Tech
The Hidden Traps of ‘I Agree’
On October 2, an appeals court delivered a harsh verdict: a New Jersey couple, gravely injured in a severe car crash caused by an Uber driver, couldn’t sue the company. Why? The couple’s daughter had clicked “I agree” to the Terms and Conditions on the Uber Eats app, unknowingly waiving their right to sue through an arbitration clause buried in the text.
Contracts are everywhere, yet as illustrated by this case, they can carry unexpected and serious consequences for consumers. These contracts, called “clickwraps,” require users to click an “I agree” box after being presented with a wall of terms and conditions, often replacing the traditional, more formal act of signing on paper. Though efficient for companies, this widespread reliance on clickwrap agreements has shifted significant power away from consumers, arguably categorizing them as a form of dark patterns.
The Federal Trade Commission (FTC) defines dark patterns as tactics that “manipulate consumers into buying products or services or giving up their privacy” in ways that may violate consumer rights. Such designs lure consumers into commitments they might not fully understand, often to their detriment.
In 2022, the FTC sued Amazon for “manipulative, coercive, or deceptive user-interface designs known as ‘dark patterns,’” which they claim tricked users into enrolling in automatically renewing Prime subscriptions. According to the suit, Amazon’s checkout made it notably harder to purchase without subscribing to Prime. Such designs rely on the fact that consumers rarely read the fine print. A 2017 Deloitte survey of 2,000 U.S. consumers revealed that 91% of people accepted terms and conditions without ever reading them. When ordering food, few will pause to scrutinize the details. Companies exploit this tendency.
Take the Uber Eats app sign-up process: it prominently displays a message urging users to “Accept Uber’s Terms & Review Privacy Notice.” Beneath it, hyperlinked in small print, are the “Terms of Use” and “Privacy Notice.” Below that, a bolded checkbox simply says, “I agree.” This design raises two issues.
First, “Terms of Use” barely hints at the presence of an arbitration agreement; few consumers, even if they pause to consider the terms, would think of this. Second, the bolded “I agree” draws attention away from critical clauses, such as those that waive legal rights.
A 2014 study in the Stanford Law Review found that, generally, users could recognize the implications of simplified terms—if those terms were made clear. Facebook’s terms of service, much like Uber’s and other e-commerce platforms, is one example of relatively simple language. Therefore, presenting a concise version of these terms directly above a checkbox would likely aid user understanding.
Consumers, however, are often unaware of their options. The New Jersey family could have opted for a different service, such as DoorDash, or even a local pizza delivery. A conspicuous summary of an app’s terms might change consumers’ minds before they proceed, alerting them to the legal risks they might be accepting.
In March 2023, the FTC proposed a rule requiring companies to make enrollment cancellations as simple as the initial sign-up. But this doesn’t address how deceptive interface designs extract users’ consent to more hidden provisions. Deceptive dark patterns on e-commerce sites and apps remain primarily a front-end issue and should be treated as such.
To counter this, legal experts and the FTC should explore solutions that preemptively address the problem. One possible approach would require companies to display key terms in plain language before presenting the “I agree” button. Terms and conditions could still be hyperlinked, but an initial summary should feature prominently, preferably on a separate screen before the final “I agree” confirmation. Such summaries would highlight essential concerns, such as arbitration clauses and data collection practices.
If companies displayed terms in this manner, consumers would better understand what they’re consenting to, likely adjusting their behavior accordingly. Moreover, if one company leads in adopting this transparency, others may follow. The FTC’s current post-hoc regulatory approach—deterring bad practices through penalties—doesn’t provide adequate consumer protection. A regulation requiring clear, up-front information would not only empower consumers but would also promote transparency in digital business practices.
Still, the complexity of clickwrap agreements and boilerplate clauses may challenge even the most well-intentioned efforts to protect consumers. Nonetheless, tackling these dark patterns is essential in an era where a single “I agree” can hold weighty, unforeseen consequences.