Thread by @BerinSzoka

1/ Today, the #FTC will vote to issue a staff report about last year's workshop on Dark Patterns—at which Prof. @harrybr, who helped coined the term, warned that it was "vague." Let's hope the report gets a lot more specific about what kind of cases the FTC will bring

2/ The concept of “darkness” implies that consumers are necessarily unaware of what is happening. This kind of opacity may be problematic, but by itself, insufficient under Section 5(n) of the FTC Act.

3/ An unfair practice must involve harm that is not “reasonably avoidable by consumers themselves.” In other words, it is the harm, not the practice that must be obscure to consumers.

4/ Any unfairness enforcement action will have to be specific about what constitutes “substantial injury” under Section 5. General claims about manipulating consumer preferences will not be sufficient to win in court.

5/ Such claims have been made about all forms of advertising for at least a century, but the Commission has never accepted them as adequate evidence of substantial injury as required by Congress when it enacted Section 5(n) in 1994.

6/ Finally, whatever the Commission’s theory of injury is, it will have to weigh such injury against “countervailing benefits to consumers or to competition?”

7/ Such cost/benefit analysis is key to the FTC's work yet woefully underdeveloped because the Commission almost never actually litigates unfairness cases. The FTC's complaints and consent decrees just don't tell us how to weigh such tradeoffs.

8/ Here's the FTC's Dark Patterns workshop: ftc.gov/news-events/ev…

And the transcript: ftc.gov/system/files/d…