The FTC’s Surprisingly Weak Case Against Amazon

Way back in 2005 I wrote about the launch of Amazon Prime, talking about the trade offs of joining this shipping club" as I called it then. If you look at that post now, it has nearly 600 comments. However, the first comment didn't even get added until over a year after I posted the story. When I first wrote about it, it was such a non-story that we got zero comments on it (admittedly, Techdirt was a bit smaller then and a lot of our stories at the time got few, if any, comments).

So why does it now have nearly 600? Because a year later someone commented, complaining about how they had somehow accidentally signed up for Amazon Prime, and were furious that they had been charged $79. And, then, somehow, that post must have shown up in Google searches for users angry that they had accidentally signed up for Prime without knowing it. For the next ten years or so, when people were angry about having accidentally signed up for Prime, many of them would... come to a single 2005 Techdirt post to bitch about it in the comments.

It was a bit weird.

But, either way, it gave me some level of awareness that some people have been tricked" into signing up for Amazon Prime.

So, when the FTC recently sued Amazon for tricking users into signing up for Amazon Prime and making it hard to cancel, I figured they must have some pretty good evidence of bad practices. Coupled with the fact that FTC boss Lina Khan built her reputation largely on the back of a paper arguing that the FTC needed to take down Amazon, and people have been perplexed that the FTC under her leadership had not gone after Amazon, it seemed natural to assume that the eventual case against the company would be really solid. Also, while some of the earliest cases her FTC has filed have been incredibly weak, some of the more recent filings (including against Google) have been much stronger, actually zeroing in on what appear to be legitimate issues. So, again, I expected the case against Amazon to be fairly strong.

But then I read it. And... I'm confused.

There are a few things in the complaint that narratively sound bad - like Amazon employees referring to the cancelation setup as Iliad" - but the details really seem like extremely nitpicky about UI decisions, many of which are defensible.

Now, there's a ton of stuff redacted in the complaint, so perhaps under those blacked out lines there is stronger evidence of truly nefarious behavior. But, what's shown really just doesn't seem that crazy.

I should be clear, by the way, I'm not a Prime customer, and have magically avoided getting tricked into using Prime for pretty much my entire time using Amazon. I have (on multiple occasions) done free trials of Prime, but never felt unwittingly sucked into paying for it when those trials were over. I might be more tech savvy than your average Amazon shopper, so I'm not saying that my experience applies to everyone, but at the very least, it seems entirely possible to not get suckered into paying for Prime if you don't want it. I know that because I've done it.

Anyway, part of what surprised me is that the complaint basically admits that Amazon is pretty upfront about the deal, saying that after a free trial you have to pay a monthly fee:

A lot of what the FTC is complaining about is that the small text part of the deal is, well, in small text. But... that's been the way things have kinda always worked? Is small text now against the law?

Could Amazon be even more upfront? Sure. But would it really change that much?

Given the number of sneaky hidden fees we see from telcos and broadband providers and tons of other companies, it would seem like that would be a much bigger and better target for this type of action, rather than Amazon tells you the details, but puts it in smaller text below the offer."

As Elizabeth Nolan Brown points out in an analysis of the case, it relies on claims that Amazon's design uses dark patterns." But dark patterns" basically is a term that is being used when someone doesn't particularly like the way a website is setup. The complaint talks about small print and interstitials and standard upsell offers. Are some of those annoying? Sure. But, annoying isn't illegal, nor should it be.

Again, with so much of the complaint blacked out, I have to assume there's something more serious behind the redaction bars. Because, even though I was sympathetic to the idea that this could be a good case, and that Amazon was up to no good, what's in the unredacted portion of the lawsuit just seems like gee, we don't like how Amazon tries to upsell Prime." But not liking something doesn't mean it violates the law.