Bringing Dark Patterns to Light

STAFF REPORT | SEPTEMBER 2022

Introduction
For decades, unscrupulous direct mail marketers and brick-and-mortar retailers have
relied on design tricks and psychological tactics, such as pre-checked boxes, hard-to-find-and-
read disclosures, and confusing cancellation policies, to get consumers to part with their money
or data. As more and more commerce has moved online, so too have these manipulative design
practices—termed “dark patterns”—only they have grown in scale and sophistication, creating
ever greater challenges for consumers. 1

As the nation’s leading consumer protection agency, the Federal Trade Commission’s
(“FTC”) mission is to stop deceptive or unfair business practices in the marketplace, including
those that take the form of dark patterns. 2 The FTC has, for example, sued companies for
requiring users to navigate a maze of screens in order to cancel recurring subscriptions, using
non-descript dropdown arrows or small icons to hide the full cost and other terms of rent-to-own
or other payment products, and even sneaking unwanted products into consumers’ online
shopping carts without their knowledge. 3 More recently, the agency issued an enforcement
policy statement that warned companies against deploying illegal practices that trick or trap
consumers into subscription services. 4

On April 29, 2021, the FTC hosted a public workshop on digital dark patterns and
explored whether user interfaces can have the effect of obscuring, subverting, or impairing
consumer autonomy and decision-making. 5 The workshop featured a variety of speakers,
including consumer advocates, members of Congress, researchers, legal experts, and other
industry professionals. In this Staff Report, we discuss key topics from the workshop and
academic literature, including the rise of dark patterns in the digital marketplace and common
types of dark patterns. (See Appendix A.) For each common dark pattern addressed, we discuss
consumer protection concerns and recommendations for companies.

FTC BUREAU OF CONSUMER PROTECTION • FTC.GOV

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Background
Coined in 2010 by user design specialist Harry Brignull, the term “dark patterns” has
been used to describe design practices that trick or manipulate users into making choices they
would not otherwise have made and that may cause harm. 6 As the workshop’s panelists noted,
dark patterns often take advantage of consumers’ cognitive biases to steer their conduct or delay
access to information needed to make fully informed decisions. 7 Research shows that dark
patterns are highly effective at influencing consumer behavior. For example, one study
discussed at the workshop found that dark patterns doubled the percentage of consumers who
signed up for a dubious identity theft protection service, as compared to consumers who were
presented with a neutral interface. And these effects increased significantly when test subjects
were exposed to more than one dark pattern. 8

…the term “dark patterns” has been used to describe design practices that
trick or manipulate users into making choices they would not otherwise have
made and that may cause harm.

Dark patterns often are not used in isolation and tend to have even stronger effects when
they are combined. 9 (See Appendix B.) Multiple examples from FTC enforcement matters bear
this out. In Raging Bull, for instance, the FTC alleged that the operators of an online stock
trading site used deceptive customer testimonials to lure consumers in, hid purported disclaimers
in dense terms and conditions text boxes that required scrolling to find, and sold services as a
subscription but made it difficult to cancel and stop the recurring charges. 10 The combination of
these dark patterns had a compounding effect, increasing the impact of each and exacerbating the
harm to the consumer.

Panelists noted that the use of manipulative design techniques in the digital world can
pose heightened risks to consumers. 11 The pervasive nature of data collection techniques, which
allow companies to gather massive amounts of information about consumers’ identities and
online behavior, enables businesses to adapt and leverage advertisements to target a particular
demographic or even a particular consumer’s interests. 12 Moreover, companies that market
online can experiment with digital dark patterns more easily, frequently, and at a much larger
scale than traditional brick-and-mortar retailers, to determine which design features most
effectively influence consumer behavior. 13 (By contrast, consider the practical difficulties of
incessantly rearranging the aisles of a grocery store that places sugary cereals at toddler eye-level
and candy bars at the register to do the same.) 14 This type of design experimentation, if used to
deceive consumers or manipulate them into taking unwitting or detrimental actions, is a signal of
dark patterns at work. 15

…the use of manipulative design techniques in the digital world can pose
heightened risks to consumers.
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An example of this design experimentation is in the FTC’s action against Credit Karma. 16
Credit Karma advertises third-party financial products, such as credit cards, and provides links
for consumers to apply for offers. Credit Karma conducted A/B testing, which is an experiment
where a company shows consumers two or more variants of something, such as an advertisement
or a webpage, to determine which one performs better. Credit Karma compared how consumers
reacted to being told that they had been “pre-approved” for a credit card (a false claim, according
to the FTC’s complaint) versus being told that they had “Excellent” odds of being approved.
The company ultimately decided to employ the allegedly false “pre-approved” claim, which the
A/B testing had shown yielded a greater click rate. 17

Dark patterns can be found in a variety of industries and contexts, including

ecommerce, cookie consent banners, children’s apps, subscription sales, and
more.

Dark patterns can be found in a variety of industries and contexts, including ecommerce,
cookie consent banners, children’s apps, subscription sales, and more. 18 (See Appendix A.) The
specific types of dark patterns consumers are most likely to face differ depending on the types of
websites or apps they frequently use. 19 The medium through which consumers access online
information also affects the number and types of dark patterns they may encounter. Studies
show that some dark patterns are more common in mobile apps than on websites. 20
Additionally, some design techniques are more effective on smaller screens than on larger ones.
Many companies, for instance, are able to hide important information from consumers on their
mobile devices because the amount of scrolling required makes it unlikely that people will see
it. 21 Such dark patterns may have a differential impact on lower-income consumers or other
vulnerable populations who are more likely to rely on a mobile device as their sole or primary
access to the internet. 22 Workshop panelists and researchers in the field note that dark patterns
may also appear in new and evolving modalities such as augmented reality (AR) and virtual
reality (VR) technologies, exposing consumers to manipulation on a whole new plane. 23

Dark patterns also raise special enforcement challenges. Because dark patterns are covert
or otherwise deceptive, many consumers don’t realize they are being manipulated or misled. 24
Workshop participants theorized that even when consumers do realize they have been deceived,
many don’t report their experiences, some out of an unnecessary feeling of embarrassment at
being tricked. 25 That is why the FTC’s workshop brought together enforcement agencies,
academic researchers, and consumer advocates to share their knowledge of dark patterns, explore
whether they harm consumers, and, when practices were identified as unfair or deceptive, how to
best address and eliminate them. In this paper, we shine a further light on some common dark
patterns and the harms they cause consumers, while putting businesses on notice that the FTC
will continue scrutinizing these practices.

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Common Dark Patterns & Consumer Protection

Concerns
In this section, we describe examples of common dark patterns—using recent FTC
enforcement actions as well as insights from workshop participants—to illustrate the harms
posed to consumers and provide recommendations for businesses.

I. Design Elements that Induce False Beliefs

Some dark patterns manipulate consumer choice by inducing false beliefs. 26 For
example, a company may make an outright false claim or employ design elements that create a
misleading impression to spur a consumer into making a purchase they would not otherwise
make. Classic examples of these types of deceptive dark patterns include advertisements
deceptively formatted to look like independent, editorial content 27 and purportedly neutral
comparison-shopping sites that actually rank companies based on compensation. 28 Workshop
panelists also discussed countdown timers on offers that are not actually time-limited, 29 claims
that an item is almost sold out when there is actually ample supply, 30 and false claims that other
people are also currently looking at or have recently purchased the same product. 31

…disguised advertising and promotional messages are deceptive when they

mislead consumers into believing they are independent, impartial, or not from
the sponsoring advertiser itself.

The FTC long has taken action against dark patterns involving companies that use ads
deceptively formatted to look like news articles to entice consumers to buy their products. 32 As
explained in the FTC’s Enforcement Policy Statement on Deceptively Formatted Ads, disguised
advertising and promotional messages are deceptive when they mislead consumers into believing
they are independent, impartial, or not from the sponsoring advertiser itself. 33 A recent example
is an FTC action charging Effen Ads, the operators of a work-from-home scheme, with using
fake news stories to trick consumers into buying their program. 34 According to the complaint,
Effen Ads sent unsolicited emails to consumers that included “from” lines that falsely claimed
they were coming from news organizations like CNN or Fox News. 35

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Figure 1: Effen Ads

The FTC’s complaint states that consumers who clicked on the links in these emails were
routed to additional fake online news stories, and then eventually routed to Effen Ads’ sales
websites, which pitched the company’s work-from-home schemes. 36 These sites guaranteed
consumers would make hundreds of dollars if they paid an upfront fee of $97 and worked from
home only one hour a day. In reality, according to the complaint, the emailed articles were fake,
and the upfront fee didn’t result in an actual job. 37

Comparison websites can also induce false beliefs in consumers when the overall net
impression created by various design elements is deceptive. 38 For example, consumers who visit
websites where companies have created rankings lists, posted consumer reviews, or otherwise
endorsed third parties expect these recommendations to be objective and unbiased. 39 When they
aren’t—and instead are based on whether the third parties are paying to be promoted, a personal
relationship, or other connections— these sites are deceptive. These supposedly neutral rankings
sites are using a dark pattern to manipulate consumer choice. 40 Knowing that there is a payment
relationship or other connection between the reviewer and the third party would affect the weight
or credibility consumers give the review and may influence whether and to what extent
consumers choose to interact with that content at all. 41 Deceptive ranking sites may also
undermine fair competition, disadvantaging those companies that won’t pay-to-play. 42

The FTC’s action against the loan comparison website LendEDU.com is instructive. 43
As detailed in the FTC complaint, LendEDU used its rankings to sort companies in rate
comparison tables, thereby giving consumers the impression that LendEDU had evaluated the
top-listed company to be the best. 44
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Figure 2: LendEDU Rate Comparison Tables

In reality, the FTC alleged, LendEDU boosted companies’ numerical rankings and
positions on rate tables based exclusively on how much they paid LendEDU. 45 Also, as alleged
in the complaint, LendEDU falsely represented to consumers that its rankings of financial
services companies were “objective,” “honest,” “accurate,” and “unbiased.” 46 Well aware of the
effect on consumers, LendEDU employees enticed lenders to pay more by touting statistics
showing that consumers were more likely to click on companies in better positions, according to
the FTC’s complaint. 47

To comply with the FTC Act, companies should make certain that their online interfaces
do not create false beliefs or otherwise deceive consumers. Companies are on the hook for the
net impression conveyed by the various design elements of their websites, not just the veracity of
certain words in isolation. 48 For example, companies shouldn’t give the impression that a
ranking or review is objective and unbiased if it is based on or affected by third-party
compensation. 49 And if an advertisement strongly resembles editorial content such as a news
article, or appears formatted as native content in a publication with a strong journalistic brand, it
is unlikely disclaimers will overcome the deceptive net impression. 50 Overall, when designing
user interfaces, businesses should look not just at the effect their design choices have on sales,
click-through rates, or other profit-based metrics, but also on how those choices affect
consumers’ understanding of the material terms of the transaction. 51 And if a business becomes
aware that a particular design choice manipulates consumer behavior by inducing false beliefs,
the company should remediate the problem.

Overall, when designing user interfaces, businesses should look not just at the
effect their design choices have on sales, click-through rates, or other profit-
based metrics, but also on how those choices affect consumers’ understanding
of the material terms of the transaction.

