Information Technology and Innovation Foundation (ITIF) Vice President Daniel Castro has criticized the Federal Trade Commission's (FTC) announcement to take legal action against Amazon for allegedly tricking customers into signing up for its Amazon Prime service, saying the FTC was using bait-and-switch tactics.
“The FTC’s job is to enforce existing laws, not make up new ones to meet the whims of its commissioners. There is no federal law on ‘dark patterns,’ yet the FTC continues to accuse companies of violating this unwritten rule in an effort to regulate the design of online services,” Castro said in a statement issued June 21.
Online sellers must adhere to the Restore Online Shoppers’ Confidence Act (ROSCA), which prevents sellers from engaging in certain unfair practices.
Castro said in his statement that if Amazon or any other company violates this law, the FTC can and should hold them accountable. He said, however, that the FTC seems primarily concerned with accusing Amazon of violating its ill-defined objections to “dark patterns," a vague term used to describe any user interface design that the FTC believes manipulates consumers.
The FTC continues to argue that companies are engaging in "dark patterns", because it does not have to substantiate these claims, Castro said. These arguments are entirely subjective, which makes disproving the accusations nearly impossible for companies, he added.
Most design decisions can be looked upon as manipulating consumers, such as the size or color of a button on a website, Castro noted, although some sites might have poor design, it does not always make them criminal.
An intentional design is not necessarily nefarious, Castro's statement said. The FTC shouldn’t be surprised to find that companies want consumers to buy their products.
“Grocery stores put candy at the checkout counter, auto dealers upsell extended warranties and fast food restaurants offer to add drinks or a side to every order," Castro said. "Companies advertise to prospective customers. These may be manipulative practices, but they should not be illegal.”
Continual claims by the FTC about "dark patterns" are an effort to push the fiction that the tech industry is using behavioral psychology to “nefariously manipulate consumers into acting against their own interests,” he noted.
He went on to say that the federal agency makes this work because a settlement of a ROSCA claim by a company gets framed as a victory against “dark patterns.” Castro said that maneuver is a bait-and-switch tactic, something the FTC prohibits sellers from doing, so it should also avoid using it in its own policymaking.
