The rally for heightened U.S. enforcement against so-called "dark patterns" pushed forward Monday with a group of state attorneys general filing or preparing to file lawsuits over alleged dark patterns linked to Google's location data practices. Washington, D.C., Attorney General Karl Racine announced he and attorneys general from Indiana, Texas and Washington State were staging a coordinated effort to address Google's alleged work on "deceiving and manipulating consumers to gain access to their location data."

"Google falsely led consumers to believe that changing their account and device settings would allow customers to protect their privacy and control what personal data the company could access," Racine said in a statement. "The truth is that contrary to Google’s representations it continues to systematically surveil customers and profit from customer data. Google's bold misrepresentations are a clear violation of consumers’ privacy."

Dark patterns involve the use of deceptive and manipulative practices to influence users' online decisions. The most notable applications of dark patterns in recent years have been around user consent, which is the basis for the new suits against Google. In the announcement for Washington State's action, Attorney General Bob Ferguson accused the company of collecting location data in spite of user preferences and after consumers turn off their location history in their account settings.

"Location data is deeply personal for consumers," Ferguson said. "This information reveals the most significant details of our lives. Google denied consumers the ability to choose whether Google could track their sensitive location data to make a profit."

According to The Washington Post, Google has already refuted the pending claims. In a statement, Google Policy Communications Manager Jose Castañeda said the allegations are based on "inaccurate claims and outdated assertions about our settings," adding that Google will "vigorously defend" its privacy features and "robust controls for location data."

The legal action taken Monday continues a trend toward mitigating and vanquishing the use of dark patterns by U.S. companies. This movement is being pressed forward through regulation at the state level as the California Privacy Rights Act and the Colorado Privacy Act each carry provisions against dark patterns that will respectively take effect Jan. 1, 2023, and July 1, 2023. At the federal level, the U.S. Federal Trade Commission announced in October 2021 plans to increase its dark patterns enforcement.

"Today’s enforcement policy statement makes clear that tricking consumers into signing up for subscription programs or trapping them when they try to cancel is against the law," Samuel Levine, Director of the FTC’s Bureau of Consumer Protection, said. "Firms that deploy dark patterns and other dirty tricks should take notice."

While attention and action are welcomed, a growing disconnect between state and federal approaches is becoming apparent due in large to the lack of consensus organizations have around what constitutes a dark pattern.

"On the federal level and under most state consumer protection laws, regulators can only commence enforcement actions when there are deceptive or unfair practices," Davis & Gilbert Partner Gary Kibel, CIPP/US, said. "Therefore, there is no alignment between regulators, industry and consumers as to what constitutes a dark pattern. It may be that we must rely on the old Justice Potter Stewart approach — 'I know it when I see it.'"

Alyce General Counsel & Chief Privacy Officer Andrew Dale, CIPP/E, CIPP/US, offered a similar take on the uncertainty the U.S. business community is working through while speaking with IAPP Staff Writer Jennifer Bryant in August 2021 regarding the growing spotlight on dark patterns.

"At this point we are reacting on what feels like a dark pattern and what does not feel like a dark pattern, and I don't think that’s going to work in the long-term because technology will move lightyears faster than regulation, and so to get a better understanding of what consumers are comfortable with and not comfortable with is a good start, but I don’t think we’re there yet," Dale said. "I don’t think we have the framework in which to work."

Photo by Paweł Czerwiński on Unsplash