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II. Design Elements that Hide or Delay Disclosure of Material

Information
Some dark patterns operate by hiding or obscuring material information from consumers,
such as burying key limitations of the product or service in dense Terms of Service documents
that consumers don’t see before purchase. 52

Similarly, some dark patterns trick people into paying hidden fees. For example, the FTC
charged that the LendingClub Corporation deceived consumers about hidden fees associated
with its online loans. 53 According to the FTC’s complaint, LendingClub used prominent visuals
to falsely promise loan applicants that they would receive a specific loan amount and pay “no
hidden fees,” when in reality the company deducted hundreds or even thousands of dollars in
hidden fees from the loans it disbursed. 54

The FTC’s complaint lays out how LendingClub hid the existence of its fees.
LendingClub used tooltip buttons 55 consumers were unlikely to click on during the online
application process, and buried mention of fees later in the application process in an un-bolded
itemization sandwiched between more prominent, bolded paragraphs. 56 Furthermore, according
to the FTC, in standard screen configurations, the fees appeared “below the fold” and thus
required scrolling to be visible. 57 Consumers frequently reported that they only discovered the
fee after LendingClub disbursed their loan proceeds, upon seeing that the disbursal amount was
smaller than expected. 58

Figure 3: LendingClub Tooltip

On mobile devices, information about the upfront fee and total amount received was not
displayed until the consumer had scrolled down approximately four times, depicted below.

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Figure 4: LendingClub Mobile Application Process

Another variation on the hidden-fee dark pattern is “drip pricing,” in which firms
advertise only part of a product’s total price to lure in consumers, and do not mention other
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mandatory charges until late in the buying process. Drip pricing interferes with consumers’
ability to price-compare and manipulates them into paying fees that are either hidden entirely or
not presented until late in the transaction, after the consumer already has spent significant time
selecting and finalizing a product or service plan to purchase. 59 Panelists at the FTC’s workshop
discussed how consumers feel committed to a purchase by the time they reach the checkout
screen, and feel “really frustrated that, when they begin this process, they have no idea how
much it costs until it’s too late.” 60

Drip pricing costs consumers money—one study compared consumer expenditures on a

ticketing website that uses drip pricing versus one that disclosed mandatory fees upfront and
found that “users who weren’t shown the ticket fees upfront ended up spending about 20% more
money and were 14% more likely to complete [the transaction].” 61 Drip pricing can also weaken
competition by making it harder for consumers to price-compare across sellers. 62 An honest
business that sets forth the total price of its product at the outset will be at a significant
disadvantage when compared to a seller that advertises an artificially low price to draw
consumers in, then adds mandatory charges late in the transaction. As discussed at the
workshop, companies should include any unavoidable and mandatory fees in the upfront,
advertised price, and failure to do so has the potential to deceive consumers in violation of the
FTC Act. 63 Relatedly, companies must not mislead consumers to believe that fees are mandatory
when they are not. 64

…companies should include any unavoidable and mandatory fees in the

upfront, advertised price, and failure to do so has the potential to deceive
consumers in violation of the FTC Act.

Further, particularly where the drip pricing practices involve a credit product, companies
must make sure their practices don’t treat consumers differently on the basis of race, national
origin, or another protected characteristic. 65 The FTC has brought several actions against brick-
and-mortar retailers engaged in dark patterns involving drip pricing, charging companies with
violations of the FTC Act and ECOA. 66 Additionally, companies whose sales practices target a
specific audience, such as children, older adults, or native speakers of other languages, must take
into consideration how their claims and design choices will be perceived by these groups. 67 For
example, if a business markets a product to older adults, it should avoid design elements that are
harder for older consumers to perceive, such as putting important information at the periphery of
the screen or in a light color. 68 Also problematic are disclosures made with poor color contrast,
such as a white-text disclosure on a yellow background. 69 Failing to factor this in can lead to
law violations, including of the FTC Act and COPPA. 70

…particularly where the drip pricing practices involve a credit product,

companies must make sure their practices don’t treat consumers differently on
the basis of race, national origin, or another protected characteristic.

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III. Design Elements that Lead to Unauthorized Charges

Another common dark pattern involves tricking someone into paying for goods or
services that they did not want or intend to buy, whether the transaction involves single charges
or recurring charges. 71 Along with wasting consumers’ time and money, these dark patterns can
undermine consumer trust in the market, ultimately hurting other companies who engage in
legitimate and honest practices. 72

Several workshop panelists raised concerns about dark patterns that result in
unauthorized charges. One panelist explained how dark patterns can be deployed in children’s
gaming apps: “Let’s say the green button is the button they click to advance from one level to the
next level. And then suddenly, that button is suddenly a ‘Buy’ button. Most children will have
been caught, because they’ve been clicking, clicking, clicking, clicking, and suddenly that’s a
‘Buy’ button.” 73

The FTC has brought enforcement actions against companies involving kids’ in-app
charges. This was the central issue in the FTC’s actions against Amazon, Apple, and Google. 74
Amazon, for example, charged parents and other accountholders for kids’ purchases in mobile
apps hosted on its app store. 75 The company advertised kids gaming apps as “free” while
burying in fine-print on app description pages the fact that app users could make in-app
purchases. 76
Figure 5: Amazon App Store Example

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Once the account holder downloaded the app and children began playing the game,
unbeknownst to the account holder, kids could simply rack up multiple charges, ranging from
$0.99 to $99.99 each, by tapping buttons, with no account holder involvement. These purchases
were often disguised as play. As explained by the judge in the case decision, “a child may be
prompted to use or acquire seemingly fictitious currency, including a ‘boatload of doughnuts, a
can of stars, and bars of gold,’ but in reality the child is making an in-app purchase using real
money.” 77 Amazon later added a password prompt for account holders only for in-app purchases
of $20 or more, and eventually added one in other situations, though not consistently. However,
even that prompt failed to disclose that authorizing a single purchase also authorized unlimited
purchases for the next 60 minutes. 78 Ultimately, Amazon was forced to make more than $70
million in refunds available to consumers. 79

Another frequent example of a dark pattern resulting in unauthorized charges is when a

company deceptively offers a free trial period, but then, unbeknownst to the consumer, the trial is
followed by a recurring subscription charge if the consumer fails to cancel. One workshop
panelist discussed his research on dark patterns in the context of a free trial offer. A control
group of consumers was told they would receive a one-month free trial of data protection
followed by monthly charges if they failed to cancel, while the “hidden information” group was
told they would receive a one-month free trial and that terms and conditions apply. For the latter
group, the automatic monthly charge information was included only in small gray font at the
bottom of the page. 80 The dark pattern was highly effective. More than twice as many
consumers in the hidden information group accepted the free trial offer as compared to
consumers in the control group. 81

Seeing a rise in these types of dark patterns, the FTC hosted a workshop 82 in 2007 to
analyze the marketing of goods and services through offers with negative option 83 features, then
issued a staff report in 2009 that set forth principles to guide sellers offering negative options
online. 84 Following this guidance, and years of FTC cases tackling negative option-related
deception under the FTC Act and the Negative Option Rule, 85 Congress enacted the Restore
Online Shoppers’ Confidence Act (“ROSCA”) in 2010. 86 ROSCA prohibits charging for goods
and services sold over the internet using a negative option feature unless the seller (1) clearly and
conspicuously discloses all material terms of the transaction before obtaining the consumer's
billing information; (2) obtains a consumer's express informed consent before charging the
consumer's account; and (3) provides simple mechanisms for a consumer to stop recurring
charges. 87 Since then, the FTC has used ROSCA as an additional tool to challenge a variety of
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harmful negative option practices that saddle consumers with recurring payments for products
and services they never intended to purchase or that they do not wish to continue purchasing. 88

The FTC’s first action alleging ROSCA violations charged Health Formulas, LLC, and
several related companies and individuals with advertising “free” trial offers for dietary
supplements, but then automatically charging those who signed up $60-$210 per month after the
free trial unless they took action to cancel. 89 According to the complaint, the free trial was
prominently displayed, while the monthly charges were buried in the middle of smaller, dense
font. 90

Figure 6: Health Formulas Example

A related dark pattern makes it hard for consumers to cancel subscription services,
resulting in ongoing recurring charges. 91 The FTC’s complaint against ABCMouse, the
operators of a children’s online learning site, offers a particularly striking example of how dark
patterns can be used to block consumers’ cancellation attempts. 92 According to the FTC,
ABCMouse enrolled consumers into 30-day free trials or into 6- or 12-month memberships and,
despite promising “Easy Cancellation,” many consumers could not cancel even after repeated
attempts at calling, emailing, and contacting ABCMouse through a customer support form. 93

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The complaint alleges that the company rejected any cancellation attempt through one of
these methods and instead required consumers to navigate a difficult-to-find, lengthy, and
confusing cancellation path on the website. 94 Consumers allegedly had to click through several
pages of promotions and links that, when clicked, directed consumers away from the cancellation
path without warning. 95 For example, the first screen in the path, depicted below, did not
mention the word cancellation anywhere or tell consumers that they had arrived at the correct
place to cancel:
Figure 7: First Screen in ABCMouse Cancellation Path

Another screen in the cancellation path offered consumers a “special Upgrade offer.”
Only by clicking the “Continue” button could consumers proceed with cancellation, even though,
according to the FTC’s complaint, the screen appeared to be an offer for a different product.

Figure 8: Another of Several Screens in ABCMouse Cancellation

Path

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In total, the FTC alleged that ABCMouse required consumers to navigate between six
and nine screens to cancel their memberships, and consumers could not skip ahead or cancel
without visiting each screen. 96 Further, according to the FTC, each screen included multiple
links and buttons that, if pressed, would take consumers out of the cancellation path altogether. 97
This is a prime example of what one workshop panelist referred to as “sludge”: “a high friction
experience that, by its nature, causes people to become fatigued and give up.” 98 It is also a dark
pattern, an unfair practice under the FTC Act, and a ROSCA violation arising from the failure to
provide a simple mechanism to cancel. 99

How can a company obtain express informed consent from consumers before charging
them? The answer depends on the circumstances, 100 but at a minimum, companies looking to
stay on the right side of the law should make sure their procedures for obtaining consent include
an affirmative, unambiguous act by the consumer. 101 Companies should not hide key terms of a
purchase in a general terms and conditions document or behind hyperlinks, pop-ups, or drop-
down menus. 102 Acceptance of a general terms of use document that contains unrelated
information does not constitute affirmative, unambiguous consent to a particular purchase.
Likewise, manipulating consumers into agreeing by employing digital dark patterns designed to
subvert their autonomy or impair their decision-making does not effectuate express informed
consent.

Companies looking to stay on the right side of the law should make sure their
procedures for obtaining consent include an affirmative, unambiguous act by
the consumer.

Companies should ensure they obtain the express informed consent of the accountholder
to any charges. This point is critical in mobile apps and games often played by children, where
the accountholder may be a parent or someone other than the child who is playing the game.
This is also an important consideration for consumers who may have multiple adults sharing a
device. 103

Companies should ensure they obtain the express informed consent of the
accountholder to any charges.

