Notice2021-25999
Privacy, Equity, and Civil Rights Listening Sessions
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Published
November 30, 2021
Issuing agencies
Commerce DepartmentNational Telecommunications and Information Administration
Abstract
The National Telecommunications and Information Administration (NTIA) will convene three virtual Listening Sessions about issues and potential solutions at the intersection of privacy, equity, and civil rights. The sessions will help to provide the data for a report on the ways in which commercial data flows of personal information can lead to disparate impact and outcomes for marginalized or disadvantaged communities.
Full Text
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<title>Federal Register, Volume 86 Issue 227 (Tuesday, November 30, 2021)</title>
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[Federal Register Volume 86, Number 227 (Tuesday, November 30, 2021)]
[Notices]
[Pages 67925-67927]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-25999]
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DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
Privacy, Equity, and Civil Rights Listening Sessions
AGENCY: National Telecommunications and Information Administration,
U.S. Department of Commerce.
ACTION: Notice of open meeting.
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SUMMARY: The National Telecommunications and Information Administration
(NTIA) will convene three virtual Listening Sessions about issues and
potential solutions at the intersection of privacy, equity, and civil
rights. The sessions will help to provide the data for a report on the
ways in which commercial data flows of personal information can lead to
disparate impact and outcomes for marginalized or disadvantaged
communities.
DATES: The meetings will be held on December 14, 15, and 16, 2021, from
1:00 p.m. to 3:30 p.m., Eastern Standard Time.
ADDRESSES: The meetings will be held virtually, with online slide share
and dial-in information to be posted at <a href="https://www.ntia.gov/">https://www.ntia.gov/</a>.
FOR FURTHER INFORMATION CONTACT: Travis Hall, National
Telecommunications and Information Administration, U.S. Department of
Commerce, 1401 Constitution Avenue NW, Room 4725, Washington, DC 20230;
telephone: (202) 482-3522; email: <a href="/cdn-cgi/l/email-protection#e3978b828f8fa38d978a82cd848c95"><span class="__cf_email__" data-cfemail="1e6a767f72725e706a777f30797168">[email protected]</span></a>. Please direct media
inquiries to NTIA's Office of Public Affairs: (202) 482-7002; email:
<a href="/cdn-cgi/l/email-protection#6b1b190e18182b051f020a450c041d"><span class="__cf_email__" data-cfemail="bececcdbcdcdfed0cad7df90d9d1c8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background and Authority: The National Telecommunications and
Information Administration (NTIA) is the President's principal advisor
on telecommunications and information policy issues.\1\ In this role,
NTIA studies and develops policy advice about the impact of technology
and the internet on privacy. This includes examining the extent to
which technology implementations, business models, and related data
processing are adequately addressed by the U.S.'s current privacy
protection framework.\2\ Importantly, NTIA has long acknowledged that
privacy is a matter of contextual data flow and use rather than simply
being a question of publicity.\3\ Increasingly,
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scholarship has shown that marginalized or underserved communities are
especially in need of robust privacy protections.\4\ These studies have
shown that not only are these communities often materially
disadvantaged with regards to the marginal effort required to
adequately manage privacy controls, they are often at increased risk of
suffering harm from losses of privacy or misuse of collected data.
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\1\ See 47 U.S.C. 902(b)(2)(D), (H).
