Dear Attorney General Campbell:

I write as Senate Chair of the Joint Committee on Advanced Information Technology, the Internet and Cybersecurity regarding recent regulations drafted by your office related to junk fees. At the outset, I want to thank you and your staff for the time and effort that went into drafting these critical regulations as junk fees have become endemic in our online commercial marketplace. I also would like to highlight the proposed regulation requiring that when a consumer subscribes to a service online; they must also be offered an option to cancel online. It is unacceptable that some service providers will offer online sign up with just a click or two but require consumers appear in person or send a certified letter to cancel.

I respectfully request that you consider adding two additional express protections to the draft regulations to ensure that the online sign up and cancellation parity provision is not abused by service providers: (1) a requirement that businesses must make it at least as easy to cancel a subscription as it was to start it; and (2) a prohibition against the use of dark patterns in user interfaces. Both of these items have played a prominent role in the Federal Trade Commission’s (FTC) recent activity and our state’s protections would benefit from their inclusion.

A Simple Cancellation Mechanism

Allowing online cancellation for a service when a consumer subscribes online is critical. However, protections must be added to ensure that this online cancellation option is as simple as the online sign up. Recent FTC enforcement actions demonstrate how even when a business provides an online cancellation option, the implementation of obstacles can impede a consumer’s use of that cancellation mechanism:

For example, in its case against ABCmouse, the FTC alleged the online learning site made it extremely difficult to cancel free trials and subscription plans despite promising “Easy Cancellation.” Consumers who wanted to cancel their subscriptions were often forced to navigate a difficult-to-find, lengthy, and confusing cancellation path on the company’s website and click through several pages of promotions and links that, when clicked, directed consumers away from the cancellation path.1 

Similarly, just this past June, the FTC filed a complaint against Amazon alleging that “Amazon also knowingly complicated the cancellation process for Prime subscribers who sought to end their membership. The primary purpose of its Prime cancellation process was not to enable subscribers to cancel, but to stop them.”2

The FTC charges that Amazon put in place a cancellation process designed to deter consumers from successfully unsubscribing from Prime. Previous reporting about the process in the media has noted that Amazon used the term “Iliad” to describe the process, which the reporting cites as an allusion to Homer’s epic poem set over twenty-four books and nearly 16,000 lines about the decade-long Trojan War.

Consumers who attempted to cancel Prime were faced with multiple steps to actually accomplish the task of cancelling, according to the complaint. Consumers had to first locate the cancellation flow, which Amazon made difficult. Once they located the cancellation flow, they were redirected to multiple pages that presented several offers to continue the subscription at a discounted price, to simply turn off the auto-renew feature, or to decide not to cancel. Only after clicking through these pages could consumers finally cancel the service.3

To avoid similar situations, I respectfully request that the draft regulations include as part of 940 C.M.R. 38.05(2) a comparable provision to the provision found in the FTC’s proposed “Click to Cancel” rule:

(b) Simple mechanism at least as simple as initiation. The simple [cancellation] mechanism required by paragraph (a) of this section must be at least as easy to use as the method the consumer used to initiate the negative option feature.4

Without this protection, even a requirement to provide an online cancellation option may be abused through the use of obstacles to impede the use of that online cancellation option.

Dark Patterns in User Interfaces

I also respectfully request that you expand the prohibition on visual dark patterns to include a prohibition on user interfaces designed to interfere with a consumer’s ability to utilize the online cancellation option, and any other rights under chapter 93A. Specifically, by prohibiting: “the design, modification, or manipulation of any user interface with the purpose or substantial effect of obscuring, subverting, or impairing a reasonable individual’s autonomy, decision-making, or choice.” This language is derived from the comprehensive consumer data privacy bills currently before the Joint Committee on Advanced Information Technology, the Internet and Cybersecurity this session, but it is just as important for protecting against unfair or deceptive practices, as prohibited by Chapter 93A.5

As alleged in the FTC’s complaint against Amazon, several manipulative designs were employed to interfere with a consumer’s ability to cancel their subscription.6 These include, but are not limited to:

Interface Interference. “Amazon also uses Interface Interference in the Iliad Flow by emphasizing options that divert the consumer from the flow without cancelling and by employing warning icons near the option to cancel, which evokes anxiety and fear of loss in consumers.”

“Obstruction (“Roach Motel”). “Obstruction,” also known as the “roach motel” technique, is a design element that involves intentionally complicating a process through unnecessary steps to dissuade consumers from an action.”

“Misdirection. “Misdirection” is a design element that focuses a consumer’s attention on one thing to distract from another.” . . . Amazon also uses Misdirection in its Iliad Flow by presenting consumers with asymmetric choices that make it easier to abandon an attempted Prime cancellation than to complete it. In particular, Amazon uses attractors such as animation, a contrasting color blue, and text to draw consumers’ attention to “Remind me later” and “Keep my benefits” options rather than “Continue to Cancel.” Amazon further misdirects consumers who have entered the Iliad Flow by presenting visually appealing options to perform acts other than cancel, such as exploring the benefits of the subscription service (thereby exiting the Iliad Flow).”

Thank you very much for your consideration of the requests above. The efforts undertaken by you and your staff with these regulations will help protect the Commonwealth’s residents.

Sincerely,

Senator Michael O. Moore

Second Worcester District