This week, Federal Trade Commission Chair Lina Khan gave testimony at an oversight hearing before the House Judiciary Committee. In her testimony, she specifically referred to a concept known as “dark patterns” as well as the specific allegations the Federal Trade Commission (FTC) is currently litigating that Amazon engaged in these practices.

The FTC filed a complaint against Amazon, accusing the tech company of enrolling customers in their Prime delivery program without appropriate warning and then ‘sabotaging’ attempts by these same consumers to cancel their membership. Negating the high consumer satisfaction rate of the company– this move highlights the departure of concern within the FTC of the average American consumer.

The FTC specifically alleges that Amazon executives intentionally slowed the process to approve improvements to how customers cancel their Prime memberships, out of apparent fears that it might affect their bottom line. In response to claims by the FTC, Amazon spokesperson Tim Doyle said, “The FTC’s claims are false on the facts and the law.” He later added, “The truth is that customers love Prime, and by design, we make it clear and simple for customers to both sign up for or cancel their Prime membership.”

Mr. Doyle’s claims are supported by facts, a recent ACI survey suggested that 97% of respondents said they were either somewhat satisfied or very satisfied with Amazon Prime services, citing convenience, free shipping, and price, among the reasons. Adding further, 52% of respondents either opposed or strongly opposed “breaking up Amazon into smaller companies” and 62% opposed legislation or regulations that “could eliminate” their Prime services. These results were consistent across political parties.

Prime satisfies a vast number of customers who want to purchase cheap products and have them delivered at a pace previously unthinkable. Suggestions by the FTC argue that despite consumer preferences, Amazon is predatorily “trapping” and “duping” customers into staying with the service. The specific accusation by the FTC goes to the practices employed by Amazon to retain customers in the program, known as “dark patterns.”

This term is used to describe design features that “dupe” customers into agreeing to pay for services that they would have otherwise not purchased. The problem with the term dark patterns is it is difficult to discern what exactly constitutes as harmful. Some practices such as disguising a download link in a “close” button is clearly problematic. However, other practices such as requiring customers to click “I don’t want to save money” to turn down a service is less clear. 

The complaints we are seeing now against Amazon have been a long time coming. In 2017, FTC Chair Lina Khan, wrote a Yale Law Journal Review article which was staged as a retort to Robert Bork’s book The Antitrust Paradox. Judge Bork’s book suggests that antitrust action should only be taken in situations where the Consumer Welfare Standard (CWS) test is jeopardized. The CWS is used to describe the legal perspective, that posits actions by companies are not considered anti-competitive or illegal unless they are shown to harm consumers. 

Under Lina Khan’s leadership, the CWS is not being used as an antitrust litmus test. Effectively, creating an environment in which the government picks winners, based on favorability to the FTC or administration.

By singling out Amazon on subjective and arbitrary complaints, the FTC is seeking to haphazardly pick winners, jeopardizing innovation, growth, jobs, and our free-market ideals that have made America so successful. Conditions that if continued would undoubtedly lead more companies to conclude that America is no longer the place to do business. 

Ben Dennehy is the Communications Manager at the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit us at www.TheAmericanConsumer.Org or follow us on Twitter @ConsumerPal.