\2\ NTIA Blog, ``NTIA Releases Comments on a Proposed Approach
to Protecting Consumer Privacy'' (Nov. 13, 2018), <a href="https://www.ntia.doc.gov/press-release/2018/ntia-releases-comments-proposed-approach-protecting-consumer-privacy">https://www.ntia.doc.gov/press-release/2018/ntia-releases-comments-proposed-approach-protecting-consumer-privacy</a> (commenters generally
emphasized the need for changes to the U.S. privacy framework); see
also, GAO, Consumer Privacy: Changes to Legal Framework Needed To
Address Gaps (June 2019), <a href="https://www.gao.gov/products/gao-19-621t">https://www.gao.gov/products/gao-19-621t</a>
(same); Congressional Research Service, Data Protection Law: An
Overview (March 25, 2019), <a href="https://fas.org/sgp/crs/misc/R45631.pdf">https://fas.org/sgp/crs/misc/R45631.pdf</a>
(``Recent high-profile data breaches and other concerns about how
third parties protect the privacy of individuals in the digital age
have raised national concerns over legal protections of Americans'
electronic data.''); Thorin Klosowski, The State of Consumer Privacy
Laws In The US (And Why It Matters), Wirecutter (Sept. 6, 2021),
<a href="https://www.nytimes.com/wirecutter/blog/state-of-privacy-laws-in-us/">https://www.nytimes.com/wirecutter/blog/state-of-privacy-laws-in-us/</a>
(describing consumer privacy laws in the United States and providing
legal experts' characterizations of their inadequacy); Press
Release, ``Wicker, Blackburn Introduce Federal Privacy Legislation''
(July 28, 2021), <a href="https://www.commerce.senate.gov/2021/7/wicker-blackburn-introduce-federal-data-privacy-legislation">https://www.commerce.senate.gov/2021/7/wicker-blackburn-introduce-federal-data-privacy-legislation</a> (``the need for
federal privacy legislation is imperative''); Business Roundtable
Letter to Senate Commerce Committee Urging Passage of a Federal
Consumer Data Privacy Law (Oct. 4, 2021), <a href="https://www.businessroundtable.org/business-roundtable-letter-to-senate-commerce-committee-urging-passage-of-a-federal-consumer-data-privacy-law">https://www.businessroundtable.org/business-roundtable-letter-to-senate-commerce-committee-urging-passage-of-a-federal-consumer-data-privacy-law</a>.
\3\ See Internet Policy Task Force, Commercial Data Privacy and
Innovation in the Internet Economy: A Dynamic Policy 18 (Dec. 16,
2010), <a href="https://www.ntia.doc.gov/files/ntia/publications/iptf_privacy_greenpaper_12162010.pdf">https://www.ntia.doc.gov/files/ntia/publications/iptf_privacy_greenpaper_12162010.pdf</a>; White House, Consumer Data
Privacy in a Networked World: A Framework for Protecting Privacy and
Promoting Innovation in the Global Digital Economy, (Feb. 23, 2012),
16; see also: Helen Nissenbaum, Privacy in Context, (Nov. 2009).
NTIA considers problematic uses and problematic collection to both
fall under the umbrella of a ``privacy harm,'' an idea that is well-
established in the literature. (<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3782222">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3782222</a>, 21-22 (``Privacy harms are highly
contextual, with the harm depending upon how the data is used, what
data is involved, and also how the data might be combined with other
data'')).
\4\ Danielle Keats-Citron, Cyber Civil Rights, 89 Boston U. L.
Rev. 61 (2008); Khiara Bridges, The Poverty of Privacy Rights,
Stanford University Press (2017); Mary Madden, Michele Gilman, Karen
Levy & Alice Marwick, Privacy, Poverty, and Big Data: A Matrix Of
Vulnerabilities For Poor Americans, 95 Wash. U. L. Rev. 53 (2017);
Alvaro Bedoya, Privacy As Civil Right, 50 New Mexico L. Rev. 3
(2020); Scott Skinner-Thompson, Privacy At The Margins, Cambridge
University Press (2020); Sara Sternberg Greene, Stealing (Identity)
From The Poor (2021), <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3781921">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3781921</a>; Michele Gilman, Feminism, Privacy,
And Law In Cyberspace, Oxford Handbook of Feminism and Law in the
U.S. (2021 Forthcoming), <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3779323">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3779323</a>.
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The Administration has highlighted that there is a national
imperative to promote equity and increase support for communities and
individuals that have been ``historically underserved, marginalized,
and adversely affected by persistent poverty and inequality.'' \5\ As
stated in the Executive Order on Advancing Racial Equity and Support
for Underserved Communities Through the Federal Government:
``[e]ntrenched disparities in our laws and public policies, and in our
public and private institutions, have often denied [. . .] equal
opportunity to individuals and communities.'' \6\ These entrenched
disparities persist in the digital economy, and the collection,
processing, sharing, and use of data can directly affect--both
positively and negatively--structural inequities present in our
society.
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\5\ Exec. Order No. 13,985, 86 FR 7009 (Jan. 20, 2021), <a href="https://www.federalregister.gov/documents/2021/01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government">https://www.federalregister.gov/documents/2021/01/25/2021-01753/advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government</a>.
