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“We don’t want states to be passing weak privacy laws that really put all of the burden on consumers to try to protect their own privacy and don’t change business models at all,” Caitriona Fitzgerald, deputy director of the Electronic Privacy Information Center advocacy group, told me.
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Note: This piece is part of a series examining NIST’s A.I. Risk Management Framework. If you missed our previous parts, click here for our introduction to the “Govern” function and click here for our introduction to the “Manage” function.
Released on January 26, 2023 by the National Institute of Standards and Technology (NIST), the A.I. Risk Management Framework is a four-part, voluntary framework intended to guide the responsible development and use of A.I. systems. At the core of the framework are recommendations divided into four overarching functions: (1) Govern, which covers top-level policy decisions and organizations culture around A.I. development; (2) Map, which covers efforts to contextualize A.I. risks and potential benefits; (3) Measure, which covers efforts to assess and quantify A.I. risks; and (4) Manage, which covers the active steps an organization should take to mitigate risks and prioritize elements of trustworthy A.I. systems. In addition to the core Framework, NIST also hosts supplemental resources like a community Playbook to help organizations navigate the Framework. Over the next few weeks, EPIC will continue to distill the A.I. Risk Management Framework’s recommendations into more actionable instructions.
The Map Function of the A.I. Risk Management Framework urges companies to document every step of the A.I. development lifecycle, from identifying use cases, benefits, and risks to building interdisciplinary teams and testing methods. However, it goes further: the A.I. Risk Management Framework also pushes companies to consider the broader contexts and impacts of their A.I. systems—and resolve conflicts that may arise between different documented methods, uses, and impacts. Notably, the Map Function recommends (1) pursuing non-A.I. and non-technological solutions when they are more trustworthy than an A.I. system would be and (2) decommissioning or stopping deployment of A.I. systems when they exceed an organization’s maximum risk tolerance. The Map Function also includes recommendations for instituting and clearly documenting procedures for engaging with internal and external stakeholders for feedback.
EPIC believes the main suggested actions under the Map Function can be encompassed by 5 recommendations:
A breakdown of where how each suggested action within the Map Function maps onto these five recommendations is provided below.
Maintain Awareness of and Engagement with Diverse Stakeholders and A.I. Standards.
On March 30, EPIC submitted comments to the White House Office of Science and Technology Policy (OSTP) recommending several resources to assist OSTP in fulfilling the aims of the “Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety” Executive Order. Broadly, the resources EPIC provided addressed how law enforcement organizations can and do violate open records law, eschew transparency, and misuse data and statistics in ways that perpetuate harm. EPIC also urged OSTP to consider that data transfers between agencies are not necessarily safe or helpful, especially for vulnerable individuals and marginalized communities, and urged that privacy-enhancing technologies such as differential privacy be employed as minimum safeguards.
EPIC regularly comments on open government, algorithmic harms, differential privacy, and the impact of poor privacy and data security practices on vulnerable populations.
Through the sheer power of his intellectual output, Ludwig von Mises established himself as one of the most important intellectuals of the twentieth century. His work Human Action remains a foundational text of the Austrian school. His critique outlining the impracticality of socialism was vindicated with the fall of the Soviet Union and remains without a serious intellectual challenge today.
Just as important, but often overlooked, is his work on the economic system that continues to infect the world today: interventionism.
Like contemporaries such as James Burnham, Mises discerned that the true threat to free markets in the West was not a true socialist revolution, but rather a “middle of the road” approach that so attracted an intellectually shallow political class.
In 1950, during one of his most important speeches, Mises identified the most dangerous ideology on the global stage:
They reject socialism no less than capitalism. They recommend a third system, which, as they say, is as far from capitalism as it is from socialism, which as a third system of society’s economic organization, stands midway between the two other systems, and while retaining the advantages of both, avoids the disadvantages inherent in each. This third system is known as the system of interventionism. In the terminology of American politics it is often referred to as the middle-of-the-road policy.
This ideology succeeded where communism failed, successfully toppling governments around the world that never had true respect for property rights.
But as Mises understood, however, this “managerial revolution” could not last as a sustainable form of government. Interventionism may be politically convenient, but ultimately it is grounded in volatile inconsistencies. It must be rejected completely, or it will inevitably lead to more and more power shifting to the state.
This is precisely what we have seen.