With respect to cancellation, as explained in the FTC’s Enforcement Policy Statement on

Negative Option Marketing, ROSCA requires online negative option sellers to provide a simple
mechanism for consumers to cancel. 104 To meet this standard, negative option sellers should
provide cancellation mechanisms that are at least as easy to use as the method the consumer used
to buy the product or sign up for the service. 105 This means that consumers should be able to
cancel their subscription through the same medium (such as a website or mobile application) that
the consumer used to sign up for the negative option plan in the first place. 106 It also means that
negative option sellers should not subject consumers to new offers or similar attempts to save the
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account that impose unreasonable delays on consumers’ cancellation efforts. 107 In addition, if
the seller provides for telephone cancellation, it should, at a minimum, answer all calls to its
cancellation number during normal business hours, within a short time frame. 108 Calls to cancel
should not be lengthier or otherwise more burdensome than the telephone call the consumer used
to sign up.

…negative option sellers should provide cancellation mechanisms that are at

least as easy to use as the method the consumer used to buy the product or sign
up for the service.

IV. Design Elements that Obscure or Subvert Privacy Choices

Another pervasive dark pattern involves design elements that obscure or subvert
consumers’ privacy choices. Because of dark patterns, consumers may be unaware of the
privacy choices they have online or what those choices might mean. 109 This may result in a
significant deviation from consumers’ actual privacy preferences. 110

The FTC has been addressing dark patterns through privacy cases and policy work for
many years. Workshop panelists noted that dark patterns that subvert consumer privacy
preferences often take the form of a purported choice offered to consumers related to their data,
except that choice is illusory and presented in a way that nudges consumers toward increased
data sharing. 111 As discussed in further detail below, workshop panelists discussed how
companies incorporate dark patterns into their products in various ways, including through user
interfaces that:

(1) do not allow consumers to definitively reject data collection or use;

(2) repeatedly prompt consumers to select settings they wish to avoid;
(3) present confusing toggle settings leading consumers to make unintended privacy
choices;
(4) purposely obscure consumers’ privacy choices and make them difficult to access;
(5) highlight a choice that results in more information collection, while greying out the
option that enables consumers to limit such practices; and
(6) include default settings that maximize data collection and sharing.

The workshop panelists discussed various examples of dark patterns relating to

information collection. For instance, one panelist pointed to the commonly used cookie consent
dialogue—presenting the consumer with the option whether to allow the company to set a
cookie—as one example of a user interface that highlights the company’s preferred choice while
greying out the disfavored option. 112 This interface “places the option to accept cookies front
and center, while the option to deny or modify cookie settings is usually behind, perhaps, several
different screens.” 113 Another researcher noted that even where users are asked to provide
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consent, they are often not informed in a clear and understandable way about the practices that
they are being asked to approve. 114

The workshop panelists also discussed examples of interfaces that maximize information
collection and sharing, such as using default settings to make consumer data collection difficult
to avoid, even when such collection is unnecessary. 115 One researcher explained that companies
now frequently collect mobile phone numbers by default; she argues these numbers have become
“the new Social Security number” because consumers so rarely change them. 116 As such, she
stated that mobile numbers are seldom actually needed for the provision of an online service, but
“companies are often eager to get those [numbers] because it’s another way they can identify
you,” and target you with advertising. 117 Another example of a default setting maximizing data
collection discussed at the workshop was the set-up flow for Google’s Android phones, which
the researcher argued encourages consumers to enable location collection because “the way
[Google] portrayed the choices was in such a manner that you would turn on location
tracking.” 118 As the researcher explained, location data is extremely valuable and can reveal
sensitive details about consumers including where they live and work and even their sexual
orientation or political and religious affiliations. 119 In fact, the FTC sued data broker Kochava,
Inc., related to its sale of consumer location data. 120 The FTC alleged in its complaint that
Kochava sold geolocation data from hundreds of millions of mobile devices—data that can be
used to trace the movements of individuals to and from sensitive locations, including
reproductive health clinics, places of worship, and domestic violence shelters, among others. 121
Thus, subverting a consumer’s privacy intentions with respect to location information would be
highly problematic.

…subverting a consumer’s privacy intentions with respect to location

information would be highly problematic.

In addition to the dark patterns discussed at the workshop, the recent FTC Staff Report on
the privacy practices of major internet service providers (“ISPs”) 122 pointed to similar dark
patterns in those companies’ user interfaces. 123 First, certain ISPs included interfaces where the
ISP’s preferred choice was highlighted while the alternative (less favorable to the ISP) was
greyed out (e.g., the “Accept” choice is in a bold, blue background, while “Reject” is in muted
grey, almost resembling an inactive button). 124 The Staff Report explained how such an
interface may indicate to consumers that they have no choice but to select “Accept,” or might
lead consumers to select “Accept” out of expediency without realizing their ability to “Reject”
due to the difference in prominence of the two choices. Second, the Report highlighted
interfaces that do not allow consumers to reject data collection or that continuously prompt
consumers if they select a disfavored setting. For example, a consumer may be asked to either
“accept” the collection of their location information or choose “remind me later,” which leads to
repeated prompting until a consumer finally succumbs and accepts—likely out of frustration. 125
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Notably, in this situation, the company does not even give a consumer an option to reject data
collection altogether. Third, consumer privacy choices may be buried or hidden from
consumers, forcing them to search through a number of tabs and sub-tabs in order to review and
change their privacy preferences. 126 Finally, the report found unclear toggle settings that can
confuse consumers into selecting a privacy setting they did not intend. For example, a “Do Not
Sell My Information” option followed by an “off” toggle creates a double negative and might
make it unclear whether consumers need to toggle the setting on or off to prohibit the sale of
their information. 127

In addition to our workshops and our ISP 6b study, the FTC has brought cases against
companies that use dark patterns to subvert consumer privacy choices. One example is the
Commission’s case against Vizio, a smart-TV manufacturer. In Vizio, 128 the FTC alleged that
the company enabled a default setting called “Smart Interactivity,” which enabled consumers to
receive “program offers and suggestions,” but in reality allowed Vizio to comprehensively
collect and share consumers’ television viewing activity with third parties. The complaint stated
that Vizio provided no notice of this default setting to many of its consumers. 129 At a certain
point, it provided the below notice to some consumers, which timed out after one minute and
provided no direct link to the settings menu or privacy policy. 130 In any event, the FTC alleged
that by keeping the setting name vague, Vizio effectively removed consumers’ ability to make an
informed choice about their data sharing. 131 The alleged conduct was a clear example of a dark
pattern that subverted consumers’ privacy choices.
Figure 9: Vizio Privacy Notice

Businesses should, first and foremost, aspire to become good stewards of consumer
personal information. Data minimization measures should be inherent in any business plan—this
makes sense not only from a consumer privacy perspective, but also from a business perspective

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because it reduces the risk of liability due to potential data exposure. Businesses should collect
the data necessary to provide the service the consumer requested, and nothing more.

Businesses should, first and foremost, aspire to become good stewards of

consumer personal information.

In addition to generally minimizing data collection efforts, businesses should also avoid
subverting consumers’ privacy choices. First, companies should avoid default settings that lead
to the collection, use, or disclosure of consumers’ information in a way that they did not expect
(and collect information only when the business has a justified need for collecting the
data). Second, companies should make consumer choices easy to access and
understand. Consumers should not have to navigate through multiple screens to find privacy
settings or have to look for settings buried in a privacy policy or in a company’s terms of
service: they should be presented at a time and in a context in which the consumer is making a
decision about their data. Any toggle options presented to the consumer should not be
ambiguous or confusing, and one option should not be more prominent than another. Third,
choices about sensitive information, in particular, should be presented so that it is clear to the
consumer what they are consenting to – as opposed to a blanket consent – and should be
presented along with information that they need to make an informed decision (for example, that
if the consumer consents to the collection of their information, that information will be shared
with third parties). More generally, businesses should take a moment to assess their user
interfaces from a consumer’s perspective and consider whether another option might increase the
likelihood that a consumer’s choice will be respected and implemented.

Consumers should not…have to look for settings buried in a privacy policy or

in a company’s terms of service: they should be presented at a time and in a
context in which the consumer is making a decision about their data.

Another variation on the privacy-related dark pattern involves lead generators that
convey a false affiliation to manipulate consumers into sharing personal information. For
example, the FTC charged the lead generator Sunkey Publishing 132 with using websites such as
army.com and armyenlist.com, designed to appear as official recruiting websites affiliated with
the U.S. military, to target people seeking to join the armed forces and trick them into submitting
their information. According to the FTC complaint, Sunkey falsely promised to use the
information collected only for military recruitment purposes and not to share it with anyone
else. 133

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Figure 10: Sunkey Information Request Page

In reality, according to the complaint, Sunkey sold the information as marketing leads to
post-secondary schools for $15 to $40 per lead, and consumers received follow-up phone calls
from telemarketers giving consumers the false impression that the U.S. military actually
endorsed those schools. 134 Similar examples of deceptive lead generator dark patterns can be
found in the FTC’s cases against EduTrek, 135 Blue Global, 136 and ITMedia. 137

Lead generators must be honest about who they are and why they are
collecting consumer information.

Lead generators must be honest about who they are and why they are collecting consumer
information. If a company represents that they are collecting consumer information for one
audience or one purpose, they cannot then share it with a different buyer or for a different
purpose without consumer consent. Deceptive lead generators that manipulate consumers into
sharing personal information under false pretenses violate the FTC Act. When the “product” a
business sells includes sensitive data, they must take steps to vet prospective buyers and
understand how that information is being used. Further, companies who use others to generate
leads should monitor what those third parties are doing on their behalf and ensure the leads they
use weren’t the product of deception.

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Conclusion
While dark patterns may manipulate consumers in stealth, these practices are squarely
on the FTC’s radar.

The FTC’s “Bringing Dark Patterns to Light” workshop and cases involving dark patterns
represent the agency’s longstanding efforts to study and combat dark patterns and to raise
awareness about the dangers they pose to consumers. This Staff Report serves as an additional
resource for the public and a guide for businesses as they develop, design, and improve their
online interfaces.

Firms that nonetheless employ dark patterns, take notice: where these practices violate
the FTC Act, ROSCA, the TSR, TILA, CAN-SPAM, COPPA, ECOA, or other statutes and
regulations enforced by the FTC, we will continue to take action.

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Appendix A

Compilation of Digital Dark Patterns

Digital Dark Patterns are design practices that trick or manipulate users into making choices
that they might not otherwise have made. Below are some common dark patterns identified by
FTC workshop panelists and found in the academic literature.

