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Dark Patterns Transcript KnowledgeVision | FTC_DarkPatterns_Workshop_04292021 KATHARINE Good morning, and welcome to "Bringing Dark Patterns to Light," the FTC's workshop on dark patterns. My name ROLLER: is Katharine Roller, and I'm an attorney from the Midwest regional office at the FTC. On behalf of the entire FTC workshop team, we're delighted that you're joining us today via our live webcast. Before we begin our program, I have a few administrative details to cover. First, a video recording and transcript of these proceedings will be available on our workshop web page shortly after the event. Our intent is to create a lasting resource for anyone who's interested in this important topic. Second, as with any virtual event, we may experience technical issues. If these occur, we ask for your patience as we work to address them as quickly as we can. We will let you know if there are going to be any significant delays. Third, we'll be accepting audience questions through our dedicated email address, [email protected]. Due to time constraints, we may not be able to get to all of the questions. But we will review every question that we receive. We are also seeking public comments until May 29 on the topics discussed today. Take a look at our event web page for information on how to submit comments. Finally, please join us on Twitter. Our Twitter handle is @ftc. And we'll be tweeting using the hashtag #darkpatternsftc. And now I have the great pleasure of introducing our first speaker, the acting chairwoman of the FTC, Rebecca Slaughter. Prior to joining the FTC as a commissioner, she served as Chief Counsel to Senator Charles Schumer of New York. Earlier in her career, she was an associate in the DC office of Sidley Austin LLP. She brings to the commission more than a decade of experience in competition, privacy, and consumer protection. Along with advocating for consumers, particularly those traditionally underrepresented and marginalized, she strongly supports working families and work-life balance. Welcome, Acting Chairwoman. REBECCA KELLYThank you, Katharine, and thank you for all the work that you and the rest of the team have done to put together SLAUGHTER: this important workshop today. On behalf of the agency and my fellow commissioners, I'd like to welcome all of our audience to today's virtual workshop, "Bringing Dark Patterns to Light." As the title suggests, today we'll be examining, through a series of presentations and panel discussions, so-called digital dark patterns, user interface designs that manipulate consumers into taking unintended actions that may not be in their interest. Dark patterns are part of a larger system of deceptive and manipulative practices that we see growing all too rapidly in the commercial digital surveillance economy. We're fortunate today to hear from a highly distinguished group of consumer advocates, academics, and designers, and also from Senator Mark Warner of Virginia and Representative Lisa Blunt Rochester of Delaware, who have introduced legislation in the Senate and House respectively that would further empower the FTC to address the harms of dark patterns. I'm pleased to welcome all of you. We know that, in today's digital marketplace, data is currency. And we increasingly see companies using dark patterns to manipulate people into giving up their personal data, which is then sold, aggregated, analyzed, and used to target advertising and manipulate future purchases and behavior. This conduct can be particularly pernicious when orchestrated by large platforms who may use data collected through dark patterns to enhance their own market power. We also see dark patterns used more directly to manipulate consumer behavior. Recently, the FTC has sued companies for forcing people to navigate a maze of screens and choices to cancel negative option subscription plans in ABCMouse, using inconspicuous dropdown links and autoscroll features to hide the material terms of virtual rent-to-own transactions in Progressive Leasing, and sneaking additional unwanted products into people's carts without their knowledge or consent in [INAUDIBLE]-- dark patterns all. Whether it is expanded data collection or specific behavioral manipulation, the motivation behind the use of dark patterns is often the same-- enhance a company's bottom line and market position in ways that may be harmful to its users or contrary to their intent. We need to understand the technologies and information asymmetries that are driving the use of dark patterns, the myriad harms that dark patterns can cause to consumers and competition, and consumer's ability or inability to detect and avoid these harms. Fundamental to understanding all of these details will be an analysis of the business incentives that drive the development and deployment of deceptive and manipulative technological tools. It's also crucial that we look at the impact dark patterns are having on different communities, especially those that have been and continue to be disadvantaged and marginalized in both the market and our broader society. Separately, we must consider how dark patterns affect people who may potentially be more susceptible to certain persuasive design elements, due to, for example, still-developing brains in the case of children, or lack of familiarity and exposure to digital technologies, which is an issue for some older folks. Finally, although the FTC can and should continue to aggressively pursue companies that use deceptive, unfair, or otherwise unlawful design tactics, it's important that we consider the challenges that the scale, sophistication, and personalization of dark patterns pose to our enforcement efforts. How can the FTC best target and prioritize our enforcement resources? Could our efforts be strengthened by the adoption of additional rules, guidance, or other policies? In grappling with these questions, the FTC has worked and will continue to work closely with our state and international partners, as well as with the advocacy community, all of whom are doing important work in this area, as you'll hear later today. And we are, of course, grateful to the leadership of elected officials, like Senator Warner and Congresswoman Blunt Rochester, who are working hard to ensure that our statutory framework keeps pace with and enables our enforcement efforts to keep pace with swiftly moving developments in the market. My hope is that today's workshop will help the FTC chart a path forward on these pressing questions. The time for us to get this right is now, as design interface is being fully optimized. We need comprehensive understanding and a comprehensive plan of action. If enforcement and regulation are unable to check the power of unsupervised algorithms, consumers will face deception by design. And for companies who may be listening today, I have this to say. If you have to resort to design tricks to obtain consumers' consent or to tracking or charges, you ought to think twice about your business model and how your design choices align with the principles of honesty and fairness. With that, I want to welcome Senator Warner, who will be delivering his remarks via video. MARK R. Hi, I'm Virginia Senator Mark Warner, and I want to thank the FTC for holding this very important workshop today. WARNER: It's addressing an issue that's very critical to me and something I think is absolutely essential that we get right. My background before I came to the Senate was in technology. And I am a big believer that technology can empower our lives. But I think we've also seen, recently, particularly when it comes to social media, that there is a dark underbelly in social media, on Facebook, on Instagram, on YouTube, on Twitter. And we have unfortunately seen that consumers are too often taken advantage of. It is absolutely critical that the FTC step up and figure out ways to make sure that consumers online are protected. One of the ways that we see this abuse take place is with deceptive tactics, which have been called dark patterns, where consumers, basically, looking for information or looking for an answer, are basically greeted with screenshot after screenshot, where virtually the only option is to agree. You have to go through a series of hoops and hurdles to ever kind of get out of that page, to say no, to say, I don't want to opt in and opt out. So I've set up legislation, bipartisan legislation, called the Detour Act, that would prohibit major social media platforms from using these deceptive patterns, these dark patterns. We've seen certain states start to adopt these rules. Now, I think bipartisan legislation like this is extremely important to take place. But I think, in the interim, and if Congress, which sometimes has not been all that good at getting its act together and acting, I believe, under Section 5 authority, that you can put in place a regulatory structure to try to protect consumers and prohibit this level of deceptive practices. I know some of the social media firms will fight this, because this goes at the heart of how they can gain more eyeballs and ultimately garner more information about all of us, that they can then sell and market. I have nothing-- I think there's nothing objectively wrong with that. But we need to make sure that consumers are not tricked into giving up that information. And too often, these patterns are the kind of very deceptive activities that trick consumers into giving up information that then these platforms can then market. We've got to sort this out. This is an issue that is extraordinarily complex for many of my colleagues. And while I'm hopeful that our Detour legislation, bipartisan, can be advanced into law, I think you at the FTC and consumer privacy experts can help us sort this out and make sure, whether we do this through legislative action or Section 5 authority, we make sure that consumers' experience on the web is one that safe, secure, and allows people to protect their privacy.
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