Klobuchar joins Senators Mark Warner, Deb Fischer, and John Thune on bill that combats “dark patterns” designed to trick users into giving up their personal data

WASHINGTON – U.S. Senator Amy Klobuchar (D-MN) announced her support for legislation to protect consumers from being tricked into sharing their personal data online.  Klobuchar and Senator John Thune (R-SD) cosponsored the legislation which was introduced by Senators Mark Warner (D-VA) and Sen. Deb Fischer (R-NE) in April 2019. The Deceptive Experiences To Online Users Reduction (DETOUR) Act would prohibit large online platforms from using deceptive user interfaces, known as “dark patterns,” to trick consumers into handing over their personal data.

“Dark patterns are manipulative tactics used to trick consumers into sharing their personal data. These tactics undermine consumers’ autonomy and privacy, yet they are becoming pervasive on many online platforms,” Klobuchar said. “This legislation would help prevent the major online platforms from using such manipulative tactics to mislead consumers, and it would prohibit behavioral experiments on users without their informed consent.”

“Whether you bought Christmas gifts online, downloaded a new messaging app, or tried to navigate a major browser’s byzantine privacy settings, chances are you were a victim of a dark pattern. In fact, if you wanted to score that extra discount at checkout, these design tactics most likely manipulated you into handing over more than just your email address to get that deal,” Warner said. “I’m grateful to have the support of Sen. Klobuchar and Sen. Thune on this important bill to make sure Americans have more transparency about, and control over, their interactions online.”

“Nearly every time Americans use a new app on our smart phones or browse social media from our laptops, we run into dark patterns. These unethical tricks online platforms use as they battle to capture attention and manipulate users must be stopped. I am pleased to have expanded bipartisan support for this legislation that combats risks to consumer choice and privacy online,” Fischer said.

“We live in an environment where large online operators often deploy manipulative practices or ‘dark patterns’ to obtain consent to collect user data, so I’m glad this bills takes meaningful steps to advance consumer transparency,” Thune said. “I particularly applaud the provisions of this bill that require large online operators to be more transparent about when users are subject to behavioral or psychological research for the purpose of promoting engagement on their platforms. I want to thank Sens. Warner and Fischer for leading this effort, and I’m glad to join them and Sen. Klobuchar in cosponsoring this important legislation.”

The bipartisan Deceptive Experiences To Online Users Reduction (DETOUR) Act aims to curb manipulative dark pattern behavior by prohibiting the largest online platforms (those with over 100 million monthly active users) from relying on user interfaces that intentionally impair user autonomy, decision-making, or choice. Specifically, the legislation:

• Enables the creation of a professional standards body, which can register with the Federal Trade Commission (FTC), to focus on best practices surrounding user design for large online operators. This association would act as a self-regulatory body, providing updated guidance to platforms on design practices that impair user autonomy, decision-making, or choice, positioning the FTC to act as a regulatory backstop.
• Prohibits segmenting consumers for the purposes of behavioral experiments, unless with a consumer’s informed consent. This includes routine disclosures for large online operators, not less than once every 90 days, on any behavioral or psychological experiments to users and the public. Additionally, the bill would require large online operators to create an internal Independent Review Board to provide oversight on these practices to safeguard consumer welfare. 
• Prohibits user design intended to create compulsive usage among children under the age of 13 years old.
• Directs the FTC to create rules within one year of enactment to carry out the requirements related to informed consent, Independent Review Boards, and Professional Standards Bodies.

Klobuchar has been leading the fight to protect consumers’ online privacy.

In November 2019, Klobuchar joined Commerce, Science, and Transportation Committee Ranking Member Maria Cantwell (D-WA) and fellow senior members Senators Brian Schatz (D-HI) and Ed Markey (D-MA) in unveiling comprehensive federal online privacy legislation to establish privacy rights, outlaw harmful and deceptive practices, and improve data security safeguards for the record number of American consumers who now shop or conduct business online.

The Consumer Online Privacy Rights Act (COPRA) gives Americans control over their personal data; prohibits companies from using consumers’ data to harm or deceive them; establishes strict standards for the collection, use, sharing, and protection of consumer data; protects civil rights; and penalizes companies that fail to meet data protection standards. The legislation also codifies the rights of individuals to pursue claims against entities that violate their data privacy rights.

In January 2019, Klobuchar and Senator John Kennedy (R-LA) introduced the Social Media Privacy and Consumer Rights Act, bipartisan legislation that would protect the privacy of consumers’ online data by improving transparency, strengthening consumers’ recourse options when a breach of data occurs, and ensuring companies are compliant with privacy policies that protect consumers.

Klobuchar and Senator Lisa Murkowski (R-AK) are the authors of the Protecting Personal Health Data Act, bipartisan legislation to protect consumers’ private health data not covered under existing privacy law. While recent reports have highlighted how home DNA testing kits and health data tracking apps have given companies access to unprecedented levels of consumer health data, current law does not adequately address the emerging privacy concerns presented by these new technologies. The Protecting Personal Health Data Act addresses these health privacy concerns by requiring the Secretary of HHS to promulgate regulations for new health technologies such as health apps, wearable devices like Fitbits, and direct-to-consumer genetic testing kits that are not regulated by existing laws. Last week, the senators urged the Department of Health and Human Services to examine a collaboration between Google and Ascension health system that enables Google to collect the personal health information of roughly 50 million Americans—including personally identifiable information, lab results, hospital records, and physician diagnoses—without their knowledge or consent.

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