Dark Pattern Dark Pattern

Description
Type Variant

ENDORSEMENTS False Activity Making false claims about others’ activity on a site or
(aka “SOCIAL Messages interest in a product
PROOF”) Example: “24 other people are viewing this
listing”

Deceptive Consumer Using phony customer endorsements or presenting

Testimonials other people’s experience without revealing material
information, such as:
(1) the endorsers were compensated;
(2) the endorsers have a connection to the company, like
being an employee or a family member; or
(3) the endorsers’ experiences aren’t typical of what
others will experience in similar circumstances

Deceptive Celebrity Featuring testimonials that falsely appear to come from

Endorsements celebrities
OR
Using celebrities or prominent influencers to endorse a
product without disclosing that the celebrity was paid
for the endorsement or was given the product for free

Parasocial Using characters that children know and trust to

Relationship Pressure pressure them into making a certain choice
Example: Using a well-known cartoon character
to encourage children to make in-app purchases

SCARCITY False Low Stock Creating pressure to buy immediately by saying

Message inventory is low when it isn’t
Example: “Only 1 left in stock – order soon”

False High Demand Creating pressure to buy immediately by saying demand

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Message is high when it isn’t

Example: “20 other shoppers have this item in
their cart”

URGENCY Baseless Countdown Creating pressure to buy immediately by showing a fake

Timer countdown clock that just goes away or resets when it
times out
Example: “Offer ends in 00:59:48”

False Limited Time Creating pressure to buy immediately by saying the offer
Message is good only for a limited time or that the deal ends soon
– but without a deadline or with a meaningless deadline
that just resets when reached

False Discount Claims Creating pressure to buy immediately by offering a fake

“discounted” or “sale” price

OBSTRUCTION Price Comparison Keeping shoppers from easily comparing prices by

Prevention bundling things, using different measures (price per unit
v. price per ounce), or listing the price per payment
(such as $10 per week) without disclosing the total
number of payments or overall cost

Roadblocks to Making it easy to sign up but hard to cancel, by requiring

Cancellation people to go through tedious, time-consuming
cancellation procedures
Example: letting people sign up online, but
making them use another means to cancel
Example: requiring that people cancel by phone
but then concealing the phone number, short-
staffing the cancellation line, opening the line
during limited hours, or requiring people to listen
to a sales pitch or upsell while trying to cancel

Immortal Accounts Making it hard or impossible to delete an account

SNEAKING OR Sneak-into-Basket Automatically adding items to the shopping cart without

INFORMATION a shopper’s permission
HIDING OR
Tricking a shopper into buying unwanted items by using
a pre-checked box

Hidden Information Hiding material information or significant product

limitations from people
Example: hiding info in fine print, in lengthy
terms of service documents, behind nondescript

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hyperlinks, or in pop-up boxes that only appear if

someone hovers over the right thing

Hidden Costs Adding hidden fees or other charges that people don’t
know about
Example: an undisclosed origination fee
deducted from loan proceeds

Drip Pricing Advertising only part of a product’s total price initially

and then imposing other mandatory charges late in the
buying process
Example: a “convenience fee” that appears only
when a shopper reaches the check-out screen

Hidden Subscription Offering a free trial and, at the end of the trial,
or Forced Continuity automatically and unexpectedly charging a recurring fee
if consumers don’t affirmatively cancel
OR
Offering a product for a small one-time fee, then
automatically enrolling people into a subscription or
continuity plan without their consent

Intermediate Hiding the real cost by requiring consumers to buy things

Currency with virtual currency
Example: “coins” or “acorns” in kids’ apps

INTERFACE Misdirection Using style and design to focus users’ attention on one
INTERFERENCE thing in order to distract their attention from another
Example: presenting the subtotal price in a
bright green highlighted box, then listing
additional mandatory taxes and fees below in a
non-highlighted section so users don’t notice
their final total will be higher

False Hierarchy or In giving options, using contrasting visual prominence to

Pressured Upselling steer users into making a certain selection
Example: during cancellation, presenting the
“Keep My Subscription” option as a bright
orange button, while presenting the “Cancel My
Subscription” option as a smaller font, pale gray
hyperlink hidden below the orange button

Disguised Ads Formatting advertisements to falsely appear to be

unbiased product reviews or independent journalism
OR
Presenting a ranking list, search engine, or comparison-
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shopping site as neutral and unbiased when it is actually

based on advertising dollars

Bait and Switch A choice or interaction leads to an unexpected,

undesirable outcome
Example: a user clicks the X in the top right
corner of a pop-up but, instead of closing the
box, it downloads software
Example: selling a consumer something that
turns out to be materially different than what
was originally advertised

COERCED ACTION Unauthorized Tricking people into paying for goods or services that
Transactions they did not want or intend to buy, such as mislabeling
the steps in a transaction or failing to obtain the express
informed consent of the accountholder
Example: a shopping website button labeled
“Next” that people think will lead to the next
screen but, instead, processes the transaction
immediately
Example: a one-click button in children’s gaming
apps that charges parents real money

Auto-Play Automatically playing another video once one video

ends in a manner that is unexpected or harmful
Example: after the first video, a less kid-friendly
video – or a sponsored ad camouflaged to look
like a recommended video – automatically plays

Nagging Asking repeatedly and disruptively if a user wants to

take an action
OR
Making a request that doesn’t let the user permanently
decline – and then repeatedly prompting them with the
request
Example: asking users to provide their data or
turn on cookies then repeatedly presenting the
choices as “Yes” or “Not Now” instead of “Yes”
or “No”

Forced Registration Making users create an account or share their

or Enrollment information to complete a task
Example: “Create an account to continue with
your purchase”

Pay-to-Play or Saying that things are available with a purchase or

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Grinding download, but then charging users to actually obtain

those things
OR
Making the free version of a game so cumbersome and
labor-intensive that the player is induced to unlock new
features with in-app purchases

Friend Spam, Social Asking for an email address or social media permissions
Pyramid Schemes, for one purpose but then using it for another
and Address Book OR
Leeching Making users share information about people in their
social network

ASYMMETRIC Trick Questions Using ambiguity or confusing language – often double

CHOICE negatives – to steer a user to things they don’t want
Example: “Uncheck the box if you prefer not to
receive email updates”
Example: A checkbox next to the phrase
“Decline the option of renewing your loan,”
which if left un-checked is interpreted as
acceptance of auto-renewal terms
Example: when trying to cancel a subscription
service, a button labeled “No, cancel” that
doesn’t cancel your subscription but instead
takes you out of the cancellation path

Confirm Shaming Using shame to steer users away from certain choices
by framing the alternatives as a bad decision
Example: “No, I don’t want to save money”
appears when a shopper selects a one-time
purchase over a recurring one

Preselection Preselecting a default that’s good for the company, but

not the user
Example: add-on products such as trip insurance
or an extended warranty are automatically
tacked on to a purchase unless the customer
notices and opts out
Example: the accept tracking cookies box is pre-
checked
Example: the site automatically shows shoppers
the most expensive option, not the cheaper or
free option

Subverting Privacy Tricking users into sharing more information than they

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Preferences really intended to

Example: asking users to give consent but not
informing them in a clear, understandable way
what they are agreeing to share
Example: telling users the site is collecting their
information for one purpose but then sharing it
with others or using it for other purposes
Example: including default settings that
maximize data collection and making it difficult
for users to find and change them
Example: giving users a choice, but one where
the “Accept” choice is in a bold, blue
background, while “Reject” is greyed out and in
small print

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Appendix B
Even a single purchase can bring you into contact with many dark patterns. Here are some
common ways that you can be tricked or manipulated during online transactions.

Sites can use design, style, and

confusing language to steer you
to a certain choice. This one
wants you to share information
– maybe more than you
wanted.

Trick Question,
Subverting Privacy Preferences

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This page lies about what

others on the site are doing
(“20 other people viewed this
item”) in an effort to boost
sales.

False Activity Messages

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The fake countdown clock on

this page pressures you to buy
immediately, but the clock just
goes away or resets when it
times out.

Baseless Countdown Timer

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Here, an unexpected
convenience fee of $4.99
appears only right before you
check out.

Drip Pricing

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This promotion steers you to

an unexpected subscription,
charges a recurring fee even
though the offer is advertised
as a free trial, and only lets you
cancel by phone.

Pressured Upselling,
Hidden Information,
Hidden Subscription,
Roadblocks to Cancellation

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This order confirmation page

shows a recurring subscription
fee in fine print at the bottom
of the page that was snuck into
your order on the prior page.

Unauthorized Transaction,
Hidden Information

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Contributors

Division of Financial Practices

Stephanie Liebner
Brittany Frassetto
Eleni Broadwell
Samuel Jacobson
Sandhya Brown
Malini Mithal

Division of Privacy and Identity Protection

Gorana Neskovic
Mark Eichorn

Division of Consumer and Business Education

Marlena Patterson
Lesley Fair
Alvaro Puig

Division of Enforcement
Brad Winter

Division of Advertising Practices

Laura Sullivan
Annette Soberats

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Endnotes

1
See, e.g., European Commission, Directorate-General for Justice and Consumers, Lupiáñez-Villanueva, F., Boluda,
A., Bogliacino, F., et al., Behavioural study on unfair commercial practices in the digital environment: dark patterns
and manipulative personalisation: final report (May 2022), at 19, available at https://data.europa.eu/doi/10.2838/
859030 [hereinafter EU Dark Patterns Report] (“Persuasive practices and personalisation predate the online world
and are also applied in the brick-and-mortar world. The digital transformation and the data economy, however, have
made possible the adoption of these practices to an unprecedented level.”).
2
In pursuance of this mission, the FTC administers a wide variety of laws and regulations, including the Federal
Trade Commission Act. Section 5(a) of the FTC Act provides that “unfair or deceptive acts or practices in or
affecting commerce . . . are . . . declared unlawful.” 15 U.S.C. Sec. 45(a)(1). “Deceptive” practices are defined in
the FTC’s Deception Policy Statement as involving a material representation, omission, or practice that is likely to
mislead a consumer acting reasonably under the circumstances. An act or practice is “unfair” if it “causes or is likely
to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not
outweighed by countervailing benefits to consumers or to competition.” 15 U.S.C. Sec. 45(n).
3
See, e.g., FTC v. Age of Learning, Inc., also d/b/a ABCmouse and ABCmouse.com, Case No. 2:20-cv-07996 (C.D.
Cal.); FTC Press Release, Children’s Online Learning Program ABCMouse to Pay $10 Million to Settle FTC
Charges of Illegal Marketing and Billing Practices (Sept. 2, 2020), at https://www.ftc.gov/news-events/press-
releases/2020/09/childrens-online-learning-program-abcmouse-pay-10-million-settle; FTC v. Prog Leasing, LLC,
also d/b/a Progressive Leasing, Case No. 1:20-cv-01668 (N.D. Ga.); FTC Press Release, Rent-to-Own Payment
Plan Company Progressive Leasing Will Pay $175 Million to Settle FTC Charges It Deceived Consumers About
Pricing (April 20, 2020), at https://www.ftc.gov/news-events/press-releases/2020/04/rent-own-payment-plan-
company-progressive-leasing-will-pay-175; FTC v. LendingClub Corporation, Case No. 3:18-cv-02454 (N.D. Cal.);
FTC Press Release, LendingClub Agrees to Pay $18 Million to Settle FTC Charges (July 14, 2021), at
https://www.ftc.gov/news-events/press-releases/2021/07/lendingclub-agrees-pay-18-million-settle-ftc-charges; FTC
v. AH Media Grp., Case No. 3:19-cv-04022-JD (N.D. Cal.); FTC Press Release, FTC Halts Online Subscription
Scheme that Deceived People with “Free Trial” Offers (May 8, 2020), at https://www.ftc.gov/news-events/press-
releases/2020/05/ftc-halts-online-subscription-scheme-deceived-people-free-trial.
4
FTC, Enforcement Policy Statement Regarding Negative Option Marketing, 86 Fed. Reg 60822 (Oct. 28, 2021),
available at
https://www.ftc.gov/system/files/documents/public_statements/1598063/negative_option_policy_statement-10-22-
2021-tobureau.pdf; FTC Press Release, FTC to Ramp up Enforcement against Illegal Dark Patterns that Trick or
Trap Consumers into Subscriptions (Oct. 28, 2021), at https://www.ftc.gov/news-events/press-releases/2021/10/ftc-
ramp-enforcement-against-illegal-dark-patterns-trick-or-trap;.
5
FTC, “Bringing Dark Patterns to Light: An FTC Workshop,” https://www.ftc.gov/news-events/events-
calendar/bringing-dark-patterns-light-ftc-workshop.
6
There are certain dark patterns that the FTC has consistently found to be unlawful, while others would depend on a
case-by-case evaluation of all the attendant facts.

