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-andread 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. 

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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 content27 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 profitbased 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 buttons55 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 brickand-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 workshop82 in 2007 to 

analyze the marketing of goods and services through offers with negative option83 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 dropdown 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 Publishing132 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 

Type 

Dark Pattern 

Variant Description 

ENDORSEMENTS 

(aka “SOCIAL 

PROOF”) 

False Activity 

Messages 

Making false claims about others’ activity on a site or 

interest in a product 

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 

Relationship Pressure 

Using characters that children know and trust to 

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 

Message 

Creating pressure to buy immediately by saying 

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 

Timer 

Creating pressure to buy immediately by showing a fake 

countdown clock that just goes away or resets when it 

times out 

Example: “Offer ends in 00:59:48” 

False Limited Time 

Message 

Creating pressure to buy immediately by saying the offer 

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 

Prevention 

Keeping shoppers from easily comparing prices by 

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 

Cancellation 

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

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, shortstaffing 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 

INFORMATION 

HIDING 

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

a shopper’s permission 

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 

or Forced Continuity 

Offering a free trial and, at the end of the trial, 

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 

Currency 

Hiding the real cost by requiring consumers to buy things 

with virtual currency 

Example: “coins” or “acorns” in kids’ apps 

INTERFACE 

INTERFERENCE 

Misdirection Using style and design to focus users’ attention on one 

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 

Pressured Upselling 

In giving options, using contrasting visual prominence to 

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 comparison23 
 

 

 

 

 

 

 

 

 

 

 

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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 

Transactions 

Tricking people into paying for goods or services that 

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 

or Enrollment 

Making users create an account or share their 

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 

Pyramid Schemes, 

and Address Book 

Leeching 

Asking for an email address or social media permissions 

for one purpose but then using it for another 

OR 

Making users share information about people in their 

social network 

ASYMMETRIC 

CHOICE 

Trick Questions Using ambiguity or confusing language – often double 

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 prechecked 

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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Bringing Dark Patterns to Light | Staff Report 

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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Bringing Dark Patterns to Light | Staff Report 

Here, an unexpected 

convenience fee of $4.99 

appears only right before you 

check out. 

Drip Pricing 

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Bringing Dark Patterns to Light | Staff Report 

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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Bringing Dark Patterns to Light | Staff Report 

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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Bringing Dark Patterns to Light | Staff Report 

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/pressreleases/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-plancompany-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/pressreleases/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/ftcramp-enforcement-against-illegal-dark-patterns-trick-or-trap;. 

5 FTC, “Bringing Dark Patterns to Light: An FTC Workshop,” https://www.ftc.gov/news-events/eventscalendar/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-bypractice 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-trickingconsumers-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/facttank/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 decisionmaking 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/pressreleases/2016/03/lord-taylor-settles-ftc-charges-it-deceived-consumers-through-paid-article-online-fashionmagazine. 

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-shoppingwebsite-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-itspromotion-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/pressreleases/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-milliondollar-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/pressreleases/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/pressreleases/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-guidemarketers. 

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-agreesettle-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/featuringonline-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-recognitioncontexts-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/pressreleases/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-matchcomusing-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/pressreleases/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-resortfees/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-excluderesort-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/newsevents/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-topay-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-dealernapleton-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-least19-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/ftcamazon-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/pressreleases/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/newsevents/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-workshopanalyzing-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-deceivingshoppers-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-compensatedonline-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-obtainban-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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90 FTC Complaint, FTC v. Health Formulas, LLC, also d/b/a Simple Pure Nutrition, Case No. 2:14-cv-1649-RFBGWF (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-choicedesign-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/pressreleases/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-cv07996 (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.”). 

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

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. 

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

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-more24-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-trackspeople-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-knowabout-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-ftcstate-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/newsevents/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-chargestelemarketing-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/pressreleases/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/pressreleases/2022/01/lead-generator-deceptively-solicited-loan-applications-millions. 

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