On May 28, 2021, at 9:30 AM Philippine time (Thursday, May 27 at 8:30 PM Eastern), I will be speaking about “The Myth of the Privacy Paradox” at the Philippines Privacy Week event put on by the Philippines National Privacy Commission (NPC).
My talk will be moderated by Jon Bello, a partner at Medialdea Bello and Suarez Law Offices.
Please check out the conversation I had with Alexandra Ross and Elena Elkina about dark patterns.
A “dark pattern” is a term coined in 2010 by Harry Brignull, who defined it as “a user interface that has been carefully crafted to trick users into doing things, such as buying insurance with their purchase or signing up for recurring bills.” The California Privacy Rights Act (CPRA) defines a “dark pattern” as “a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice, as further defined by regulation.”
For more background about dark patterns, please see my recent post for Dark Patterns Reading List and Resources. In this post, I provide a list of useful articles, writings, websites, videos, and other resources on dark patterns.
On this podcast, Info Matters, I chat with Patricia Kosseim, Information and Privacy Commissioner (IPC) of Ontario, Canada about kids and privacy and my children’s book on privacy, THE EYEMONGER.
Episode Summary: Parents, kids, teachers, this one’s for you! Explaining privacy in a way that kids can understand — concepts and tools you can use to start discussing this very important topic from a young age. Conversation with international privacy expert Daniel Solove with highlights from his children’s book The Eyemonger.
If you’re interested in children’s privacy, I created a page of resources about children’s privacy for educators and parents here.
Dark patterns are starting to receive increased regulatory attention, which is a welcome development in the evolution of privacy law. Here’s a dark patterns resource and reading list.
What Are “Dark Patterns”?
Harry Brignull coined the term “dark pattern” in 2010, defining it as “a user interface that has been carefully crafted to trick users into doing things, such as buying insurance with their purchase or signing up for recurring bills.” He now has a site devoted to dark patterns.
Regulating Dark Patterns
Dark patterns are increasingly becoming a focus of regulation. Regulators have long been reluctant to regulate technological design, but increasingly the reality is becoming clear: To effectively protect privacy, design must be regulated. The term “dark patterns” is catching on, and regulators are increasingly emboldened to regulate. It’s far more palatable to try to stop “dark patterns” than it is to restrict certain “technological designs.”
Under the California Privacy Rights Act (CPRA), the use of dark patterns to obtain consent will render consent invalid. A dark pattern is “a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice, as further defined by regulation.” The privacy bill pending in the State of Washington seeks to restrict dark patterns. The FTC will be holding a dark patterns workshop later this month.
Dark Patterns Reading List and Resources
Here’s a list of resources about dark patterns that are worth attention:
This cartoon is about “data ethics,” a term for when companies make an effort to review the ethical ramifications of their activities involving personal data. I generally applaud looking at ethics broadly because it avoids being unduly constrained in its focus by narrow conceptions of privacy. But there often isn’t sufficient rigor in the analysis of data ethics.
Ultimately, companies are formed to make a profit. We must not forget their true nature. A tiger can snuggle with you like a kitten, but it is still a tiger. Corporations can act ethically, but their nature is to make profits. When profits conflict with ethics, it’s hard for companies to resist the pull of their nature. This is why regulation is a necessity.
We should reward companies for acting ethically. But just as with the snuggly tiger, we shouldn’t ever let our guard down.