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7
FTC, “Bringing Dark Patterns to Light: An FTC Workshop” Transcript, at 6, 8, https://www.ftc.gov/system/files
/documents/public_events/1586943/ftc_darkpatterns_workshop_transcript.pdf [hereinafter “Dark Patterns Workshop
Transcript”].
8
Id. at 28; Jamie Luguri, Lior Jacob Strahilevitz, Shining a Light on Dark Patterns (March 23, 2021), Journal of
Legal Analysis, Volume 13, Issue 1.
9
See, e.g., EU Dark Patterns Report, at 39-40 (“A key issue that emerged from the research is that unfair
commercial practices are rarely presented in isolation…The combination of several dark patterns is even more
effective at influencing consumers’ choices, and complicates enforcement, which is often based on a practice-by-
practice investigation.”); United Kingdom Competition & Markets Authority Discussion Paper, Online Choice
Architecture: How digital design can harm competition and consumers (April 2022), at vi, available at
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1066524/Online_c
hoice_architecture_discussion_paper.pdf [hereinafter “CMA Online Choice Architecture Paper”] (“OCA practices
are often not used in isolation, and tend to have stronger effects when they are combined.”).
10
FTC Complaint, FTC v. RagingBull.com, LLC, Case No 1:20-cv-3538 (D. Md.), available at
https://www.ftc.gov/system/files/documents/cases/ragingbull.com_-
_amended_complaint_for_permanent_injunction_and_other_equitable_relief.pdf.
11
See Dark Patterns Workshop Transcript, at 34 (“When you move from a brick-and-mortar environment to a digital
environment, there’s more aspects of the environment you can manipulate…you can also collect and leverage
information about consumers.”). See also EU Dark Patterns Report, at 120 (“Dark patterns and manipulative
personalisation practices can lead to financial harm, loss of autonomy and privacy, cognitive burdens, mental harm,
as well as pose concerns for collective welfare due to detrimental effects on competition, price transparency and
trust in the market.”).
12
See, e.g., Dark Patterns Workshop Transcript, at 33-37; EU Dark Patterns Report, at 20 (“The large-scale
collection and analysis of personal data may be a threat not only for privacy but also due to the manner in which it is
used to shape individual decision-making.”); CMA Online Choice Architecture Paper, at iii (“The speed and scale of
data collection, experimentation, and targeted personalisation available to businesses online also facilitates the
development and optimisation of choice architecture in real time.”); International Digital Accountability Council
(“IDAC”), Public Comment Submitted to FTC on Dark Patterns Issues, FTC-2021-0019-0109, at 2, available at
https://www.regulations.gov/comment/FTC-2021-0019-0109.
13
See Dark Patterns Workshop Transcript, at 37; Willis, L. E., Deception by Design (2020), Harvard Journal of Law
& Technology, 34(1), 115-190 (“Although marketers have long used testing to predict which advertisements will be
most effective, the difference between offline human-directed and online real-time machine-controlled
experimentation is profound. The speed, scale, and thoroughness of machine experimentation ‘make[s] accessible a
vast design space that ordinary human iteration wouldn’t be able to explore.’”); EU Dark Patterns Report, at 20
(“Online platforms and traders gather data and then test different nudges. They see the reaction and steadily feed the
information into machine learning algorithms that produce improved and refined nudges in a self-propelling cycle
that is beneficial to them but may be detrimental for consumers.”).
14
See Dark Patterns Report Transcript, at 31, 34, 37.

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15
Campaign for a Commercial-Free Childhood and The Center for Digital Democracy, Public Comment Submitted
to FTC on Dark Patterns Issues, FTC-2021-0019-0108, at 1, 18-19, 30, available at
https://www.regulations.gov/comment/FTC-2021-0019-0108 [hereinafter Digital Democracy Public Comment].
16
In the Matter of Credit Karma, FTC Matter No. 2023138; FTC Press Release, FTC Takes Action to Stop Credit
Karma From Tricking Consumers With Allegedly False “Pre-Approved” Credit Offers (Sept. 1, 2022), at
https://www.ftc.gov/news-events/news/press-releases/2022/09/ftc-takes-action-stop-credit-karma-tricking-
consumers-allegedly-false-pre-approved-credit-offers.
17
FTC Complaint, In the Matter of Credit Karma, FTC Matter No. 2023138, available at
https://www.ftc.gov/system/files/ftc_gov/pdf/CK%20Complaint%209-1-22%20%28Redacted%29.pdf.
18
See Dark Patterns Workshop Transcript, at 2, 4, 6, 8, 18, 21, 57-59. See also EU Dark Patterns Report, at 45
(“Overall, mystery shoppers detected practices that they perceive as dark patterns in 73 out of the 75 websites and
apps explored. Given that 97% of the websites/apps covered presented these practices, it is evident that the use of
dark patterns is common across the board.”).
19
EU Dark Patterns Report, at 46-57.
20
See Dark Patterns Workshop Transcript, at 10 (“We ultimately found the dark pattern count is frequently higher in
apps than in websites, both when you look within a service or across types of the dark pattern.”); Gunawan, J.,
Pradeep, A., Choffnes, D., Hartzog, W., & Wilson, C., A Comparative Study of Dark Patterns Across Mobile and
Web Modalities (2021). But see EU Dark Patterns Report, at 46 (“The prevalence of some dark patterns may thus
differ depending on the modality…However, the mystery shopping exercise across 75 websites/apps found that the
prevalence of dark patterns was generally similar in mobile apps and websites.”).
21
See Dark Patterns Workshop Transcript, at 75.
22
See generally Sara Atske & Andrew Perrin, Home broadband adoption, computer ownership vary by race,
ethnicity in the U.S., Pew Research Center (July 16, 2021), available at https://www.pewresearch.org/fact-
tank/2021/07/16/home-broadband-adoption-computer-ownership-vary-by-race-ethnicity-in-the-u-s/ (“A quarter of
Hispanics are ‘smartphone-only’ internet users – meaning they own a smartphone but lack traditional home
broadband services. By comparison, 12% of White adults fall into this category. Among Black adults, 17% are
smartphone dependent, but this share is not statistically different from their White or Hispanic counterparts.”). See
also Dark Patterns Workshop Transcript, at 9-11; Gunawan, J., Pradeep, A., Choffnes, D., Hartzog, W., & Wilson,
C., A Comparative Study of Dark Patterns Across Mobile and Web Modalities (2021), at 23 (“Additionally, we are
concerned that dark pattern variability across modalities may exacerbate existing social inequalities and exploit
vulnerable populations, especially for people whose primary (or only) internet-capable device is mobile.”); IDAC
Public Comment, supra note 12, at 1.
23
See, e.g., Dark Patterns Workshop Transcript, at 19; EU Dark Patterns Report, at 60 (“Moreover, developments in
the area of virtual or blended/augmented reality environments, such as the metaverse, generate additional potential
for more immersive dark patterns and manipulative personalisation, which may differ significantly from the classic
dark patterns or personalisation techniques used to date, and may have profound implications for consumer decision-
making in the digital environment.”).

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24
See, e.g., Dark Patterns Workshop Transcript, at 73; EU Dark Patterns Report, at 85 (“Dark patterns are hidden,
subtle and manipulative in nature, so it is difficult to spot and report them.”); CMA Online Choice Architecture
Paper, at 42 (“When encountering a harmful OCA practice, such as a dark pattern, most individuals are unlikely to
realise they were under the influence of a bias or heuristic that drove their decision making.”); Consumer Reports,
Public Comment Submitted to FTC on Dark Patterns Issues, FTC-2021-0019-0119, at 3, available at
https://www.regulations.gov/comment/FTC-2021-0019-0119 (“By their very nature, dark patterns are difficult for
consumers to identify.”).
25
See, e.g., Dark Patterns Workshop Transcript, at 36; EU Dark Patterns Report, at 85 (“Another possibility is that a
consumer who has been manipulated is embarrassed about being tricked and does not want to draw more attention to
the problem.”).
26
See Dark Patterns Workshop Transcript, at 8.
27
See id. at 67-68, 75; See also FTC Enforcement Policy Statement on Deceptively Formatted Advertisements (Dec.
22, 2015), available at https://www.ftc.gov/system/files/documents/public_statements /896923/151222
deceptiveenforcement.pdf; In the Matter of Lord & Taylor, LLC, Docket No. C-4576; FTC Press Release, Lord &
Taylor Settles FTC Charges It Deceived Consumers Through Paid Article in an Online Fashion Magazine and Paid
Instagram Posts by 50 “Fashion Influencers” (March 15, 2016), at https://www.ftc.gov/news-events/news/press-
releases/2016/03/lord-taylor-settles-ftc-charges-it-deceived-consumers-through-paid-article-online-fashion-
magazine.
28
See, e.g., In the Matter of LendEDU, et al., Docket No. C-4719; FTC Press Release, Operators of Comparison
Shopping Website Agree to Settle FTC Charges Alleging Deceptive Rankings of Financial Products and Fake
Reviews (Feb. 3, 2020), at https://www.ftc.gov/news-events/press-releases/2020/02/operators-comparison-shopping-
website-agree-settle-ftc-charges; FTC v. Victory Media, Inc., Docket No. C-4640; FTC Press Release, Victory Media
Settles FTC Charges Concerning Its Promotion of Post-Secondary Schools to Military Consumers (Oct. 19, 2017),
at https://www.ftc.gov/news-events/press-releases/2017/10/victory-media-settles-ftc-charges-concerning-its-
promotion-post. See also FTC Press Release, FTC Puts Hundreds of Businesses on Notice about Fake Reviews and
Other Misleading Endorsements (Oct. 13, 2021), at https://www.ftc.gov/news-events/news/press-
releases/2021/10/ftc-puts-hundreds-businesses-notice-about-fake-reviews-other-misleading-endorsements;
29
Dark Patterns Workshop Transcript, at 8, 27. See also CMA Online Choice Architecture Paper, at 26 (“There is
considerable evidence that consumers react to scarcity and divert their attention to information where they might
miss opportunities… false or misleading scarcity claims, such as countdown clocks that reset or stock claims that are
exaggerated or unsubstantiated, can put undue pressure on consumers to act.”)
30
Dark Patterns Workshop Transcript, at 6, 72. See also CMA Online Choice Architecture Paper, at 26 (“Numerous
experiments and studies find an effect of scarcity claims on click-through rates, purchase, perceived value, and
favourability towards businesses who offer them.”) (citing to several academic research studies).
31
Dark Patterns Workshop Transcript, at 6, 27.

