Designing a Pattern, Darkly

There is growing academic, regulatory, and legislative interest in “dark patterns”—digital design practices that influence user behavior in ways that may not align with users’ interests. For instance, websites may present information in ways that influence user decisions, or use design elements that make it easier for users to engage in one behavior (e.g., purchasing the items in a shopping cart) than another (e.g., reviewing the items in that shopping cart). The general thrust of this interest is that dark patterns are problematic and require regulatory or legislative action. While acknowledging that many concerns about dark patterns are legitimate, this Article discusses the more nuanced reality about “patterns,” that design is, simply, hard.

All design influences user behavior, sometimes in positive ways, sometimes in negative, sometimes deliberately, sometimes not. This Article argues for a more cautionary approach to addressing the concerns of dark patterns. The most problematic uses of dark patterns almost certainly run afoul of existing consumer protection law. That authority––not new, broader rules—should be the first recourse to addressing these concerns.

Beyond that, this is an area where the marketplace––including the design professionals working to improve User Interface and User Experience design practices––should be allowed to continue to develop, but with the understanding that Congress and regulators have a keen interest in ensuring that consumer interests are reflected in those practices.