October 18, 2021
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Re: Civil Rights and Privacy Rulemaking
Dear Chair Khan,
We, the undersigned organizations, write to express our support of the Senators’ request that the Commission initiate a rulemaking “to protect consumer privacy, promote civil rights, and set clear safeguards on the collection and use of personal data in the digital economy.”
How data is collected, processed and shared has a direct impact on civil rights and economic opportunities and falls squarely within the Commission’s authority. Companies use personal data to enable and even perpetuate discriminatory practices against people of color, women, members of the LGBTQIA+ community, religious minorities, persons with disabilities, persons living on low income, immigrants and other marginalized groups. Companies also use personal data to track, confuse, trick, and exploit individuals for commercial gain.
It is well documented that discriminatory and abusive data practices are prevalent, indicating a widespread pattern of unfair or deceptive practices across all major spheres of everyday life of commerce, including employment, finance, healthcare, credit, insurance, housing, and education. These practices are embedded in every sector of society and especially harm historically disadvantaged communities.
A rulemaking that addresses the entire life cycle of data—collection, use, management, retention, and deletion — will provide people with significant protection from discrimination and related data harms. The FTC has a history of working and advising on complex privacy issues and has expressed interest in addressing the civil rights impacts of unfair data practices. The PrivacyCon workshop series has been part of the FTC calendar since 2016, and the FTC has published influential reports on Big Data, data brokers, as well as the privacy and security annual update for Congress. We support the FTC’s call for increased funding to ensure that the Commission has the expertise and infrastructure necessary to respond to and prevent data harms. Yet even before it may obtain such additional resources, we are asking that the FTC use its substantial existing knowledge, as well as its experience in bringing diverse communities together, to begin the rulemaking process.
The FTC’s rulemaking authority is particularly well suited to respond to the range of data harms. A rulemaking will enable the Commission to establish clear rules against discriminatory and abusive data practices through an open, participatory process. In addition to identifying and defining unfair and deceptive data practices, the Commission can also use a rulemaking to establish comprehensive “requirements prescribed for the purpose of preventing such acts or practices.” These could include requirements that entities obtain explicit permissions or follow specific restrictions based on the types of personal data involved, the particular uses of the data, and the entities utilizing and sharing the data.
We urge the Commission to comprehensively address discriminatory and abusive data practices in a privacy rulemaking proceeding and set standards to protect all consumers.