California and Virginia Consumer Data Protection Acts Pave the Way

The recently implemented California Consumer Privacy Act (CCPA) and the recently passed Virginia Consumer Data Protection Act have policymakers and regulators gearing up for more state legislation and potential federal input.

These consumer privacy laws aim to prohibit companies from using and selling users’ data without their control. They grant new consumer protections such as the right to view collected data, delete it, revoke consent to sell it, and pursue legal action if necessary. California’s rules specifically ban businesses from using confusing language or adding unnecessary steps before a consumer can opt out of the sale of their data.

Some states are poised to adopt new consumer privacy legislation more easily given their legislative histories. In 2008, Illinois established the Biometric Information Privacy Act (BIPA) which allows a consumer to sue a company that collects their fingerprints, eye scans, or other biometric data without consent.

On April 29, the Federal Trade Commission (FTC) will hold a virtual workshop on “dark patterns.” The FTC describes dark patterns as potentially manipulative user interface designs that may obscure consumer autonomy, decision-making, and choice. The workshop hopes to explore what dark patterns are and how they might affect consumers and the marketplace.

The Federal Trade Commission Act already allows the agency to pursue companies using deceptive or unfair designs, though what rises to such a level is unclear. Advertisements especially are designed by nature to influence consumer activity, but not all influential design crosses the line.

State and federal legislation could make these issues much clearer, especially for companies operating in more than one state.

Illinois, Massachusetts, Minnesota, Oklahoma, and Washington state have proposed similar privacy laws.

Additional Reading

‘Dark Patterns’ in Consumer Data Privacy Garner Policy Attention, Bloomberg Law (March 23, 2021)

Privacy Legislation Race Heats Up After Virginia Law Passage, Bloomberg Law (March 22, 2021)

Bringing Dark Patterns to Light: An FTC Workshop, Federal Trade Commission

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