MARY LOUISE KELLY, HOST:
Today in Seattle, the U.S. government and Amazon are making their opening arguments in a case that could change how companies sell you stuff online. The Federal Trade Commission claims that Amazon tricked users into subscribing to its Prime membership program and then made it difficult to cancel. At the heart of the case is something called dark patterns, also known as deceptive patterns or manipulative design. Monica Nickelsburg reports for KUOW's economy podcast Booming and has our story.
MONICA NICKELSBURG, BYLINE: If you've ever found it impossible to find the unsubscribe button or accidentally opted in to accepting all cookies, you may have fallen for a dark pattern. The term was first coined by Harry Brignull, a user experience designer and psychologist.
HARRY BRIGNULL: When you use a website or an app, you're probably part of a psychology experiment that the business is running. You're like a lab rat in a maze, and they're trying to work out what sort of design is most likely to get you to engage in the behavior that makes them the most money.
NICKELSBURG: That might look like a big, bright button that signs you up for a monthly subscription next to a tiny gray one that says something like, no, thanks, I don't want to save a lot of money. Anyone who's ever tried to cancel a gym membership knows this kind of thing predates the internet, but Brignull says...
BRIGNULL: The internet has transformed the ease with which we can deploy this stuff and the ease with which we can measure it and prove that it works.
NICKELSBURG: Experts like Andrea Matwyshyn say when that design tricks a consumer into doing something they didn't intend to, it becomes a dark pattern. She's a law professor at Penn State University, and she served as an academic adviser to the FTC.
ANDREA MATWYSHYN: The question is when design crosses the line into a situation where a reasonable consumer does not have a fair shot of understanding what's going on.
NICKELSBURG: The FTC's job is to crack down on deceptive business practices. In the lawsuit, the FTC claims Amazon used dark patterns to trick millions of Prime members into renewing their subscriptions. When NPR reached out, Amazon didn't respond directly to that claim, instead pointing to a trial brief that says enrolling in Prime always requires affirmative consent.
The brief also says there's no clear law that prohibits dark patterns. Instead, the FTC is trying to take a broad law against fraud and make it apply to these practices through interpretation. Matwyshyn says the law is written to be intentionally broad so the FTC can regulate whatever the technology and business practices of the moment are.
MATWYSHYN: If you hand me a stack of papers with all of the relevant terms about our contract and you decide to rubber cement two pages together, were the pages all there? Well, yeah, technically they were all there, but you did something extra where I was unfairly disadvantaged.
NICKELSBURG: The FTC says that Amazon didn't just convince users to unknowingly renew their Prime memberships. It also accuses Amazon of making it really hard to unsubscribe. The complaint describes a four-page, six-click, 15-option journey to cancel and claims that Amazon had a code name for this process - the Iliad Flow. Lorrie Cranor, a professor at Carnegie Mellon University and director of its CyLab Security and Privacy Institute, says that code name is revealing. English majors may remember "The Iliad" is about the epic 10-year siege of Troy.
LORRIE CRANOR: When you look at these deceptive and manipulative patterns, in some cases, it's easy to believe that they were not intentional and they accidentally made it harder than it should be. And then there are other cases where you just have to conclude that they did it on purpose.
NICKELSBURG: Amazon didn't respond to questions about the Iliad Flow, but again pointed to the brief, which says there are at least 40 ways to get to the cancellation page and once there, unsubscribing takes a matter of seconds. An FTC victory could make an example of Amazon that discourages other companies from using dark patterns. But if Amazon prevails, it's likely to be business as usual on the internet.
For NPR News, I'm Monica Nickelsburg in Seattle. Transcript provided by NPR, Copyright NPR.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.