Sen. Mark Warner, D-Va., on Tuesday rolled out the first in a series of bills aimed at regulating Facebook and other social media companies, even as the path to an all-encompassing federal online privacy law remains murky.
The bill, which Warner introduced with co-sponsor Sen. Deb Fischer, R-Neb., bans online platforms with over 100 million monthly active users from using so-called "dark patterns." The term refers to interfaces designed to coax users into taking actions that often result in giving up more information than the user realizes — such as prompts to access phone and email contacts in order to keep using the platform.
The legislation, known as the Deceptive Experiences To Online Users Reduction (DETOUR) Act, would also create a regulator within the Federal Trade Commission that would enforce best practices as platforms evolve to protect users' interests.
The effort is one of several aiming to rein in social media companies in the wake of data breaches, privacy scandals, and harsh scrutiny of practices that allow harmful content to be disseminated. The focus on specific issues such as dark patterns comes in the absence of progress on broad-based regulation, despite seemingly bipartisan support building in the year since Facebook CEO Mark Zuckerberg testified on Capitol Hill.
So far, a few tech companies and industry groups — including Microsoft, Mozilla and Common Sense — have pledged to support it. Warner discussed the bill with Google CEO Sundar Pichai during his trip to Washington two weeks ago.
Roger McNamee, a longtime Silicon Valley venture capitalist and early Facebook investor, called the practice of employing dark patterns "low-hanging fruit" on Capitol Hill.
"By definition, they are deceptive — who's going to be against it?" said McNamee, a regulatory activist now working with Congress and the executive branch on potential remedies.
A bipartisan group of senators is working on a federal privacy bill and met as recently as last Wednesday to discuss the legislation. The group includes Senate Commerce Committee Chairman Roger Wicker, R-Miss., Sen. Jerry Moran, R-Kan., Sen. Richard Blumenthal, D-Conn., and Sen. Brian Shatz, D-Hawaii.
Following the meeting, Moran told reporters he was "optimistic" about a path forward, but declined to elaborate about a timeline for a discussion draft.
The Senate Select Committee on Intelligence, which Warner co-chairs, began studying Facebook as part of its investigation into Russia's involvement in the 2016 election. In April 2018, Warner, along with Sen. Amy Klobuchar, D-Minn., and the late Sen. John McCain, R-Ariz., unveiled a bill that would require social media companies to register political ads the same way traditional broadcast and print media do.
A Warner spokesperson said companies have already begun implementing the bill's proposals, even though it has stalled.
Warner plans to introduce three more bills in addition to the DETOUR Act. The next piece of legislation is expected to address data transparency, requiring tech companies to disclose the value of user data and how companies profit from it, as Axios first reported.
In July 2018, Warner published a white paper outlining ways to regulate social media and technology firms. The DETOUR Act is the first proposal stemming from that paper to be rolled out.
The paper details an example from Facebook in which a user is encouraged to upload phone contacts to the platform (see page 17 of the document posted below).