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32
See e.g., FTC v. Victory Media, Inc., Docket No. C-4640, supra note 28; FTC v. Effen Ads, LLC, Case No. 2:19-
cv-00945 (D. Utah); FTC Press Release, Operators of Multi-Million Dollar Work-from-Home Scheme Settle FTC
Allegations (Dec. 30, 2019), at https://www.ftc.gov/news-events/press-releases/2019/12/operators-multi-million-
dollar-work-home-scheme-settle-ftc; LeanSpa, LLC, et al., Case No 3:11-cv-1715 (D. Conn.); FTC Press Release,
U.S. Circuit Court Finds Operator of Affiliate Marketing Network Responsible for Deceptive Third-Party Claims
Made for LeanSpa Weight-loss Supplement (Oct. 4, 2016), at https://www.ftc.gov/news-events/press-
releases/2016/10/us-circuit-court-finds-operator-affiliate-marketing-network.
33
FTC Enforcement Policy Statement on Deceptively Formatted Advertisements (Dec. 22, 2015),
https://www.ftc.gov/system/files/documents/public_statements /896923/151222 deceptiveenforcement.pdf.
34
FTC v. Effen Ads, LLC, Case No. 2:19-cv-00945 (D. Utah); FTC Press Release, Operators of Multi-Million Dollar
Work-from-Home Scheme Settle FTC Allegations (Dec. 30, 2019), at https://www.ftc.gov/news-events/press-
releases/2019/12/operators-multi-million-dollar-work-home-scheme-settle-ftc.
35
FTC Complaint, FTC v. Effen Ads, LLC, Case No. 2:19-cv-00945 (D. Utah), available at
https://www.ftc.gov/system/files/documents/cases/1723202catalystcomplaint.pdf.
36
Id.
37
Id.
38
The advertisement or website must be viewed as a whole, including visual and aural elements. The net impression
of the advertisement is controlling. FTC Policy Statement on Deception (Oct. 14, 1983), available at
https://www.ftc.gov/system/files/documents/public_ statements/410531/831014deceptionstmt.pdf [hereinafter “FTC
Deception Policy Statement”]; Pfizer Inc., 81 F.T.C. 23, 58 (1972); Beneficial Corp. v. FTC, 542 F.2d 611, 617 (3d
Cir. 1976).
39
For example, a Pew Research Center survey conducted in 2005 reported that 45% of search engine users said they
would stop using a search engine if it did not make it clear that some results were paid or sponsored. Pew Internet &
Am. Life Project, Search Engine Users: Internet searchers are confident, satisfied and trusting – but they are also
unaware and naïve, at 20 (Jan. 23, 2005), http://www.pewinternet.org/Reports/2005/Search-Engine-Users/1-
Summary-of-Findings.aspx. See also FTC, Soliciting and Paying for Online Reviews: A Guide for Marketers
(January 2022), at https://www.ftc.gov/business-guidance/resources/soliciting-paying-online-reviews-guide-
marketers.
40
See CMA Online Choice Architecture Paper, at 37 (“[A]cademic research shows that across several contexts (and
particularly online), items appearing (ranked) at the top of the list are more likely to be clicked and chosen. The
effectiveness of ranking shares many psychological mechanisms with defaults…including reduced effort, salience,
and beliefs about quality or relevance, such that items appearing higher perform better.”)
41
FTC Enforcement Policy Statement on Deceptively Formatted Advertisements (Dec. 22, 2015), available at
https://www.ftc.gov/system/files/documents/public_statements /896923/151222 deceptiveenforcement.pdf.

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42
See CMA Online Choice Architecture Paper, at 38 (“Third-party businesses may therefore be unable to improve
their search ranking or may find it difficult to draw customers away from the incumbent.”).
43
In the Matter of LendEDU, et al., Docket No. C-4719; FTC Press Release, Operators of Comparison Shopping
Website Agree to Settle FTC Charges Alleging Deceptive Rankings of Financial Products and Fake Reviews (Feb. 3,
2020), at https://www.ftc.gov/news-events/press-releases/2020/02/operators-comparison-shopping-website-agree-
settle-ftc-charges.
44
FTC Complaint, In the Matter of LendEDU, et al., Docket No. C-4719, available at
https://www.ftc.gov/system/files/documents/cases/c-4719_182_3180_lendedu_complaint.pdf.
45
Id.
46
Id.
47
Id.
48
See FTC Policy Statement on Deception, supra note 38; FTC Enforcement Policy Statement on Deceptively
Formatted Advertisements, supra note 33.
49
See FTC Deception Policy Statement, at 4 (“Depending on the circumstances, accurate information in the text
may not remedy a false headline because reasonable consumers may glance only at the headline. Written disclosures
or fine print may be insufficient to correct a misleading representation.”); FTC, Featuring Online Customer
Reviews: A Guide for Platforms (January 2022), at https://www.ftc.gov/business-guidance/resources/featuring-
online-customer-reviews-guide-platforms.
50
See Statement in Regard to Advertisements That Appear in Feature Article Format, FTC Release, (Nov. 28, 1967)
(In some instances, “the format of [an] advertisement may so exactly duplicate a news or feature article as to render
the caption ‘ADVERTISEMENT’ meaningless and incapable of curing the deception.”). See also FTC, Blurred
Lines: An Exploration of Consumers’ Advertising Recognition in the Contexts of Search Engines and Native
Advertising: A Federal Trade Commission Staff Report (Dec. 2017), at 22, available at
https://www.ftc.gov/system/files/documents/ reports/blurred-lines-exploration-consumers-advertising-recognition-
contexts-search-engines-native/p164504_ftc _staff _report_re_digital_advertising_and_appendices.pdf [hereinafter
“Blurred Lines FTC Staff Report”] (“The Gear Patrol and Chicago Tribune conditions appeared to have fewer
indicia separate and apart from the disclosure that they were advertisements. For both these native ads, assessed ad
recognition was low to begin with, and seemed to improve very little with the improved disclosures.”).
51
See Blurred Lines FTC Staff Report, at 1 (“In other words, consumers should be able to recognize an ad as an ad.
If a separate disclosure is necessary to make that happen, the disclosure should be made in a way that ensures
consumers can read, process, and understand it.”). See also FTC Deception Policy Statement, at 4 (design practices
that operate to direct consumers' attention away from qualifying disclosures or other material information are
deceptive); CMA Online Choice Architecture Paper, at 38 (“[T]here is some evidence from research that
these types of disclosures are not always well understood or used by consumers and it may be necessary to construct
them carefully.”).

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52
Dark Patterns Workshop Transcript, at 8 (“Some dark patterns are information-hiding, meaning they delay or hide
important information from users.”). See, e.g., In the Matter of Nat’l Payment Network, Inc., Docket No. 132 3285
(charging NPN with deceptively pitching consumers an auto payment program it claimed would save consumers
money but failing to disclose that the significant fees it charged for the service often cancelled out any actual
savings); FTC Press Release, FTC, Multiple Law Enforcement Partners Announce Crackdown on Deception, Fraud
in Auto Sales, Financing and Leasing (March 26, 2015), at https://www.ftc.gov/news-events/news/press-
releases/2015/03/ftc-multiple-law-enforcement-partners-announce-crackdown-deception-fraud-auto-sales-financing;
FTC v. Match Group, Inc., Case No. 3:19-02281 (N.D. Texas) (charging the operators of Match.com with
deceptively inducing consumers to subscribe to the dating service by promising them a free six-month subscription
without adequately disclosing that consumers would need to comply with additional terms before the company
would honor the guarantee); FTC Press Release, FTC Sues Owner of Online Dating Service Match.com for Using
Fake Love Interest Ads To Trick Consumers into Paying for a Match.com Subscription (Sept. 25, 2019), at
https://www.ftc.gov/news-events/news/press-releases/2019/09/ftc-sues-owner-online-dating-service-matchcom-
using-fake-love-interest-ads-trick-consumers-paying#:~:text=The%20%20FTC%20alleges%20consumers%%2020
often%20were%20unaware%20they,the%20free%20six%20months%20%20of%20service%20they%20expected.
53
FTC v. LendingClub Corp., Case No. 3:18-cv-02454 (N.D. Cal.); FTC Press Release, LendingClub Agrees to Pay
$18 Million to Settle FTC Charges (July 14, 2021), at https://www.ftc.gov/news-events/press-
releases/2021/07/lendingclub-agrees-pay-18-million-settle-ftc-charges.
54
FTC Complaint, FTC v. LendingClub Corp., Case No. 3:18-cv-02454 (N.D. Cal.), available at
https://www.ftc.gov/system/files/documents/cases/lendingclub_corporation_first_amended_complaint.pdf.
55
A tooltip button is an icon, image, or other graphical element that, when a user interacts with it or their cursor is
positioned over it, prompts a textbox displaying relevant information to appear. In other words, such a mouse-over
or hover-over causes a pop-up.
56
FTC Complaint against LendingClub Corp., supra note 54.
57
Id.
58
Id.
59
Dark Patterns Workshop Transcript, at 7, 8, 68. See also Mary W. Sullivan, Federal Trade Commission, Bureau
of Economics, Economic Analysis of Hotel Resort Fees (January 2017), at 36, available at
https://www.ftc.gov/system/files/documents/reports/economic-analysis-hotel-resort-
fees/p115503_hotel_resort_fees_economic_issues_paper.pdf (“This analysis finds that separating mandatory resort
fees from posted room rates without first disclosing the total price is likely to harm consumers by increasing the
search costs and cognitive costs of finding and choosing hotel accommodations.”); CMA Online Choice
Architecture Paper, at 29 (“Since consumers often focus on headline prices, showing the total price in increments –
‘dripped’ through the purchase process – can affect consumer behaviour. Additional fees, compulsory or optional,
may be obfuscated and therefore not noticed.”).
60
Dark Patterns Workshop Transcript, at 80. See also CMA Online Choice Architecture Paper, at 30 (“Once a

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consumer is psychologically committed to a purchase or course of action, abandoning it may cause feelings of
uncertainty, dissatisfaction and cognitive dissonance. Businesses may also use drip pricing to draw consumers in on
a low headline rate, then rely on the extra effort that would be required for them to go back and find an alternative,
such that consumers accept the price increasing later in the purchase process. These mechanisms draw on several
behavioural biases, including anchoring (people tend to anchor on initial price information and fail to fully adjust
their view of the price as additional fees are revealed), sunk cost fallacy (people tend to continue with a process if
they have invested time or effort, such as exploring a product or providing their personal details), and the
endowment effect (people tend to place a higher value on objects they own, or have imagined owning).”).
61
Dark Patterns Workshop Transcript, at 7; Blake et al., Price Salience and Consumer Choice (2020).
62
See, e.g., CMA Online Choice Architecture Paper, at 30.
63
Dark Patterns Workshop Transcript, at 80. See also FTC Press Release, FTC Warns Hotel Operators that Price
Quotes that Exclude 'Resort Fees' and Other Mandatory Surcharges May Be Deceptive, (Nov. 28, 2012), at
https://www.ftc.gov/news-events/news/press-releases/2012/11/ftc-warns-hotel-operators-price-quotes-exclude-
resort-fees-other-mandatory-surcharges-may-be; Economic Analysis of Hotel Resort Fees, supra note 59 (“Hotels
could eliminate these costs to consumers by including the resort fee in the advertised price. They could still bundle
the same resort services with the room and charge the same total price. They could also list the components of the
total price separately, as long as the total price is the most prominently disclosed price.”).
64
See FTC v. Universal City Nissan, Inc., et al., (C.D. Cal.); FTC Press Release, Los Angeles-Based Sage Auto
Group Will Pay $3.6 Million to Settle FTC Charges (March 14, 2017), at https://www.ftc.gov/news-
events/news/press-releases/2017/03/los-angeles-based-sage-auto-group-will-pay-36-million-settle-ftc-charges.
65
The Equal Credit Opportunity Act, or ECOA, prohibits credit discrimination on the basis of race, color, religion,
national origin, sex, marital status, age, or because you get public assistance. 15 U.S.C. §§ 1691-1691f.
66
See, e.g., FTC v. Liberty Chevrolet, Inc. d/b/a Bronx Honda, Case No. 1:20-cv-03945-PAE (S.D.N.Y.)
(According to the FTC complaint, defendants charged higher financing markups and fees to African-American and
Hispanic customers than to similarly situated non-Hispanic white consumers. In addition, the FTC charged
defendants caused consumers to pay substantially more than they expected, failing to honor the advertised sales
price and inflating the cost through a variety of methods.); FTC Press Release, Auto Dealership Bronx Honda,
General Manager to Pay $1.5 Million to Settle FTC Charges They Discriminated Against African-American,
Hispanic Car Buyers (May 27, 2020), at https://www.ftc.gov/news-events/press-releases/2020/05/bronx-honda-to-
pay-over-1-million-to-settle-charges; FTC and The State of Illinois v. North American Automotive Services, Inc., et
al., Case No. 1:22-cv-01690 (N.D. Ill.); FTC Press Release, FTC Takes Action Against Multistate Auto Dealer
Napleton for Sneaking Illegal Junk Fees onto Bills and Discriminating Against Black Consumers (Apr. 1, 2022), at
https://www.ftc.gov/news-events/news/press-releases/2022/04/ftc-takes-action-against-multistate-auto-dealer-
napleton-sneaking-illegal-junk-fees-bills.
67
When a representation or sales practice targets a specific audience, such as children, older adults, or the terminally
ill, “ordinary consumers” for purposes of Section 5 of the FTC Act includes reasonable members of the targeted
group. FTC Deception Policy Statement.

