Is Algorithmic Bias an Unfair Trade Practice?
Executive Summary
In April, an interagency group including the FTC, CFPB, EEOC, and DOJ Civil Rights Division issued a statement announcing their intention to use their existing authority to address discrimination and bias in automated systems. That statement is one of many recent signs that the FTC and CFPB (and state AGs) are looking to bring an enforcement action alleging that algorithmic bias is an unfair trade practice. This novel legal position has wide-ranging implications. Companies rely on algorithms not just to make credit, employment, and housing decisions that are covered by specific civil rights laws, but to make myriad other decisions about advertising, pricing, offers, and eligibility related to a range of goods and services — all of which could be subject to a disparate impact unfairness action. This panel discusses the legal basis for this theory of liability and practical advice for how companies can protect themselves.
Speakers:
Frank Gorman
Partner
WilmerHale
Nina Frant
Vice President, Consumer Policy
U.S. Chamber of Commerce
Susan Zoch
General Counsel
Dentsu Inc.
CLE Materials
- Session Presentation
- Aiming for Truth, Fairness, and Equity in Your Company's Use of AI: FTC
- Chamber of Commerce v. CFPB
- Combatting Online Harms Through Innovation; Federal Trade Commission Report to Congress
- Consumers Are Voicing Concerns About AI: FTC
- Federal Trade Commission Act — Section 5: Unfair or Deceptive Acts or Practices
- FTC Policy Statement on Unfairness
- FTC v. Passport
- FTC v. Passport: Dissenting Statement of Commissioner Phillips
- FTC Won't Repeat Privacy Mistake With AI, Bureau Chief Says: Law360
- Joint Statement on Enforcement Efforts Against Discrimination and Bias in Automated Systems
- President Biden's Executive Order Sets Ambitious Agenda for AI Development and Use: WilmerHale
- Public Law 111–203: Dodd-Frank Wall Street Reform and Consumer Protection Act
- US Code 2021: Title 15 — Commerce and Trade