The twentieth century witnessed governments hostile to communism abroad become increasingly accepting of growing statism within. The regulatory state grew. The welfare state grew. The warfare state grew. The spending at home and domestically was so great that it forced the American government to break the dollar’s tie with gold, giving the American technocracy new ways to extract the wealth of the people and reward loyal institutions.
The only remaining checks to the state come from what the public will put up with, and from competition between governments seeking to attract financial and human capital.
In 2021, would-be central planners in national governments and globalist institutions have identified the opportunity to transcend these remaining limits. Under the guise of “public health,” proud “liberal democracies” have imprisoned their own citizens without due process. They have shut down economies and destroyed countless small businesses. They have mandated medical procedures. With the help of regulated corporations, they have silenced political dissidents.
In response to the economic consequences of these actions, they are seeking to eliminate tax competition among states, harmonize medical mandates, control the prices of select industries, and debank those who resist.
With this new playbook and global ambitions, institutions like the International Monetary Fund and the World Bank are seeking to use…
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Facebook announced today that it is pausing its work on a kids’ version of Instagram after facing widespread criticism. In March 2021, reports leaked that Facebook was planning to build a version of Instagram for kids under the age of 13. Regarding today’s announcement, Fairplay’s Executive Director stated, “Today is a watershed moment for the growing tech accountability movement and a great day for anyone who believes that children’s wellbeing should come before Big Tech’s profits.” The earlier reports faced swift backlash as consumer protection advocacy groups and politicians asked Facebook to halt its plan. This announcement came after senators announced an investigation into Facebook’s negative effects on teenagers and a series of investigations by the Wall Street Journal which revealed that Facebook is aware of its harmful effects on users. EPIC signed onto a letter by Campaign for a Commercial-Free Childhood, now known as Fairplay, urging Facebook to cancel its plan for Instagram Kids. EPIC has fought for transparency and accountability for Facebook’s privacy abuses for over a decade, from filing the original FTC Complaint in 2009 that led to the FTC’s 2012 Consent Order with the company, to moving to intervene in and filing an amicus brief challenging the FTC’s 2019 settlement with Facebook.
The Constitution had been ratified and was going into effect, and the next great question before the country was the spate of amendments which the Federalists had reluctantly agreed to recommend at the state conventions. Would they, as Madison and the other Federalists wanted, be quietly forgotten? The Antifederalists, particularly in Virginia and New York, would not permit that to happen and the second convention movement, led by Patrick Henry and George Mason in Virginia and proposed by the New York convention circular letter, was the Antifederal goal. Already the circular letter had won approval from Virginia, North Carolina, and Rhode Island. A second convention would reopen the whole question of the Constitution and allow restrictive amendments and alterations which could severely weaken the rampant nationalism of the new government of the United States. For the same reason, a second convention was precisely what the victorious Federalists had to prevent at all costs.
The Federalists, of course, wanted no part of any amendments or reminders of their promises, and Senator Ralph Izard, wealthy Federalist planter of South Carolina, expressed their sentiments at the first session of Congress when he urged his colleagues to forget about their amendments and get down to problems of finance.
James Madison, who defeated James Monroe in the Virginia elections to the House of Representatives and assumed the leadership of the Federalists in Congress, abhorred the concept of a bill of rights. But as a shrewd political tactician, he realized that the second convention movement could swell to formidable proportions. To avoid a potential crippling of the essentials of American nationalism, Madison decided that it was better to make some concessions right away and thus pull the teeth out of the drive for an overhaul of the Constitution before it really got underway. Madison also had a powerful political motive for making such concessions. Antifederalism was powerful in Virginia, as had been demonstrated in Henry’s almost successful attempt to keep the hated Madison out of Congress altogether. If he was to save his political hide in his home state, Madison had to act, quickly, and in his hard-fought election campaign he had pledged to work for such amendments in Congress.
