WASHINGTON –This week, U.S. Sens. Mark R. Warner (D-VA) and Deb Fischer (R-NE), joined by Sens. Amy Klobuchar (D-MN), and John Thune (R-SD), introduced the Deceptive Experiences To Online Users Reduction (DETOUR) Act to prohibit large online platforms from using deceptive user interfaces, known as “dark patterns,” to trick consumers into handing over their personal data. The bill would also require these platforms to obtain consent from users for covered research and prohibit them from using features that result in compulsive usage by children and teens.

The term “dark patterns” is used to describe online interfaces in websites and apps designed to intentionally manipulate users into taking actions they otherwise would not. These design tactics are frequently used by social media platforms to mislead consumers into agreeing to settings and practices more beneficial to the company. 

“Dark patterns – manipulative online designs that trick you into signing up for services you don’t want or spending money you don’t mean to – are everywhere online, and they make user experience worse, and data less secure. The DETOUR Act will end this practice while working to instill transparency and oversight that the tech world lacks,” said Sen. Warner. “Consumers shouldn’t have to navigate intentionally misleading interfaces and design features in order to protect their privacy.” 

“Manipulative 'dark pattern' interfaces trick users – including children – online. The ‘choices’ platforms present can often be deceptively obscured to exploit users' personal data and behavior,” said Sen. Fischer. “It’s wrong, and our bipartisan bill will finally crack down on this harmful practice. I encourage my colleagues to support the DETOUR Act to increase trust online and protect consumer privacy.”

Dark patterns can take various forms, pushing users into agreeing to terms stacked in favor of the service provider. These deceptive practices can include deliberately obscuring alternate choices or settings through design or other means or the use of privacy settings to push users to ‘agree’ as the default option while more privacy-friendly options can only be found through a much longer process, detouring through multiple screens. Frequently, users cannot find the alternate option, if it exists at all, and simply give up looking.

The result is that large online platforms have an unfair advantage over users and often force consumers to give up personal data such as their contacts, messages, web activity, or location in order to benefit of the company.

The Deceptive Experiences To Online Users Reduction (DETOUR) Act aims to curb this manipulative behavior by prohibiting large online platforms (those with over 100 million monthly active users) from relying on user interfaces that intentionally impair user autonomy, decision-making, or choice. The legislation:

• Prohibits large online operators from designing, modifying, or manipulating user interface with the purpose or substantial effect of obscuring, subverting, or impairing user autonomy, decision-making, or choice to obtain consent or user data.
• Prohibits subdividing or segmenting consumers for the purposes of behavioral experiments without a consumer’s informed consent, which cannot be buried in a general contract or service agreement. This includes routine disclosures for large online operators, not less than once every 90 days, on any behavioral or psychological experiments to users and the public. Additionally, the bill would require large online operators to create an internal Independent Review Board to provide oversight on these practices to safeguard consumer welfare.
• Prohibits user design intended to create compulsive usage among children and teens under the age of 17 years old.

“Social media companies often trick users into giving up their personal data – everything from their thoughts and fears to their likes and dislikes – which they then sell to advertisers. These practices are designed to exploit people; not to serve them better. Senator Warner and Senator Fischer’s DETOUR Act would put a stop to the destructive and deceptive use of dark patterns,” said Imran Ahmed, CEO of the Center for Countering Digital Hate.

“Momentum is building, in Congress and across the states, to force tech companies to reduce the serious harm to kids and teens caused by the way that these companies design and operate their platforms," said James P. Steyer, founder and CEO of Common Sense Media. “The reintroduction of the DETOUR Act comes at just the right time to add another important element of protection for children and their families. We applaud Senators Warner and Fischer for working together to try to stop companies from utilizing manipulative design features that trick kids into giving up more personal information and compulsive usage of their platforms for the sake of increasing their profits and engagement without regard for the harm it inflicts on kids.”

“The proposed legislation represents an important step towards reducing big tech companies’ use of dark patterns that prioritize user engagement over well-being. As a developmental scientist, I’m hopeful the DETOUR Act will encourage companies to adopt a child-centered approach to design that places children’s well-being front and center, reducing the burden on parents to look out for and avoid dark patterns in their children’s technology experiences,” said Katie Davis, EdD, Associate Professor at the University of Washington.

“The DETOUR Act proposed by Sen. Warner and co-sponsors represents a positive and important step to protect American consumers,” said Colin M. Gray, PhD Associate Professor, Indiana University. “DETOUR provides a mechanism for independent oversight over large technology companies and curtailing the ability of these companies to use deceptive and manipulative design practices, such as ‘dark patterns,’ which have been shown to produce substantial harms to users. This legislation provides a foothold for regulators to better guard against deceptive and exploitative practices that have become rampant in many large technology companies, and which have had outsized impacts on children and underserved communities.”

Sen. Warner, a former tech entrepreneur, has been one of Congress’s leading voices calling for accountability in Big Tech. He has introduced several pieces of legislation aimed at addressing these issues, including the ACCESS Act earlier this week, which will promote competition in social media by making it easier to transport user data to new sites; the RESTRICT Act, which would comprehensively address the ongoing threat posed by technology from foreign adversaries; the SAFE TECH Act, which would reform Section 230 and allow social media companies to be held accountable for enabling cyber-stalking, online harassment, and discrimination on social media platforms; and the Kids Online Safety Act, which would protect children online by providing young people and parents with the tools, safeguards, and transparency they need to protect against online harms. 

Full text of the bill is available here. 

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