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68
See Dark Patterns Workshop Transcript, at 50, 74.
69
See Blurred Lines FTC Staff Report at 4, 20.
70
The Children’s Online Privacy Protection Act, or COPPA, requires companies to protect children’s privacy and
safety online, including by getting parental consent before collecting some types of information from kids under 13.
15 U.S.C. §§ 6501–6505.
71
Enforcement Policy Statement Regarding Negative Option Marketing, 86 Fed. Reg 60822, supra note 4.
72
See EU Dark Patterns Report, at 91.
73
Dark Patterns Workshop Transcript, at 36.
74
Specifically, while Apple and Google included prompts for parents to enter their password and authorize an initial
purchase, the FTC alleged they did not disclose that authorizing a single purchase also authorized unlimited
purchases for a limited time thereafter (15 minutes for Apple and 30 minutes for Google). In the Matter of Apple
Inc., Docket No. C-4444; FTC Press Release, Apple Inc. Will Provide Full Consumer Refunds of At Least $32.5
Million to Settle FTC Complaint It Charged for Kids’ In-App Purchases Without Parental Consent (Jan. 15, 2014),
at https://www.ftc.gov/news-events/press-releases/2014/01/apple-inc-will-provide-full-consumer-refunds-least-325-
million; In the Matter of Google Inc., Docket No. C-4499; FTC Press Release, Google to Refund Consumers at
Least $19 Million to Settle FTC Complaint It Unlawfully Billed Parents for Children’s Unauthorized In-App
Charges (Sept. 4, 2014), at https://www.ftc.gov/news-events/press-releases/2014/09/google-refund-consumers-least-
19-million-settle-ftc-complaint-it.
75
FTC v. Amazon.com Inc., Case No. 2:14-cv-01038 (W.D. Wash.); FTC Press Release, Federal Court Finds
Amazon Liable for Billing Parents for Children’s Unauthorized In-App Charges (Apr. 27, 2016), at
https://www.ftc.gov/news-events/press-releases/2016/04/federal-court-finds-amazon-liable-billing-parents-childrens.
76
FTC Complaint, FTC v. Amazon.com Inc., Case No. 2:14-cv-01038 (W.D. Wash.), available at
https://www.ftc.gov/system/files/documents/cases/140710amazoncmpt1.pdf.
77
Order Granting Amazon’s Motion for Partial Summary Judgment and Granting the FTC’s Motion for Summary
Judgment, FTC v. Amazon.com Inc., Case No. 2:14-cv-01038 (W.D. Wash.), at 3, available at
https://www.ftc.gov/system/files/documents/cases/160427amazonorder.pdf.
78
FTC Complaint against Amazon.com Inc., supra note 76.
79
FTC Press Release, FTC, Amazon to Withdraw Appeals, Paving Way for Consumer Refunds Related to Children’s
Unauthorized In-App Charges (Apr. 4, 2017), at https://www.ftc.gov/news-events/press-releases/2017/04/ftc-
amazon-withdraw-appeals-paving-way-consumer-refunds-related; FTC Press Release, Refunds Now Available from
Amazon for Unauthorized In-App Purchases (May 30, 2017), at https://www.ftc.gov/news-events/news/press-
releases/2017/05/refunds-now-available-amazon-unauthorized-app-purchases.

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80
Dark Patterns Workshop Transcript, at 26-27; Luguri & Strahilevitz, Shining a Light on Dark Patterns, supra note
8.
81
Dark Patterns Workshop Transcript, at 28; Luguri & Strahilevitz, Shining a Light on Dark Patterns, supra note 8.
82
FTC, “Negative Options: A Workshop Analyzing Negative Option Marketing,” at https://www.ftc.gov/news-
events/events/2007/01/negative-options-workshop-analyzing-negative-option-marketing.
83
A negative option is a term or condition under which the seller may interpret the consumer’s silence or failure to
take action to reject a good or to cancel an agreement as acceptance or continuing acceptance of the offer. A
common example of a negative option is a company offering a free trial period, followed by a recurring subscription
charge if the consumer doesn’t cancel the subscription before the free trial runs out. Other examples include
automatic renewals, continuity plans, fee-to-pay conversions, and prenotification plans. See Enforcement Policy
Statement Regarding Negative Option Marketing, 86 Fed. Reg 60822, supra note 4. See also Telemarketing Sales
Rule, 16 U.S.C. § 310.2(w) (“Negative option feature means, in an offer or agreement to sell or provide any goods
or services, a provision under which the customer's silence or failure to take an affirmative action to reject goods or
services or to cancel the agreement is interpreted by the seller as acceptance of the offer.”).
84
The staff report covered topics such as disclosure of material terms, including their appearance and timing;
obtaining consumers' affirmative consent; and appropriate cancellation procedures. FTC, Negative Options: A
Report by the Staff of the FTC’s Division of Enforcement (January 2009), available at
https://www.ftc.gov/sites/default/files/documents/reports/negative-options-federal-trade-commission-workshop-
analyzing-negative-option-marketing-report-staff/p064202negativeoptionreport.pdf.
85
Rule on the Use of Prenotification Negative Option Plans, 16 CFR Part 425.
86
The Restore Online Shoppers’ Confidence Act (“ROSCA”), 15 U.S.C. §§ 8401-8405.
87
Id.
88
See e.g., FTC v. AdoreMe, Inc., Case No. 1:17-cv-09083 (S.D.N.Y.); FTC Press Release, Online Lingerie
Marketer Prohibited from Deceiving Shoppers About Negative-Option Programs (Nov 21, 2017), at
https://www.ftc.gov/news-events/news/press-releases/2017/11/online-lingerie-marketer-prohibited-deceiving-
shoppers-about-negative-option-programs; In re: UrthBox, Inc., Docket No. C-4676; FTC Press Release, UrthBox
Settles FTC Charges Related to Compensated Online Reviews and “Free” Trial Offer (April 3, 2019), at
https://www.ftc.gov/news-events/news/press-releases/2019/04/urthbox-settles-ftc-charges-related-compensated-
online-reviews-free-trial-offer; U.S. v MyLife.com, Inc., Case No. 20-cv-6692 (C.D. Cal.); FTC Press Release, FTC,
DOJ Obtain Ban on Negative Option Marketing and $21 Million for Consumers Deceived by Background Report
Provider MyLife (Dec.16, 2021), at https://www.ftc.gov/news-events/news/press-releases/2021/12/ftc-doj-obtain-
ban-negative-option-marketing-21-million-consumers-deceived-background-report.
89
FTC v. Health Formulas, LLC, also d/b/a Simple Pure Nutrition, Case No. 2:14-cv-1649-RFB-GWF (D. Nev.);
FTC Press Release, Marketers of Simple Pure Supplements Settle FTC Court Action (May 3, 2016), at
https://www.ftc.gov/news-events/press-releases/2016/05/marketers-simple-pure-supplements-settle-ftc-court-action.

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FTC Complaint, FTC v. Health Formulas, LLC, also d/b/a Simple Pure Nutrition, Case No. 2:14-cv-1649-RFB-
90

GWF (D. Nev.), available at https://www.ftc.gov/system/files/documents/cases/1604simplepurecmpt.pdf.

91
See Dark Patterns Workshop Transcript, at 4; Helena Vieria, Bad choice design can be particularly harmful for
less educated individuals (January 31, 2018), at https://blogs.lse.ac.uk/businessreview/2018/01/31/bad-choice-
design-can-be-particularly-harmful-for-less-educated-individuals/ (Studying consumers who had been enrolled in
fraudulent subscription services, researchers found that cancelling subscriptions by default increased cancellations to
99.8 per cent—63.4 percentage points higher than requiring consumers to actively cancel in response to a complex,
five-paragraph letter). In addition to costing consumers money, companies with overly-difficult cancellation
procedures may also harm competition; such unlawful customer-retention practices can prevent consumers from
being able to switch to other providers in the market who may better fit their interests or offer better price terms.
See, e.g., EU Dark Patterns Report, at 92; CMA Online Choice Architecture Paper, at 32.
92
FTC v. Age of Learning, Inc., also d/b/a ABCmouse and ABCmouse.com, Case No. 2:20-cv-07996 (C.D. Cal.);
FTC Press Release, Children’s Online Learning Program ABCMouse to Pay $10 Million to Settle FTC Charges of
Illegal Marketing and Billing Practices (Sept. 2, 2020), at https://www.ftc.gov/news-events/press-
releases/2020/09/childrens-online-learning-program-abcmouse-pay-10-million-settle.
93
FTC Complaint, FTC v. Age of Learning, Inc., also d/b/a ABCmouse and ABCmouse.com, Case No. 2:20-cv-
07996 (C.D. Cal.), available at https://www.ftc.gov/system/files/documents/cases/1723086abcmousecomplaint.pdf.
94
Id.
95
Id.
96
Id.
97
Id.
98
Dark Patterns Workshop Transcript, at 6 (“For example, trying to cancel a premium subscription when you're
called to call a phone line during working hours, to then have a rep try and talk you out of it for 10 minutes before
you’re finally allowed to leave.”).

ROSCA requires sellers of good and services over the internet using a negative option feature to provide a simple
99

mechanism for the consumer to stop recurring charges. 15 U.S.C. § 8403(3).

100
Beyond the general guidance in part III, the FTC has given additional guidance in specific contexts, such as a
negative option. See, e.g., FTC, Enforcement Policy Statement Regarding Negative Option Marketing, 86 Fed. Reg
60822 at 60825 (Nov. 4, 2021) (“To attain express informed consent, the negative option seller should obtain the
consumer’s acceptance of the negative option feature offer separately from any other portion of the entire
transaction; not include any information that interferes with, detracts from, contradicts, or otherwise undermines the
ability of consumers to provide their express informed consent to the negative option feature; obtain the consumer’s
unambiguously affirmative consent to the negative option feature; obtain the consumer’s unambiguously affirmative
consent to the entire transaction; and be able to verify the consumer’s consent.”).

