President’s Big Data and Privacy Working Group Interim Report Is Troubling

In January 2014, President Obama appointed John Podesta, Counselor to the President, to lead a review of big data and privacy. On February 5, 2015, the Big Data and Privacy Working Group issued an interim report detailing their progress. Unfortunately, the report demonstrates the government cannot resist the temptation to put its clamps on progress in the name of the alleged public good.

One of the “key recommendations”, which the report claims requires prompt action is, “Expand technical expertise to stop discrimination”. This recommendation is problematic because the working group has concluded that big data is already being used to discriminate. Otherwise, it would not state it needs to “stop discrimination”.

Despite this proclamation, the report fails to give a single instance of big data being used to illegally discriminate against any person or class of people. Why let a lack of evidence stand in the way of a good recommendation, right? In this manner, the working party sets out an unsupported proposition, the figurative straw man, to justify the need to control a segment of the technology industry. A proper logical analysis would require evidence of discriminatory practices, before recommending an action to stop something that has not been shown to exist.

If big data is used to illegally discriminate based on a protected category, we already have numerous laws prohibiting such discrimination, including the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex or national origin. There is also the Americans with Disabilities Act, Fair Housing Act, and Genetic Information Non-Discrimination Act, to name a few. If, indeed, big data is used to discriminate on any impermissible basis, there are plenty of laws already on the books that can be used to remedy such practices.

Although this recommendation is only one (1) of six (6) issued by the Working Group, it is nevertheless troubling that they start with the unsupported presumption that big data is, or will be, used to discriminate, to justify the Working Group’s existence, and satisfy its need to control the private sector. In this fashion, the Big Data Working Group creates a “boogieman” from whom they then tell us we need protection. By the way, does anyone collect more data on each of us than the government? Just asking.

Written by: Richard Sheinis, Esq.