The Challenges of Using the Current Law to Address Dark Patterns, A Conversation with Special Guest Gregory Dickinson, Assistant Professor, St. Thomas University, Benjamin L. Crump College of Law

After discussing what are “dark patterns” and the most common forms they can take, we consider whether and how “dark patterns” used to influence consumers’ online behavior differ from traditional scams directed at consumers involving the use of deception. We then discuss the federal and state statutes and common law claims currently being used to challenge the use of “dark patterns” as well as current legislative action to more directly target “dark patterns” and the challenges lawmakers face in crafting new legislation. We also assess the effectiveness of using private lawsuits rather than government enforcement to police the use of “dark patterns.” We conclude with practical steps companies should consider taking to avoid the risk of enforcement or private actions arising from claims that “dark patterns” are present in their user interface designs. Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.