The Future of Manipulative Design Regulation

Regulators in the United States (U.S.) and around the globe are bringing enforcement actions and crafting rules intended to combat manipulative design practices online. These efforts are complex and address a range of consumer protection issues, including privacy and data protection risks. They raise thorny questions about how to distinguish between lawful designs that encourage individuals to consent to data practices, and unlawful designs that manipulate users through unfair and deceptive techniques. As policymakers enforce existing laws and propose new rules, it is crucial to identify when the design and default settings of online services constitute unlawful manipulative design that impairs user’s intentional decision-making. 

This post describes the current U.S. regulatory stance regarding manipulative design (also called deceptive design or “dark patterns”), highlighting major trends and takeaways. We start by reviewing how leading experts have distinguished between persuasive design and manipulative design. We then explain the most prominent rules that address manipulative design in the data protection context, as well as emerging proposals that seek to further regulate manipulative design. 

Recent laws and emerging proposals largely use a common approach to crafting these rules. Many focus on the role of design in consent flows and bar online services from acting, “to design, modify, or manipulate a user interface with the purpose or substantial effect of obscuring, subverting, or impairing user autonomy, decision-making, or choice.” Policymakers are particularly focused on analyzing the quality of organizations’ notices, the symmetry between consent and denial clickflows, the ease of cancellation or revocation of

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