\6\ Id.
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The following examples underscore how commercial collection and use
of personal information, even for legitimate purposes, often results in
disparate outcomes for marginalized and underserved communities:
<bullet> Digital advertising systems have been shown to often
reproduce historical patterns of discrimination by enabling
discriminatory targeting by advertisers.\7\ Even when targeting
criteria does not include protected traits, targeted advertising can be
used to perpetuate discrimination using proxy indicators of race,
gender, disability, and other characteristics.\8\
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\7\ Muhammad Ali et al., Discrimination Through Optimization:
How Facebook's Ad Delivery Can Lead to Skewed Outcomes, Computers
and Society (April 19, 2019), <a href="https://arxiv.org/abs/1904.02095">https://arxiv.org/abs/1904.02095</a>.
\8\ Id.
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<bullet> Data brokers, health insurance companies, and their
subsidiaries are using information such as neighborhood safety,
bankruptcies, gun ownership, inferred hobbies, and other information to
determine coverage for people they deem more likely to require more
expensive care.\9\ These assessments can rely on unreliable and
discriminatory heuristics or proxies for characteristics such as race,
socioeconomic status, or disability--or as one salesman joked, ``God
forbid you live on the wrong street these days,'' he said. ``You're
going to get lumped in with a lot of bad things.''\10\
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\9\ Marshall Allen, Health Insurers Are Vacuuming Up Details
About You--And It Could Raise Your Rates, Pro Publica (July 17,
2018), <a href="https://www.propublica.org/article/health-insurers-are-vacuuming-up-details-about-you-and-it-could-raise-your-rates">https://www.propublica.org/article/health-insurers-are-vacuuming-up-details-about-you-and-it-could-raise-your-rates</a>; Sarah
Jeong, Insurers Want To Know How Many Steps You Took Today, The New
York Times (April 10, 2019), <a href="https://www.nytimes.com/2019/04/10/opinion/insurance-ai.html">https://www.nytimes.com/2019/04/10/opinion/insurance-ai.html</a> (``But when it comes to insurance in
particular, there are unanswered questions about the kind of biases
that are acceptable. Discrimination based on genetics has already
been deemed repugnant, even if it's perfectly rational. Poverty
might be a rational indicator of risk, but should society allow
companies to penalize the poor?'').
\10\ Marshall Allen, Health Insurers Are Vacuuming Up Details
About You--And It Could Raise Your Rates, Pro Publica (July 17,
2018), <a href="https://www.propublica.org/article/health-insurers-are-vacuuming-up-details-about-you-and-it-could-raise-your-rates">https://www.propublica.org/article/health-insurers-are-vacuuming-up-details-about-you-and-it-could-raise-your-rates</a>; see
also, Rachel Goodman, Big Data Could Set Insurance Premiums.
Minorities Could Pay the Price, ACLU (July 19, 2018), <a href="https://www.aclu.org/blog/racial-justice/race-and-economic-justice/big-data-could-set-insurance-premiums-minorities-could">https://www.aclu.org/blog/racial-justice/race-and-economic-justice/big-data-could-set-insurance-premiums-minorities-could</a> (``Existing health
disparities mean that data will consistently show members of certain
groups to be more likely to need more health care. What will happen,
then, if this data starts being used against those groups? We know,
for example, that Black women are much more likely to experience
serious complications from pregnancy than white women. So, health
insurers might conclude that a woman who is Black and recently
married is likely to cost them more money than a white woman in the
same position''). Starre Vartan, Racial Bias Found in a Major Health
Care Risk Algorithm, Scientific American (Oct. 24, 2019), <a href="https://www.scientificamerican.com/article/racial-bias-found-in-a-major-health-care-risk-algorithm/">https://www.scientificamerican.com/article/racial-bias-found-in-a-major-health-care-risk-algorithm/</a> (``A study published Thursday in Science
has found that a health care risk-prediction algorithm, a major
example of tools used on more than 200 million people in the U.S.,
demonstrated racial bias--because it relied on a faulty metric
[previous patients' health care spending as a proxy for medical
needs].'').
