Michael Rosenbloom (Stanford Law School) has posted Clearing the Darkened Air: Regulating Dark Patterns as Air Pollution (25 Minn. J.L. Sci. & Tech. 139 (2024)) on SSRN. Here is the abstract:
Digital platforms and services use exploitative user interfaces known as dark patterns to extract people’s money, data, and time. Current regulations struggle to preserve user autonomy online or ensure a flourishing digital economy against the probabilistic and collective nature of dark patterns. However, other areas of law contain examples of successful regulation of similarly elusive problems. This article takes inspiration from environmental law to examine how dark patterns present a similar problem to air pollution, and outlines regulation based upon the structure of the Clean Air Act.
Dark patterns and air pollution share important characteristics: both harm in a probabilistic manner that individuals lack agency to defend against and take similar roles in profit production. Scholars have written about the use of environmental analogies in the data privacy context, but this article is the first to examine their uses for dark patterns specifically. By learning from the significant successes of the Clean Air Act in mitigating the harms of airborne pollutants, this article provides grounds for addressing similarly challenging digital harms.
