Creating Better-Informed Consumers and Reducing Dark Pattern Tendencies Through Improved Terms of Service Solutions

In Terms of Service (ToS) contracts for software applications, there are widespread and increasing uses of “dark patterns” and other subtly manipulative techniques that are categorized as deceptive marketing, which violates FTC Act’s commerce rules. Our focus is on the technological factors of UI (user interface) on current contracts. We propose a remedy of industry-set and best-practice guidelines under federal supervision, which can help establish enforceable industry standards without chilling innovation. The only way to support a user’s rights to privacy protection and transparency would be to create a set of guidelines and a model UI for usability and clarity that regulate UIs and potential dark patterns to ensure that a user is giving fully-informed consent through the ToS. Our solution is a set of guidelines with a model prototype UI that balances the needs of the major stakeholders: the government, the users, and the companies. Introduction The Google Play store released over 1.25 million apps in 2016, with the iOS App Store close behind, with just over 1 million apps released [1]. It’s no surprise that the average American is agreeing to more Terms of Service (ToS) contracts than everreading through every digital contract that the average user agrees to would take almost 250 hours every year [2]. It should also be no surprise that most, if not all, of these digital contracts go unread. Studies have shown, again and again, that we will blindly agree to relinquish our first-born child[3], to scrape chewing gum off sidewalks [4], and even to give up our immortal soul [5]. The widespread and increasing use of “dark patterns” [6] and other techniques of subtly manipulating consumers into unintentional choices, while purchasing products or agreeing to Terms of Service (ToS) contracts, violates commerce rules of the FTC Act against deceptive marketing. Abuses happen when companies employ dark patterns, or UIs specifically designed to trick users into making choices against their best interests. Dark patterns can influence users by obscuring information, presenting information misleadingly, or simply using subtle cues to bias users towards certain options. With a plethora of dark patterns emerging in the UIs of many ToS contracts that users see today, it becomes increasingly more difficult to avoid getting tricked by unscrupulous companies and websites. While current judicial precedents have deemed regular ToS as enforceable because they are usually both clearly presented and explicitly agreed to by users (Schnabel v. Trilegiant Corp), the government does little to ensure that users are not being manipulated into agreeing by UIs [7]. The OECD recommendations [8], FTC’s privacy notice proposal, Consumer Privacy Bill of Rights [9], and FIPPs, all stress the importance of users not only giving consent but giving unbiased, fully informed consent for their data to be used. The only way to support the user’s rights to privacy protection and transparency would be to bring regulations on ToS into alignment with these directives, namely by regulating UIs and dark patterns to ensure that a user giving consent means that they are giving fully informed consent. The government, the users, and the companies are all major stakeholders in this issue. Of course, it would be exceedingly difficult to develop a strategy that would satisfy all the stakeholders in this issue. Our solution seeks to find the best compromise between these parties by raising awareness for the content and meaning of ToS contracts through creating guidelines for interfaces that are more intuitive and clear to navigate without limiting companies too strictly. After all, Terms of Service contracts are a necessary step for companies to explain their services and for users to understand their rights. Specifically, we propose a set of guidelines for usability and transparency, and we have designed a model UI that reflects these guidelines. We believe that our prototype will protect the users, but at the same time, will not impinge on the ability of companies to innovate, so long as they are not employing any misleading UI designs. The prototype will also make it more straightforward for the government to evaluate ToS contracts and decide whether or not they are constitutional or enforceable. In this paper, we propose a novel design that we have implemented to increase user interaction and comprehension of ToS contracts, which has have the potential to help establish enforceable industry standards without chilling innovation. These standards, moreover, can be aligned with both European OECD standards and US policies laid out by the FTC privacy notice proposal, the Consumer Privacy Bill of Rights, and FIPPS. Finally, we analyze the results of our preliminary user testing and offer suggestions for next steps in the design, as well as future work in this area. Methods Experimental Design In our study, we wanted to compare the effectiveness of communication between our prototype Terms of Service layout (Fig 1) and the standard layout of a Terms of Service contract (Fig 2). With the two Terms of Services compared next to each other by being tested on the same research participants in randomized order, we were able collect both quantitative and qualitative feedback. For the quantitative feedback, we sought to test for the following two specific measures of effective communication: the length of time it took to read through each Terms of Service, and the comprehensibility of the main points communicated in the Terms of Service. We averaged the amount of time it took the research participants to read and complete signing the Terms of Services for the former, and for the latter, we asked research participants specific questions following the completion of the Terms of Service agreement about the big ideas being conveyed. UI Design The new UI was designed based on the two themes mentioned previously. To minimize length, the ToS was compartmentalized into three main sections, each containing 8-12 subsections. Rather than presenting the user with the entire text at once, the first page displayed three red buttons, each representing one of the three main sections: Overview of Services, Disclaimers & Liabilities, and Privacy & Copyright (Fig 1a). After clicking on a section button, the user was taken to the corresponding section page, consisting of 8-12 buttons, each representing the related subsections, as well as an “I commit” button at the bottom of the page (Fig 1b). Hovering over a subsection button would display a “TL;DR” tooltip summarizing the subsection using simple and clear language (Fig 1b). Clicking the subsection button would take the user to the corresponding subsection page, which displayed the actual text of the subsection as found in the ToS (Fig 1c). Once the user was done browsing the subsections they were interested in, they could click the “I commit” button to be taken back to the first page. Interactivity was also built into the UI. As mentioned previously, the three main section buttons were red upon opening the ToS. After entering a section and clicking “I commit”, the user would be returned to the first page, where the button corresponding to the section they had just committed to would turn green. All users quickly realized that they had to view and commit to each main section in order to turn all three buttons green, upon which the “I agree” button would appear at the bottom of the main page (Fig 1d). User Testing Participants (n=26) consisted of college-aged students. For the purpose of an unbiased study, we informed the participants that there were several parts to the study, and that in order to progress onto the main section requiring software engagement, they needed to complete specific actions for the two Terms of Services first in order to provide “informed consent”. All participants were informed that they would be participating in a study on user interaction with the popular puzzle game “Candy Crush”. In order to reach the game page, participants first had to navigate the ToS interface to give their “informed consent” to participate in the study. The purpose of this deception was the minimize the risk of any observer effects, ensuring that the participants would not change the way they interacted with the ToS in response to their awareness of being observed. Group A (n=13) were given the modified UI described in the previous section. Group B (n=13) were given a “standard” UI, consisting of a text box containing the entire ToS (17 pages) with “agree” and “disagree” buttons at the bottom. Each participant’s screen was recorded via Quicktime for the duration of the study in order to calculate the time they spent on the ToS screen. After they agreed to the ToS and completed the Candy Crush game, participants were given a short quiz on the content of the ToS for a quantitative measure of their understanding. Qualitative questions were also asked regarding the UI they saw, including what they liked and didn’t like, as well as their opinions on what would increase comprehension and readability. Results There was a significant increase in interaction time with the ToS as measured by time spent on the ToS screen for participants receiving the modified UI (Group A). These participants spent an average of 24.38 ± 7.23 seconds on the ToS screen, compared to 2.67 ± 1.76 seconds for those who received the traditional UI (Group B). The keystroke-level model (KLM) was used to estimate the execution time required by each UI. This was a necessary step in order to separate the time participants spent on clicking or moving the mouse from the time they spent actually reading and comprehending the material presented on the page. KLM consists of several operators used to model the actions necessary to complete a task on a computer interface [10]. The estimated time taken to perform each operation is determined from experimental data. To estimate the total ex