The Commission's remedial authority to deter unfair and deceptive conduct in privacy and data security matters #FTC-2018-0052-D-0025

Submission Number:
FTC-2018-0052-D-0025
Commenter:
Dennis Hirsch
State:
Ohio
Initiative Name:
The Commission's remedial authority to deter unfair and deceptive conduct in privacy and data security matters
Predictive analytics, machine learning and artificial intelligence are growing dramatically in scope and importance. These technologies produce many significant benefits. But they can also cause privacy, fairness and manipulation harms. In order to achieve the full benefits of advanced analytics, society must find an effective way to minimize these potential harms. The FTC's Section 5 unfairness authority is well-suited to this task. The Commission could employ it to distinguish between advanced analytics practices that are socially beneficial, and those that are harmful; between those that are fair, and those that are unfair. Recent judicial decisions interpreting the scope of the FTC's Section 5 unfairness authority suggest that the Commission could use it in this way. Were it to do so, the FTC would set important rules of the road for advanced analytics -- rules that are much needed if this technology is to continue to grow in the decades to come. I further explain these points in the attached article, "That's Unfair! Or is it? Big Data, Discrimination, and the FTC's Unfairness Authority," 103 Kentucky Law Journal 345 (2015).