in this talk we present an analysis of
consent banners through the interaction
criticism approach
with the goal of bringing together the
language and conceptual landscape of hci
design privacy and data protection and
legal research communities in relation
to the design and experience of consent
banners the language of dark patterns is
increasingly used to argue across many
domains of interest
including legal and design perspectives
pointing towards the limitations of
policy
and the need to engage in
transdisciplinary scholarship across
disciplinary boundaries
this paper was written over a period of
almost nine months by a research team
with expertise in design
eu data protection law and web privacy
measurement
using dark patterns as a connecting
framework to bridge our disciplinary
expertise
we sought to find a common ground while
also seeking to inform disciplinary
advances in each of our respective areas
building on our diverse disciplinary
expertise we reviewed recordings from
over 50 sites
and extensively analyzed the design and
user's means of interaction with the
consent banners on these websites
building a consent task flow with four
stages alongside use of bardzell's
interaction criticism approach
we used interaction criticism to explore
the contributions of design scholarship
legal jurisprudence and discussions of
ethics and values from both academic and
practitioner perspectives
we iteratively and reflexively built out
an argument from each of four
perspectives
seeking to identify salient design
principles potential social expectations
or means of describing intent
and legal or policy guidance through
which the consent design choices
could be framed in synthesizing
perspectives from design
law and computer science we described a
consent task flow
with four different types of
manipulation which we will briefly
illustrate
in the paper we align these manipulative
experiences alongside consent
requirements
and dark pattern strategies to
illustrate tensions and opportunities in
relation to law
design user experience and social impact
a consent wall takes the form of a
dialogue or pop over displayed on part
of
a page but may also completely block the
page preventing any action by the user
until a choice has been made
this design choice allows a user to
select between acceptance and refusal
however the concrete use of the website
is blocked until a choice has been made
this design choice presents a tension
between interactive separation of user
activities
strategies meant to limit user
interaction prior to completing the
consenting process
requirements that mandate that
consenting precedes use
and the various impacts of both a burden
of care on the part of the designer
and the freely given nature of the
consent process itself
a tracking wall is an instance of a
consent wall blocking
access to the website until the user
makes their choice and giving the user
only one option
to consent and accept any terms offered
by the site without any potential to
refuse
similar to the consent wall this design
choice increases the tension between
interactive separation of user
activities and the requirement to allow
the user to freely give their consent
in addition the lack of an ability to
reject consent
alongside the inability to use the web
resource without making this forced
choice
represents an additional barrier to the
user's ability to make a specific and
informed
decision with reduced service
a website offers reduced functionality
based on user selected configuration
options
this design choice presents tensions
along separation of access to content
based on
the consent choice of the user the
economic realities of producing and
providing access to content
requirements for consent to be freely
given with outcomes that are transparent
to the user
and increasing social expectations that
web content be accessible
without cost or obligation most
instances of this design choice are
likely to fail
either by limiting consent choices
upfront or by using manipulative
language to
lull the user into accepting a choice
with different consequences than they
may
expect other configuration barriers
manipulate the user towards accepting
consent the notion of configuration is
central to the ability of the user to
make an unambiguous and specific choice
about how their data can be collected
and used
however so many of the visual and
interactive elements relate and interact
in ways that resist the ability of
policy to
specify allowable and non-allowable
design choices using techniques such as
interface interference and sneaking
as we have described the inclusion of
dark patterns and consent banners is an
in-dimensional phenomenon
which includes dimensions of time
interaction
design psychology and law demanding a
holistic analysis
from many perspectives the deeper we
look into consent
mechanisms and the matter of user choice
the more we understand the need to
combine the perspectives of many
different fields
as part of a transdisciplinary dialogue
in particular we provide an initial
framing for bi-directional design and
legal argumentation
evaluating and interrogating designed
experiences using the language of law
and policy
while also using a user experience or
user interface as a means of addressing
gaps or opportunities
for more precision in existing legal or
policy frameworks
in conclusion we acknowledge the support
of several organizations that have
funded this work and we thank you for
listening