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DraftKings is using AI to behaviorally target chronic gamblers

570 points · 432 comments · paimapi

  1. awbvious · · focus · HN ↗
    Another perfect example of why we don't need new laws, we "simply" need to enforce them. Supposedly, Dark Patterns are illegal. If the corporation had to tell you how they use your data, would you let them?

    DraftKings: Hi we're going to give you extra incentives! User: Hmm, sounds like I might like that. How do I get them? DraftKings: You have to lose constantly! And then when you start winning, we take them away! You like that, don't you? User: No.

    Dark Pattern. No new rules needed. "Just" enforcement.

    1. aesthesia · · focus · HN ↗
      I agree this is a bad thing, but what's the legal definition of "dark pattern" that covers this behavior?
      1. awbvious · · focus · HN ↗
        <a href="https:&#x2F;&#x2F;www.ftc.gov&#x2F;system&#x2F;files&#x2F;ftc_gov&#x2F;pdf&#x2F;P214800%20Dark%20Patterns%20Report%209.14.2022%20-%20FINAL.pdf" rel="nofollow">https:&#x2F;&#x2F;www.ftc.gov&#x2F;system&#x2F;files&#x2F;ftc_gov&#x2F;pdf&#x2F;P214800%20Dark%...

        &quot;Coined in 2010 by user design specialist Harry Brignull, the term &#x27;dark patterns&#x27; has been used to describe design practices that trick or manipulate users into making choices they would not otherwise have made and that may cause harm.&quot;

        Not sure if this reference to a definition is the same thing as saying it&#x27;s the legal definition, but this is at least in a document as &#x2F;a&#x2F; definition on the Federal Trade Commission&#x27;s website.

        Are you asking me to see how this mechanism applies to this definition?

        1. aesthesia · · focus · HN ↗
          My question was more like this: There is some statutory basis for enforcement. If &quot;dark patterns&quot; is itself a basis for enforcement, there&#x27;s some legal definition of it, and I&#x27;m curious to know how that&#x27;s operationalized, since the definition given here doesn&#x27;t seem precise enough to be legally actionable.

          At the end of the FTC doc, there&#x27;s this statement:

          &gt; Firms that nonetheless employ dark patterns, take notice: where these practices violate the FTC Act, ROSCA, the TSR, TILA, CAN-SPAM, COPPA, ECOA, or other statutes and regulations enforced by the FTC, we will continue to take action.

          This implies that dark patterns themselves are not a cause for action and some other specific law or regulation needs to be violated in order for the FTC to act.

          1. awbvious · · focus · HN ↗
            That&#x27;s an excellent point.

            If you haven&#x27;t read Cory Doctorow&#x27;s Ens*tification, then I highly recommend it. The EFF and Doctorow are of the opinion that when something is too broad, it&#x27;s hard to enforce.

            The EFF&#x27;s &quot;better&quot; solution is to just cut data brokers off at the knees. Don&#x27;t let them get the collect it, and they can&#x27;t use it against you. And I agree we should pursue that approach &#x2F;as well&#x2F;. But Doctorow also makes a great point that you pursue from multiple angles at once tackling ens*tification (and monopolies). So while he would want something actionable through specificity (one example, make it required that you can offramp from social media platforms your contacts and messages, thus reducing switching costs), I doubt he&#x27;d be against broader approaches as well.

            The FTC saying or even implying that they will go after bad actors that break multiple laws&#x2F;regulations does not mean they have to go after only those, or only prioritize those. I think this is probably a clear example of a dark pattern, a possibly predatory one at that, so it could be worth pursuing by the FTC (you know, depending on the political climate--I, for one, hope for the wrath of Khan, the sequel we need if not deserve). Especially since this case &#x2F;supposedly&#x2F; only involves data harvested within the system and not data brokers. It shows how dangerous and harmful data collection and use can be.

            I don&#x27;t think people should just throw up their hands though and give up, especially as there is no language that says explicitly that dark patterns also need to break other laws&#x2F;regulations. Dark patterns are, possibly, a form of fraud, and fraud has levels of severity and mitigation. Approached appropriately, from that perspective, I do not think that first more laws&#x2F;regulations need to be broken.

            But, yes, that is an excellent point.

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