The approximately 210 amendments proposed by the states were of two basic kinds: a bill of rights for individuals and statehood reform to battle federal power. Typical of the former was trial by jury; of the latter was two-thirds requirement for passing a navigation law. The former did not alarm the Federalists nearly as much as the latter, for the former would leave intact a supreme national power, banned only in specific instances from making certain incursions on the perceived liberty of the individual. But the statehood amendments could cut aggressively into the very political and economic vitals of the national juggernaut and battle it effectively from within that power structure itself. The structural amendments would have expanded the libertarian scope of the bill of rights from personal liberties alone to the political and economic. This…
The Ninth Circuit announced today police violated a defendant’s Fourth Amendment rights when they warrantlessly searched files that Google automatically reported using a proprietary algorithm designed to detect child sexual abuse material (“CSAM”). Prosecutors in the case, United States v. Wilson, had argued that the police officer’s search of the defendant’s files did not violate the Fourth Amendment because Google, a private party, had conducted the initial search. The district court agreed, finding that there was a “virtual certainty” that the files Google sent to police were identical to files previously identified by a Google employee as CSAM. But no Google employee reviewed the defendant’s files before sending them to police—instead, Google automatically forwarded the files to law enforcement after a proprietary algorithm matched the files to previously-identified CSAM images. EPIC filed an amicus brief in the Ninth Circuit appeal to explain that prosecutors had failed to show that the proprietary Google algorithm reliably matched images. EPIC also urged the court to narrowly apply the private search exception. The Ninth Circuit found that the police search “allowed the government to learn new, critical information” and “expanded the scope of the antecedent private search because the government agent viewed Wilson’s email attachments even though no Google employee—or other person—had done so.” The Ninth Circuit also echoed EPIC’s amicus brief: “on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of Wilson’s images.” The decision in this case diverges from previous federal appeals and state court decisions on the issue and may lead the Supreme Court to review the important privacy implications of mass automatic file scanning programs.
The New Jersey Supreme Court today decided that dog owners in the state do not have a colorable claim to privacy in their names and addresses—but there may be a privacy interest in the names and breeds of their dogs. The case, Bozzi v. City of Jersey City, asked whether the privacy exemption to the state’s freedom of information law required government agencies to withhold the names and addresses of dog license holders when the only justification for disclosure was commercial interest in selling dog paraphernalia. EPIC filed an amicus brief and presented oral argument in the case, arguing that the privacy interests in names and addresses in government documents is well established under federal law and the state should follow the federal example. The court’s majority found no colorable claim to privacy for dog owners because “owning a dog is, inherently, a public endeavor”—owners take their dogs on “daily walks, grooming sessions, veterinarian visits,” “celebrate their animals on social media or bumper stickers” and “enter their dogs into public shows.” But, as the two dissenting justices retorted, “dog owners appearing in public with their dogs do not do so while simultaneously advertising their full names and addresses.” Further undermining the majority’s reasoning was the court’s recognition that other information in the dog license record—such as the name and breed of the dog, which is exposed to the public to the same degree as dog ownership, and moreso than the names and addresses of owners—may need to be redacted because of the privacy interests at stake. EPIC routinely participates as amicus in cases involving involuntary disclosure of personal information to third parties.
Nine Democratic Senators led by Senator Richard Blumenthal have called on the Federal Trade Commission to conduct a rulemaking process to “protect consumer privacy, promote civil rights, and set clear safeguards on the collection and use of personal data in the digital economy.” “Americans’ identities have become the currency in an unregulated, hidden economy of data brokers that buy and sell sensitive information about their families, religious beliefs, healthcare needs, and every movement to shadowy interests, often without their awareness and consent,” the Senators said. Senators Schatz, Wyden, Warren, Coons, Luján, Klobuchar, Booker, and Markey joined Senator Blumenthal on the letter. EPIC has long urged the FTC to impose clear privacy obligations on companies that collect and use personal data, including by exercising the Commission’s underused rulemaking power. In 2020, EPIC filed a petition with the FTC calling on the Commission to conduct a rulemaking on the use of artificial intelligence in commercial settings. “By defining unfair and deceptive practices ex ante, and with specificity, a trade regulation rule would make it easier for the FTC to take action against parties that harm consumers,” EPIC explained.
DHS Facial Recognition facial recognition social media monitoring
In a letter to the Secretary of Homeland Security, EPIC and a Coalition of privacy, civil rights, and civil liberties organizations demanded the Department of Homeland Security (DHS) end some of the agency’s more pervasive surveillance programs. The coalition called for DHS to end its practice of purchasing sensitive data (e.g. cellphone location and utility information) from third-party vendors and cease the collection of social media identifiers. The coalition also urged DHS to implement a moratorium on the use of face recognition for immigration enforcement. In previous comments to DHS, EPIC opposed DHS collecting social media identifiers and called for DHS to suspend the use of facial recognition.
