Chairman Wicker, Chairman Pallone, Ranking Member Cantwell, Ranking Member Walden, and Members of the House and Senate Commerce Committees:
We, the undersigned members of the civil rights, civil liberties, and consumer protection communities, write to emphasize the importance of addressing data-driven discrimination and equal opportunity in comprehensive consumer privacy legislation. Fundamentally, the right to privacy exists to, among other things, protect against unfair and inappropriate uses of personal information. Any legislation addressing data practices must recognize and address how the exploitation of personal information can disproportionately harm marginalized communities, including by enabling discrimination—intentionally or unintentionally—against people of color, women, religious minorities, members of the LGBTQ+ community, persons with disabilities, persons living on low income, and immigrants.
Personal data are the raw materials that fuel discrimination. Commercial data practices that process massive quantities of personal data enable and facilitate discrimination on a systematic scale. Exploitation of personal information can cause myriad harms to marginalized communities, including:
- Voter Suppression: As shown by Russian 2016 election interference efforts that deliberately targeted African Americans, personal information can be weaponized to deceive and disenfranchise
- Digital Redlining: Using personal information to profile individuals enables discrimination and predatory marketing in employment, housing, credit, education,v and insurance
- Discriminatory Policing: Commercial databases can be accessed by government surveillance programs and law enforcement agencies, often without a warrant or due process protections, and used in a discriminatory manner. These data are often used to target civil rights
- Retail Discrimination: Companies can use a person’s location and behavioral data to discriminate in the prices, terms, or discounts they offer in their online stores, such as charging higher prices for low-income neighborhoods. Brick- and-mortar stores may also use facial recognition to surveil shoppers, despite its well established racial and gender biases.
- Exacerbation of Digital Inequity: There is a gap between technology haves and have-nots. Companies widen this gap when they engage in data practices that exploit those who lack tech literacy or limit protections for those who can’t afford to pay for privacy
- Amplification of White Supremacy: The algorithms of social media companies use personal data to maximize user engagement at all costs, including by recommending extreme content such as fringe conspiracy theories and white supremacy.xiii
- Identity Theft: Low income families with fewer resources are more vulnerable to financial harms from identity theft. Even a small disruption to personal credit could be devastating to a family that is already struggling to make ends
- Endangering Personal Safety: Careless data practices by tech companies can expose vulnerable populations to threats to physical safety. They can non- consensually reveal someone’s sexual orientation or gender identity, allow domestic abusers to track their victims, and expose sensitive personal secrets.
These harms occur primarily in three ways. Either a company who holds the personal information uses it to directly discriminate against marginalized communities; a company who holds the personal information makes it available to other actors who use it to discriminate against marginalized communities; or a company designs its data processing practices in a manner that unintentionally causes discriminatory results. But the bottom line is that if major tech companies and data brokers were not collecting, aggregating, and using vast quantities of personal information in privacy-invasive ways, many of these harms would not happen or would be far more difficult to perpetrate.
Comprehensive data practices legislation must prioritize and directly address the civil rights impacts from the exploitation of personal information. As Congress considers its legislative options, it should include provisions that:
- Prohibit the use of personal data to discriminate in employment, housing, credit, education, or insurance—either directly or by disparate
- Prohibit the use of personal data to discriminate in public accommodations and extend such protections to businesses that offer goods or services
- Prohibit the use of personal data to engage in deceptive voter
- Require companies to audit their data processing practices for bias and privacy
- Require robust transparency at two tiers: easy-to-understand privacy notices for consumers, and comprehensive annual privacy reports for researchers and regulators. Companies must completely disclose how they collect and use personal data, including their algorithmic processing
- Enable researchers to independently test and audit platforms for discrimination.
- Empower a federal agency with rulemaking authority, enforcement powers, and enough resources to address current and future discriminatory
- Provide individual rights to access, correct, and delete one’s personal data and inferences made using that
- Provide a private right of action. Marginalized communities historically have not been able to rely upon the government to protect their interests, so individuals need to be able to vindicate their own
- Establish baseline nationwide protections and allow states to enact stricter laws. Under no circumstances should Congress enact any legislation that could preempt state civil rights laws, many of which are stronger than federal law. For example, many states extend greater anti- discrimination protections to the LGBTQ+ community than federal
As Congress debates consumer privacy proposals, we look forward to continuing to work with you to ensure that legislation to rein in commercial data practices addresses the real-world harms caused by the misuse of personal information. For too long, corporations have ignored the digital pollution that their commercial data practices generate; they must be held accountable for the negative externalities of their business models. Comprehensive privacy reform is necessary to empower consumers, protect against discrimination, and promote equal opportunity for all in the modern public square and marketplace.
Center for Digital Democracy
Center for Media Justice
Center on Privacy & Technology at Georgetown Law
Color of Change
Consumer Federation of America
Demand Progress Education Fund
Free Press Action
Human Rights Campaign
Lawyers’ Committee for Civil Rights Under Law
|Maryland Consumer Rights Coalition
National Consumer Law Center, on behalf of its low-income clients
National Disability Rights Network
National Hispanic Media Coalition
National Urban League
New America’s Open Technology Institute
Open MIC (Open Media and Information Companies Initiative)
Public Justice Center
Southern Poverty Law Center
The Leadership Conference on Civil and Human Rights
United Church of Christ, OC Inc.