Dark Patterns in Cookie Banners: The Overlooked Compliance Risk Facing U.S. Businesses
By Ramyar Daneshgar
Security Engineer & Legal Policy Researcher at CybersecurityAttorney.com
Disclaimer: This article is for educational purposes only and does not constitute legal advice.
What Are Dark Patterns in Cookie Banners?
Dark patterns are deceptive or manipulative user interface (UI) and user experience (UX) design choices that interfere with a user’s ability to make informed, voluntary decisions. Originally studied in consumer psychology and behavioral economics, these tactics are now under scrutiny in privacy law—particularly in the context of digital consent mechanisms such as cookie banners.
In privacy compliance, valid consent must be informed, freely given, specific, and unambiguous. Dark patterns undermine these standards by nudging users toward one outcome—typically to "Accept All" cookies—while obscuring or discouraging alternatives.
Common Dark Patterns in Cookie Banners
| Dark Pattern | What to Look For |
|---|---|
| 1. Hiding or Obscuring Opt-Out Options | “Reject All” or “Manage Preferences” is buried in submenus or hard to find. |
| 2. Pre-Selected Consent Options | Cookie categories (e.g., marketing, analytics) are turned on by default—user hasn’t clearly agreed. |
| 3. Ambiguous or Misleading Language | Vague terms like “Enhance My Experience” or undefined “Functional Cookies” confuse users. |
| 4. Asymmetric Button Design | “Accept All” is bold, large, or colorful; “Decline” is small, gray, or hidden. |
| 5. Guilt-Tripping or Emotionally Manipulative Language | Language implies harm or selfishness if the user declines cookies (e.g., “Support us by accepting”). |
| 6. Confusing or Incomplete Choices | No clear “Reject All” option; only partial controls or unclear categories are presented. |
Role of California Consumer Privacy Act (CCPA) & California Privacy Rights Act (CPRA):
California is currently the most aggressive U.S. jurisdiction when it comes to regulating how companies collect and manage personal data—particularly through deceptive design practices known as dark patterns.
The CCPA, effective since 2020, gives California residents specific rights over their personal information, including the right to know what data is being collected, the right to delete that data, and the right to opt out of its sale or sharing.
The CPRA, which amended and expanded the CCPA and became enforceable in 2023, enhances those protections and created the California Privacy Protection Agency (CPPA) to oversee enforcement.
What Do They Say About Dark Patterns?
The CPRA explicitly prohibits the use of dark patterns—interface designs that are intended to mislead, coerce, or manipulate users into providing consent. This includes tactics such as:
- Making the “Accept All” button more prominent than the “Decline” option
- Hiding privacy controls behind multiple steps or confusing menus
- Using emotionally manipulative language to pressure users into agreeing
Under the CPRA, any consent obtained through the use of dark patterns is not considered valid. This means that collecting or processing data based on such consent may be unlawful.
What Is “Symmetry of Choice”?
The California Privacy Protection Agency (CPPA) has issued official guidance emphasizing the principle of symmetry of choice. This means users must be given equal and balanced options to either accept or reject data collection. For example:
- Both “Accept” and “Decline” buttons should be equally visible and easy to select
- The process to opt out must be as simple as opting in
- Consent language must be clear and neutral, not misleading or biased
Why This Matters
Failing to comply with these requirements can lead to:
- Regulatory enforcement by the CPPA, including audits and investigations
- Civil penalties of up to $2,500 per violation, or $7,500 for intentional violations
- Exposure to consumer lawsuits, especially in the event of a data breach or misuse of personal informatioN.
Conclusion: Risk Mitigation Guide - What You Should Watch For
| Focus Area | What to Look For |
|---|---|
| 1. Cookie Banner Design | - Is "Reject All" easy to find, not hidden?- Is "Accept" more visually prominent?- Are cookies pre-selected?- Is language vague or misleading?- Is opting out harder than opting in? |
| 2. Data Sharing/Selling Practices | - Are tools like Google Analytics or Meta Pixel collecting personal data?- Is that data sold/shared under CPRA?- Is there a clear “Do Not Sell” link?- Are cookie choices granular and explained?- Are third parties clearly disclosed? |
| 3. GPC (Global Privacy Control) | - Does the site detect GPC signals from browsers?- Does GPC automatically turn off tracking?- Is the behavior documented in dev or CMP settings?- Do devs understand and implement GPC properly? |
| 4. Internal Processes & Training | - Are UX/marketing teams designing without legal input?- Is consent design reviewed and documented?- Is there a standard review process for updates?- Are staff trained on dark patterns and compliance? |
| 5. Litigation & Enforcement Prep | - Are consent logs and CMP records maintained?- Can the business map scripts to data use?- Does the privacy policy match real behavior?- Can they show valid consent if audited?- Has legal done a privileged review of third-party tools? |
Simplify Compliance Before It Becomes a Liability
Regulators aren’t waiting—and neither should you. Whether you’re advising clients or managing your own firm, compliance with laws like the CPRA, FTC Safeguards Rule, HIPAA, or SOC 2 requires more than a privacy policy and a cookie banner.
That’s where Tremly comes in.
Tremly automates key compliance tasks, including:
- Policy Generation & Management – Build, deploy, and track privacy and cybersecurity policies that meet legal standards.
- Security Awareness Training – Keep staff compliant with phishing simulations, insider threat training, and mandatory coursework.
- Consent & Cookie Tracking – Ensure valid consent collection and documentation across digital properties—no more legal guesswork.
- Vendor Risk Monitoring – Map third-party data processors and reduce legal exposure.
- Audit-Ready Dashboards – Generate compliance reports for clients, regulators, or internal audits with one click.
Whether you’re managing a firm or advising clients in regulated industries, Tremly gives you the tools to stay compliant without hiring a full compliance team.
👉 Start your compliance journey with Tremly →
Disclosure: CybersecurityAttorney.com may earn a small commission — at no extra cost to you. We only recommend tools we trust.
Dark Patterns Are Costing Companies Millions. Don’t Let Yours Be Next.
CybersecurityAttorney+ gives privacy professionals insights, case law, and audit tools they need to stay ahead of CPRA, GDPR, and FTC crackdowns.
Inside, you’ll get:
- Deep-dive breach case studies with legal + technical analysis
- Proven strategies to stay ahead of CCPA, CPRA, GDPR, and global regulators
- Frameworks and tools trusted by top cybersecurity and privacy law professionals
- Exclusive enforcement alerts and litigation briefings you won’t find anywhere else
Don’t get caught off guard. Know what regulators are looking for.