FTC to Examine Effects of Big Data on Low Income and Underserved Consumers at September Workshop #00042

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Peter Swire
Georgia Institute of Technology & Future of Privacy Forum
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FTC to Examine Effects of Big Data on Low Income and Underserved Consumers at September Workshop
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Attached please find the paper "Lessons from Fair Lending for Fair Marketing and Big Data." This White Paper is submitted in connection with Peter Swire’s participation at the Federal Trade Commission’s September 15, 2014 event on “Big Data: A Tool for Inclusion or Exclusion?”Issues of potential discrimination in online marketing have recently attracted increasing attention, notably in the April 2014 White House Report on Big Data and Privacy. To date, however, the public debate has not included a systematic analysis of the closest legal precedents – fair lending law under the Equal Credit Opportunity Act (ECOA) and other statutes. This White Paper, drawing on my previous scholarship in the fair lending area,1 explains lessons from fair lending law for what I call “fair marketing” – the application of anti-discrimination and fair lending principles to online advertising and the Big Data analytics that support much of online advertising. This White Paper applies fair lending law in two principle ways: 1. Sectoral legislation applies to some online marketing, much as sectoral legislation for privacy exists in areas such as HIPAA, the Gramm-Leach- Bliley Act, and the Children’s Online Privacy Protection Act. Anti- discrimination law applies to marketing for lending, housing, and employment, under the ECOA, the Fair Housing Act, and Title VII of the Civil Rights Act of 1964. An important legal topic going forward will be whether and in what ways these sectoral anti-discrimination laws apply to entities in the online advertising ecosystem who play a role in advertising for lending, housing, and employment as well as other sectors. 2. Over two decades of fair lending enforcement and regulatory guidance provide numerous useful insights for advertising in sectors other than lending, housing, and employment, where sectoral statutes do not currently exist. Financial institutions have extensive and long-developed programs for fair lending compliance. Instead of fair marketing issues being entirely novel, these compliance programs provide well-established mechanisms for addressing possible discrimination in marketing.