Free Press' Benavidez: The Proposed FTC Privacy Rulemaking Should Address Discriminatory Data Practices That Harm Disadvantaged Communities

WASHINGTON — On Thursday, the Federal Trade Commission hosted a forum on its Advance Notice of Proposed Rulemaking (“ANPR”) on commercial surveillance and data security practices. The agency released the ANPR last month with the aim of safeguarding consumer privacy and creating protections against algorithmic decision-making that results in unlawful discrimination. Thursday's forum, which is an initial step in building a formal agency record for potential regulations, serves as a public workshop for those seeking to learn more about the issue and about filing comments in the proceeding.

Late last year, Free Press and 45 civil-rights, media-democracy and consumer-advocacy groups called on FTC Chairwoman Lina Khan to initiate such a rulemaking to promote civil rights and set guardrails against the abuse of data online. 

What follows is the presentation by Free Press Senior Counsel and Director of Digital Justice and Civil Rights Nora Benavidez, as prepared for delivery during the forum:

Thank you Chairwoman Khan, Commissioners, and the entire FTC staff for hosting this forum. I’m Nora Benavidez, Senior Counsel at the nonprofit Free Press, where we work on media and technology reforms to advance a more equitable society. 

Data about what we do, with whom and where, is in the hands of often unscrupulous tech companies, data brokers, and other private entities. Many of these companies engage in a widespread pattern of unfair and deceptive practices embedded throughout society, especially harmful to historically disadvantaged communities.

In the health-care realm: Researchers from the University of California and University of Chicago found an algorithm widely used in US hospitals to allocate healthcare to patients systematically discriminated against Black people, who were less likely than equally sick white counterparts to be referred to hospitals. 

In the housing realm: Meta recently settled a lawsuit with the Department of Justice regarding its housing advertising scheme, admitting that it engaged in discriminatory practices that meant Black users saw fewer or no ads for affected housing on Facebook.

In the voting context, researchers from the University of Texas-Austin found that Black, Native American, and Latino users were subject to sophisticated microtargeting efforts ahead of the 2020 election, targeted with deceptive content on social media platforms about the voting process. 

How data is collected, processed, retained, and sold has a direct impact on civil rights and economic opportunities. These issues fall squarely within the FTC’s authority, bolstered by its history of advising on complex privacy issues.

Free Press has worked closely with dozens of consumer- and civil-rights groups over the last year to sound the alarm on digital harms affecting communities of color, children, non-English-speaking individuals, and other members of the general public. 

Those groups overwhelmingly support this rulemaking. We are eager to help build the record of harms in this proceeding to advance FTC rules that protect consumers.