Technological design is power. To be meaningful, regulation must address design.
The design of technology controls what people can and can’t do, how people behave, how people interact with others, the way people make decisions, how much personal data they disclose, and many other things.
Policymakers have been reluctant to regulate design. But it’s nearly impossible to regulate technology without addressing design.
Algorithmic Content Curation
Algorithms determine what content we see online. Algorithms often favor content that is polarizing and emotion-inducing. This can rile people up and make them more extreme and violent. The algorithms at some platforms promote certain ideologies over others, trying to shape user beliefs. Tech companies must be held accountable when their algorithms cause harm.
Default Settings
Default settings exert an enormous influence on users because most people don’t change the initial settings. Many sites have default settings that allow for extensive data collection and sharing. Laws should mandate that default settings maximize privacy and avoid unexpected data gathering, disclosure, and use.
Manipulating Behavior
Design can encourage certain behavior. In one case, an app created a competition to get a snap of how fast people were driving. This encouraged users to speed, and a group of teens crashed and died trying to get a fast speed. When design leads people to engage in risky or harmful conduct, the designers should be held accountable.
Mandatory Transparency
Technology should be designed to protect other people from users who might invade their privacy. For example, glasses or devices that record video or audio can be designed to light up or make a sound when they are on so that people being recorded know. They should be designed in ways so the recording functions can be blocked externally, such as in schools, locker rooms, bathrooms, and confidential group meetings.
Interfaces
Tech often interacts with users through an interface. This interface shapes how people perceive and think about the technology. Policymakers should restrict interfaces that are deceptive or unduly manipulative.
Click Tricks
Various buttons and features on sites constantly are shuffled around to exploit users’ muscle memory and induce them to click on things they don’t want to click on. Buttons to close are small or hidden in the hope of getting users to accidentally click on an ad. The law should restrict unreasonable design elements.
Bundling
Various features are bundled together to make them harder to escape. AI tools are increasingly integrated into everything and become difficult to escape. The law should prevent unnecessary bundling.
Icons and Misleading Analogies
A letter icon for email fosters the analogy to postal mail, but this is a misleading analogy because snail mail is often much more private. A delete icon creates the impression that a file is deleted, but it’s actually just put in a trash folder and isn’t fully gone until overwritten. There should be greater efforts to educate users to counteract design elements that can be misleading.
Built-in Guardrails
Technologies are often designed in ways that can readily be abused. Tech used by the government to watch and track people are often built without any guardrails. The law should mandate they be designed with access restrictions and limitations on their scope and power.
Dark Patterns
A “dark pattern” is a term to describe a deceptive or manipulative design. Dark patterns make it hard for people to do what they want to do (such as close an account or request help from customer service). They can trick people into sharing data they don’t want to share. Laws are already limiting dark patterns, and the trend should continue.
Language
The way tech is designed to communicate with us has profound effects on us. Chatbots talk to us as if they are people. They speak in the first person and discuss bodily experiences and emotions. All this is not only deceptive, but it also exploits the Eliza effect, which is a phenomenon where anthropomorphism evokes emotions and influences users even when they know the tech isn’t human. The law should deem chatbots that communicate in these ways to be deceptive or unfair.
Tech design is power. Meaningful regulation of technology must address design.
Additional Reading
Daniel J. Solove, On Privacy and Technology (2025)
Woodrow Hartzog, Privacy’s Blueprint (2018)
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Daniel J. Solove is the Bernard Professor of Intellectual Property and Technology Law at the George Washington University Law School. He is the founder of TeachPrivacy, a company that provides workforce privacy, cybersecurity security, and AI training to companies and organizations around the world. He is the author of 10+ books and 100+ articles.
You can follow his events, writings, training, cartoons, and resources by subscribing to his free weekly newsletter.
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