DETOUR Act Would Target 'Deceptive' Edge Practices

Sens. Mark Warner (D-Va.) and Deb Fischer (R-Neb.) have introduced the Deceptive Experiences To Online Users Reduction (DETOUR) Act. which would prevent "large online platforms" from using so-called “dark patterns” to "trick consumers into handing over their personal data."

The bill would treat that as deception, something the FTC is empowered to combat using its Sec. 5 authority.

The legislation comes a year after Facebook CEO Mark Zuckerberg testified before a concerned Congress about the handling, or mishandling, of such data.

Dark patterns are social media interfaces designed to get users to take actions they might not otherwise take to establish setting or practices that aid the platform.

The bill:

1. "Enables the creation of a professional standards body, which can register with the Federal Trade Commission (FTC), to focus on best practices surrounding user design for large online operators. This association would act as a self-regulatory body, providing updated guidance to platforms on design practices that impair user autonomy, decision-making, or choice, positioning the FTC to act as a regulatory backstop.

2. "Prohibits segmenting consumers for the purposes of behavioral experiments, unless with a consumer’s informed consent. 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.

3. "Prohibits user design intended to create compulsive usage among children under the age of 13 years old.

4. "Directs the FTC to create rules within one year of enactment to carry out the requirements related to informed consent, Independent Review Boards, and Professional Standards Bodies."

“For years, social media platforms have been relying on all sorts of tricks and tools to convince users to hand over their personal data without really understanding what they are consenting to..." said Warner.

Related: Facebook's Zuckerberg Calls for Edge Regs

Examples, says Warner, include: "a sudden interruption during the middle of a task repeating until the user agrees to consent; a deliberate obscuring of alternative choices or settings through design or other means; or the use of privacy settings that push users to ‘agree’ as the default option, while users looking for more privacy-friendly options often must click through a much longer process, detouring through multiple screens."

“The tech industry has gone unchecked for far too long. Bold action is needed on a wide scale to change the incentives in Silicon Valley with our well-being in mind, especially when it comes to kids,” said Jim Steyer, CEO of Common Sense, which backs the bill.

"While the bill’s goals are laudable, its language is ambiguous and gives the Federal Trade Commission (FTC) the legal pretext to second guess every design decision by online companies," said American Action Forum director of technology and innovation policy Will Rinehart.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.