Today TechFreedom and the International Center for Law & Economics filed comments with the Federal Trade Commission (FTC) in response to the commission’s workshop, Big Data: A Tool for Inclusion or Exclusion?
As noted in the comments, the workshop “failed to provide the building blocks needed to answer the basic legal questions of what the FTC could, or should, do about concerns raised around Big Data with its existing legal authority, where legal gaps might exist, what Congress should do (if anything), or what self-regulatory or multistakeholder processes could do to fill the gaps in ways that would actually make consumers better off.”
The workshop suffered from a severely partisan approach to issue. Only the Democratic commissioners spoke at the event, while the Republican commissioners and their staff attorneys appear to not have been invited at all. The first panel also featured a staffer from the office of Senator Jay Rockefeller, who has consistently demonstrated unwillingness to cooperate across the aisle. In contrast, no Republican staffers participated in the discussion.
Further, the workshop lacked qualified experts on discrimination. The FTC’s Division of Financial Practices, which is responsible for enforcing a wide range of laws governing discrimination such as the Equal Credit Opportunity Act, was excluded from the panels, as was the Department of Justice’s Civil Rights Division, one of the most notable federal anti-discrimination agencies.
Additionally, the panelists failed to examine a number of other important issues in connection with big data. The discussion only briefly addressed the First Amendment implications of regulating marketing based on big data concerns and ignored entirely the economic tradeoffs that would result from use of big data.
Had the FTC brought in speakers with a greater level of political diversity, particularly speakers with backgrounds in anti-discrimination law enforcement and economics, then the workshop may have produced a robust discussion on the possible regulatory solutions raised by the challenges of big data and the consequences of those solutions. Instead, the Commission wasted its resources on a politically charged workshop that failed to consider many of the most important legal and economic questions raised by the growth of big data.