There's no excuse for trying to deceive people into buying products or giving money to a political campaign," Mark Jamison, a senior fellow at the American Enterprise Institute, told the Washington Examiner. "I sympathize with diminishing people's propensity to use dark patterns. Whether it's justifying the lawsuit is another matter."
Dark patterns are deceptive practices incorporated into website or app designs that encourage users to make decisions they did not intend to. These include tricking users into buying products they don't desire, making cancellations difficult, or giving information to companies they had not intended to offer. The practice is considered illegal in the United States and the European Union under several laws, including the FTC Act.
It's unclear if Amazon's lawsuit will hold muster. Much of the suit has been redacted, noted Jamison, making it difficult to ascertain the specifics of either party's arguments.
The decision to sue Amazon was also made under Khan. The chairwoman has brought a more aggressive approach to the agency's enforcement in general. Khan has regularly gone after Amazon, writing a well-known 2017 paper, "Amazon's Antitrust Paradox." Amazon has asked that Khan be recused from all cases involving Amazon, a request that has been largely ignored.
The FTC began focusing on dark pattern designs in 2021 with a specific focus on "roach hotel" designs, which is when a company designs a product so that signing up for the service is easy but canceling it is significantly harder. Roach hotel design schemes are often used to make canceling newspaper subscriptions or streaming services harder than necessary.
The FTC released a report on dark patterns in September 2022, alleging that the practice was rising. It was used to disguise ads, complicate subscription cancellations, and trick users into handing over their data. The agency sued Fortnite developer Epic Games for $245 million in December for using dark patterns.
Amazon may not be the worst offender in the industry, however. News websites such as the New York Times require three times as many clicks to cancel a subscription as Amazon Prime, according to one academic study
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Khan has come under scrutiny for ignoring the advice of others when it comes to the FTC's lawsuits. The FTC chairwoman was accused by two congressional committee chairpeople of ignoring the agency's ethics guidelines when she decided to stop Facebook's parent company Meta's attempt to acquire the virtual reality developer Within.
Amazon and the FTC did not respond to requests for comment from the Washington Examiner.