Chapter 31: Changes afoot in the United States

To begin with, it’s worth mentioning that the US is not insulated from the EU. For example, the GDPR and DSA have an extraterritorial effect. This means any business in the US has to change their practices in line with European legislation if directing products at Europeans.

EU laws have similar goals and values to the US, so they don’t require businesses to do completely opposite things. At present, the EU laws are generally more strict – so if a business complies with EU law, they’re also likely to comply with their local US federal and state law at the same time. In theory this should be attractive to US businesses as it will make them less of a target to the increasingly vigilant FTC and the ever-growing class action lawsuit industry.

While the EU has been focusing on legislation, the US has mainly been focusing on enforcement, particularly with a view to preventing anti-competitive behaviour, as it could lead to negative outcomes for the national economy and the wellbeing of its citizens. In July 2021, President Biden signed an executive order that encouraged federal agencies to increase competition and to limit corporate dominance. Around the same time, the president appointed Lina Kahn to be chair of the Federal Trade Commission, an expert in the regulation of anti-competitive behaviour, and passionate about the regulation of deceptive patterns.1 In a recent announcement, Khan made the agency’s position very clear indeed:2

‘Protecting the public, and especially children, from online privacy invasions and dark patterns is a top priority for the Commission, and these enforcement actions make clear to businesses that the FTC is cracking down on these unlawful practices.’
— Lina Kahn, FTC Chair (December 19, 2022)

In recent years, the FTC has been ramping up its enforcement actions against companies that employ deceptive patterns. In September 2022, the FTC published a staff report titled ‘Bringing Dark Patterns to Light’, detailing its position and providing guidance for businesses, with numerous examples of...

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Since 2010, Harry Brignull has dedicated his career to understanding and exposing the techniques that are employed to exploit users online, known as “deceptive patterns” or “dark patterns”. He is credited with coining a number of the terms that are now popularly used in this research area, and is the founder of the website He has worked as an expert witness on a number of cases, including Nichols v. Noom Inc. ($56 million settlement), and FTC v. Publishers Clearing House LLC ($18.5 million settlement). Harry is also an accomplished user experience practitioner, having worked for organisations that include Smart Pension, Spotify, Pearson, HMRC, and the Telegraph newspaper.