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<bullet> Software implemented by a university to predict whether
students will struggle academically used race as a strong predictor for
poor performance.\11\ Black students were flagged ``high risk'' for
dropping out of certain subjects, such as science and math, at elevated
rates, a designation that researchers warned could improperly lead to
advisors encourage students to change to ``easier'' majors.\12\
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\11\ Todd Feathers, Major Universities Are Using Race as a
``High Impact Predictor'' of Student Success, The Markup (March 2,
2021), <a href="https://themarkup.org/news/2021/03/02/major-universities-are-using-race-as-a-high-impact-predictor-of-student-success">https://themarkup.org/news/2021/03/02/major-universities-are-using-race-as-a-high-impact-predictor-of-student-success</a>.
\12\ Feathers, supra note 8.
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In light of these and many more examples, it is critical for
policymakers to understand how information policy can reduce data-
driven discrimination and disparate treatment. In service of these
objectives, NTIA announces through this Notice three virtual Listening
Sessions, which aim to advance the policy conversation on how to
alleviate the disproportionate privacy harms suffered by marginalized
or underserved communities. NTIA's upcoming Listening Sessions are
intended as an opportunity to build the factual record for further
policy development in this area. The information gathered from these
Listening Sessions will inform a subsequent Request for Comment, and
together these efforts will provide the basis for NTIA to draft a
report. Possible topics include, but are not limited to:
<bullet> The role and adequacy of current civil rights laws,
related protections, and enforcement thereof in mitigating privacy
harms against marginalized communities.
<bullet> The interplay between current civil rights laws and
related protections with current privacy laws and proposed reforms.
<bullet> Data brokers and secondary markets for data.
<bullet> Exploitation of data or commercially available software
for stalking or harassment based on protected class status.
<bullet> Workplace tracking and surveillance that may be
discriminatory.
<bullet> Hiring, credit, lending, and housing algorithms and
advertisements.
<bullet> Intersectional privacy needs of groups such as trans
individuals, the unhoused, or people with disabilities.
The format of the Listening Sessions will include a mix of keynote
speeches, moderated panel discussions, and open forums for members of
the public to share their perspective. The first Listening session will
be held on December 14, 2021, on the intersection of civil rights law
and privacy. The second Listening session will be held on December 15,
2021, and will be on the
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way in which the collection, use, and processing of personal and
personally sensitive data affects structural inequities. The final
Listening session will focus on solutions to the gaps and problems
identified in the first two sessions, and will be held on December 16,
2021.
NTIA intends to publish a Notice and Request for Comments in the
Federal Register that will be informed by the input received during the
Listening Sessions. Members of the public unable to participate in the
Listening Sessions are encouraged to respond to the forthcoming Request
for Comments.
Time and Date: NTIA will convene three virtual Listening Sessions
on December 14, 15, and 16, 2021, from 1:00 p.m. to 3:30 p.m., Eastern
Standard Time. The exact time of the meeting is subject to change.
Please refer to NTIA's website, <a href="https://www.ntia.gov">https://www.ntia.gov</a>, for the most
current information.
Place: The meeting will be held virtually, with online slide share
and dial-in information to be posted at <a href="https://www.ntia.gov">https://www.ntia.gov</a>. Please
refer to NTIA's website, <a href="https://www.ntia.gov">https://www.ntia.gov</a>, for the most current
information.
Other Information: The meeting is open to the public and the press
on a first-come, first-served basis. The virtual meetings are
accessible to people with disabilities. Individuals requiring
accommodations such as real-time captioning, sign language
interpretation or other ancillary aids should notify Travis Hall at
(202) 482-3522 or <a href="/cdn-cgi/l/email-protection#3b4f535a57577b554f525a155c544d"><span class="__cf_email__" data-cfemail="1d69757c71715d7369747c337a726b">[email protected]</span></a> at least seven (7) business days prior
to the meeting. Access details for the meeting are subject to change.
Please refer to NTIA's website, <a href="https://www.ntia.gov/">https://www.ntia.gov/</a>, for the most
current information.
Dated: November 23, 2021.
Kathy D. Smith,
Chief Counsel, National Telecommunications and Information
Administration.
[FR Doc. 2021-25999 Filed 11-29-21; 8:45 am]
BILLING CODE 3510-60-P
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