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101
See, e.g., definition of “Express, Informed Consent” in the FTC’s Orders against Apple Inc., available at
https://www.ftc.gov/sites/default/files/documents/cases/140115appleagree.pdf, and Google, available at
https://www.ftc.gov/system/files/documents/cases/141205googleplaydo.pdf.

See FTC v. Health Formulas, LLC, Case No. 2:14-CV-01649-RFB, 2015 WL 2130504, at *17 (D. Nev. May 6,
102

2015) (inadequate disclosures “cannot serve as the basis for customers’ express, informed consent.”).
103
Dark Patterns Workshop Transcript, at 47 (“All your accounts are connected to that [cell phone] device. And it
presumes that there’s a single user. But in many communities, cell phones are a luxury commodity. They’re shared
among individuals. There’s no way to protect individual users on a cell phone. So we have this bias in the way that
we build these technologies.”).
104
Enforcement Policy Statement Regarding Negative Option Marketing, 86 Fed. Reg 60822 at 60826, supra note 4.
105
Id.
106
See Dark Patterns Workshop Transcript, at 11 (“There’s no excuse for not allowing users to leave a service in the
same location they signed up for it.”)
107
Enforcement Policy Statement Regarding Negative Option Marketing, 86 Fed. Reg 60822 at 60826, supra note 4.
108
See FTC v. RagingBull.com, LLC, Case No. 1:20-cv--3538 (D. Md.); FTC Press Release, Online Investment Site
to Pay More Than $2.4 Million for Bogus Stock Earnings Claims and Hard-to-Cancel Subscription Charges
(March 8, 2022), at https://www.ftc.gov/news-events/news/press-releases/2022/03/online-investment-site-pay-more-
24-million-bogus-stock-earnings-claims-hard-cancel-subscription.
109
See Dark Patterns Workshop Transcript, at 32; IDAC Public Comment, supra note 12, at 1 (“User interfaces for
opting out of data sharing are often impossible to navigate, leaving users either unaware of their privacy options or
frustrated in their effort to exercise their rights.”).
110
See Dark Patterns Workshop Transcript, at 32, 45. One panelist asserted that a dark pattern that subverts
consumer privacy preferences also “undermines competition by enabling an incumbent online service to extract
valuable consumer data and entrench their market dominance.” Id. at 32.
111
Id. at 8, 31-32, 38-39, 69; See also Transcript of FTC Hr’g, The FTC’s Approach to Consumer Privacy (Apr. 10,
2019), at 129, available at
https://www.ftc.gov/system/files/documents/public_events/1418273/ftc_hearings_session_12_transcript_day_2_4-
10-19.pdf (remarks of FTC Commissioner Rebecca Kelly Slaughter, describing privacy consent as illusory because
consumers often have no choice other than to consent in order to reach digital services that have become necessary
for participation in contemporary society, and even where it appears consumers gave valid consent, that agreement
might be a product of manipulative dark patterns); Neil Richards & Woodrow Hartzog, The Pathologies of Digital
Consent, 96 Wash. U. L. Rev. 1461, 1489 (2019) (describing several examples of what the authors call “coerced
consent”—including when a user does not have the option to decline but only to accept “later,” or a user interface
that words the option to decline in such a way as to shame the user into compliance—which at scale, the authors
argue, can accumulate to deplete a user’s resolve with respect to their privacy choices).

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112
Id. at 8. See also EU Dark Patterns Report, at 94 (“For instance, the results showed that nudging (highlighting
“Accept” buttons or pre-selecting checkboxes) substantially affects people’s acceptance of cookies, providing clear
evidence for the interference of such dark patterns with people’s consent decisions.”) (citing Utz, C., Degeling, M.,
Fahl, S., Schaub, F., & Holz, T., (Un) informed consent: Studying GDPR consent notices in the field (Nov. 2019);
DuckDuckGo, Public Comment Submitted to FTC on Dark Patterns Issues, FTC-2021-0019-0103, at 2, available at
https://www.regulations.gov/comment/FTC-2021-0019-0103; Damien Snyder, Public Comment Submitted to FTC
on Dark Patterns Issues, FTC-2021-0019-0001, available at https://www.regulations.gov/comment/FTC-2021-0019-
0046.
113
Dark Patterns Workshop Transcript, at 8.
114
Id. at 33 (“So I’m of the opinion that the present mechanism of hitting ‘I Accept’ with no attempt to actually
inform you in a user-friendly way of what you're consenting to is potentially inherently manipulative.”). See also
EU Dark Patterns Report, at 21 (“Individuals do not give meaningful and conscious consent to the use of their data
and their behaviours are easily influenced through environmental cues, such as defaults, and the design of web
environments owing to pervasive reliance on heuristics and social norms (see for instance Acquisti et al., 2015 or
Richards & Hartzog, 2019).”).
115
Dark Patterns Workshop Transcript, at 32-33, 39. See also EU Dark Patterns Report, at 60 (“Overall, an
important concern for mystery shoppers was not knowing for sure how the websites/apps used their personal data,
and with which other companies they would share it. They noted that some websites/apps were asking them for a lot
more personal data than what was considered useful for the functioning of the service (e.g., gender, birthdate,
astrological sign, etc).”); DuckDuckGo Public Comment, supra note 112, at 3; Digital Democracy Public Comment,
supra note 15, at 18.
116
Dark Patterns Workshop Transcript, at 32.
117
Id. at 32 (“cell phone numbers are kind of the new social security number in some ways because we don’t change
them . . . it’s another way they can identify you.”); id. at 67 (describing as a dark pattern the FTC’s allegation that
Facebook collected phone numbers purportedly to enable two-factor authentication, but also used the information to
target ads).
118
Id. at 39.
119
Id. at 39 (“And location data is extremely valuable and can reveal so many things about you, such as where you
live, where you work, where you spend your nights. It can reveal your political affiliation, your religious affiliation,
your sexual orientation, and so on.”); see also Jon Keegan & Alfred Ng, There’s a Multibillion-Dollar Market for
Your Phone’s Location Data, The Markup (Sept. 30, 2021), available at
https://themarkup.org/privacy/2021/09/30/theres-a-multibillion-dollar-market-for-your-phones-location-data
(explaining that a consumer’s location data can be sold repeatedly in the location data marketplace, such as to
aggregators that resell the data to multiple sources, to location intelligence firms that use the raw data to analyze foot
traffic in retail locations and demographics of visitors, and to hedge funds looking for insights into the popularity of
certain stores).

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120
FTC v. Kochava, Inc., Case No. 2:22-cv-377 (D. Idaho); FTC Press Release, FTC Sues Kochava for Selling Data
that Tracks People at Reproductive Health Clinics, Places of Worship, and Other Sensitive Locations (Aug. 29,
2022), at https://www.ftc.gov/news-events/news/press-releases/2022/08/ftc-sues-kochava-selling-data-tracks-
people-reproductive-health-clinics-places-worship-other.
121
FTC Complaint, FTC v. Kochava, Inc., Case No. 2:22-cv-377 (D. Idaho), available at
https://www.ftc.gov/system/files/ftc_gov/pdf/1.%20Complaint.pdf.
122
FTC Staff Report, What ISPs Know About You: Examining the Privacy Practices of Six Major Internet Service
Providers (Oct. 21, 2021), available at https://www.ftc.gov/system/files/documents/reports/look-what-isps-know-
about-you-examining-privacy-practices-six-major-internet-service-providers/p195402_isp_6b_staff_report.pdf
[hereinafter FTC Staff Report—What ISPs Know About You].
123
FTC Staff Report—What ISPs Know About You, at 39.
124
Id. at 39. See also Dark Patterns Workshop Transcript, at 33 (“And I’d really like to see solutions that go further
than just giving us kind of new looks on existing interfaces, such as, one of the things we look at is whether the
Accept button is highlighted in advance.”).
125
FTC Staff Report—What ISPs Know About You, at 39-40.
126
Id. at 40-41. See also FTC Complaint, PayPal, Inc., Docket No. C-4651, available at
https://www.ftc.gov/system/files/documents/cases/1623102_c-4651_paypal_venmo_complaint_final.pdf (alleging
that where two different settings related to the public visibility of users’ transactions on Venmo, Respondent failed
to disclose, or failed to disclose adequately, that toggling off one setting did not ensure that future transactions
would be visible only to a more limited audience (i.e., only to friends or to other participants in the transaction)).
127
FTC Staff Report—What ISPs Know About You, at 41.
128
FTC v. VIZIO, Inc. and VIZIO Inscape Servs., LLC, (D. N.J.); FTC Press Release, Vizio to Pay $2.2 Million to
FTC, State of New Jersey to Settle Charges It Collected Viewing Histories on 11 Million Smart Televisions Without
Users’ Consent (Feb. 6, 2017), at https://www.ftc.gov/news-events/press-releases/2017/02/vizio-pay-22-million-ftc-
state-new-jersey-settle-charges-it.
129
FTC Complaint, FTC v. VIZIO, Inc. and VIZIO Inscape Servs., LLC, (D. N.J.), available at
https://www.ftc.gov/system/files/documents/cases/170206_vizio_2017.02.06_complaint.pdf.
130
Id.
131
Id.
132
FTC v. Sunkey Publ’g, Inc. et. al, Case No. 3:18-cv-01444-HNJ (N.D. Alabama); FTC Press Release, FTC Takes
Action against the Operators of Copycat Military Websites (Sept. 6, 2018), at https://www.ftc.gov/news-
events/press-releases/2018/09/ftc-takes-action-against-operators-copycat-military-websites.

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133
FTC Complaint, FTC v. Sunkey Publ’g, Inc. et. al, Case No. 3:18-cv-01444-HNJ (N.D. Alabama), available at
https://www.ftc.gov/system/files/documents/cases/sunkey_filed_complaint.pdf.
134
Id.
135
FTC v. Day Pacer LLC, f/k/a College Criteria LLC, also d/b/a Edutrek, Case No. 1:19-cv-01984 (N.D. Ill.); FTC
Press Release, FTC Charges Telemarketing Operation with Misleading Job Seekers and Making Millions of Illegal,
Unsolicited Calls (Apr. 12, 2019), at https://www.ftc.gov/news-events/press-releases/2019/04/ftc-charges-
telemarketing-operation-misleading-job-seekers-making.
136
FTC v. Blue Global and Christopher Kay, (D. Ariz.); FTC Press Release, FTC Halts Operation that Unlawfully
Shared and Sold Consumers’ Sensitive Data (July 5, 2017), at https://www.ftc.gov/news-events/press-
releases/2017/07/ftc-halts-operation-unlawfully-shared-sold-consumers-sensitive.
137
FTC v. ITMedia Solutions LLC, et al., Case No. 2:16-cv-09483 (C.D. Cal.); FTC Press Release, Lead Generator
that Deceptively Solicited Loan Applications from Millions of Consumers and Indiscriminately Shared Sensitive Info
Agrees to Pay $1.5 Million FTC Penalty (Jan. 7, 2022), at https://www.ftc.gov/news-events/press-
releases/2022/01/lead-generator-deceptively-solicited-loan-applications-millions.

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