Apple, Amazon, Samsung, Facebook, Google… they’re all constantly trying to outdo each other in offering users the best experience possible. Like old Dutch Master painters, they labor over every aspect of user experience (UX). In the Bay Area, “UX” is a high art.
But the Federal Trade Commission (thinks it) knows better. The FTC has started trying to dictate UX decisions — in the name of “protecting the children,” of course. Earlier this year, Apple settled an FTC enforcement action regarding Apple Store purchases that kids were able to make without their parents’ authorization.
In a unusually scathing dissent, Commissioner Wright blasted the Commission for not undertaking a serious analysis of the tradeoffs between making it harder for kids to buy apps without parental consent and ease of use for all users. It’s like the classic tradeoff over privacy notices: As any American who’s ever used a European website knows, UX takes a distant second to making sure everyone consents to everything. It’s the “Sign in Triplicate” school of design — utterly un-Apple.
Yesterday, the FTC announced that it was suing Amazon on similar grounds because, unlike Apple and the dozens of other companies that have settled digital consumer protection cases over the last 15 years, Amazon insisted on defending itself in court.
Why? Probably because Amazon isn’t Apple, or the King of Design, because the company has more to lose if it spends the next 20 years with the FTC second-guessing its UX decisions.
And it’s a good thing, too. As our own Geoff Manne notes, in a piece for Truth on the Market, this is another example instance of Federal Trade Commission (FTC) overreach:
It’s hard to believe that [the FTC] could mount a case against Amazon in light of the facts… There’s no question that Amazon has implemented conscious and consumer-welfare-enhancing design choices here. The FTC’s effort to nevertheless mandate a different design (and put Amazon under a 20 year consent decree) based on a claim that Amazon’s choices impose greater harms than benefits on consumers seems manifestly unsupportable. Such a claim almost certainly represents an abuse of the agency’s discretion, and I expect Amazon to trounce the FTC if this case goes to trial.
The FTC has been right to go after certain companies for making user-design decisions that deliberately manipulate and harm users — like tricking them into sharing more files than they realize. The problem is that the FTC is straying from preventing truly harmful user design into meddling with user experience questions where it’s unclear what the right answer is. The FTC is supposed to carefully weigh costs and benefits — and focus on harms consumers themselves can’t reasonably avoid. That would allow the FTC not only to avoid meddling unnecessarily but also to focus its limited resources on truly necessary interventions.
Unfortunately, the FTC gives little more than lip service to such trade-offs. And they get away with it because, until recently, they’ve settled essentially every digital consumer protection case they’ve brought. Unless companies are willing to bear the PR risk and fight in court, the FTC isn’t subject to the kind of judicial review that has shaped other areas of the law, such as antitrust, for the better.
That’s why we’ve:
- Supported Wyndham Hotels in its efforts to get the FTC to clearer notice of its requirements and explain doctrine betterBegun thinking about how Congress can reform the FTC’s processes.
- Followed closely LabMD, the only other company thus far to stand up to the FTC on data security.
See our other work on FTC reform, especially: