FTC, DOJ, CFPB and EEOC Release Joint Statement on Enforcement Against Unlawful Use of Automated Systems
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On
April
25,
2023,
officials
from
the
Federal
Trade
Commission,
Consumer
Financial
Protection
Bureau
(“CFPB”),
Department
of
Justice’s
Civil
Rights
Division
(“DOJCRD”)
and
the
Equal
Employment
Opportunity
Commission
(“EEOC”)
released
a
Joint
Statement
on
Enforcement
Efforts
against
Discrimination
and
Bias
in
Automated
Systems
(“Statement”),
also
sometimes
referred
to
as
“artificial
intelligence”
(“AI”).
The
Statement,
issued
by
Rohit
Chopra
(Director,
CFPB),
Kristen
Clarke
(Assistant
Attorney
General,
DOJCRD),
Charlotte
Burrows
(Chair,
EEOC)
and
Lina
Khan
(Chair,
FTC),
outlines
the
commitment
of
the
four
agencies
to
enforce
the
laws
within
their
respective
purviews
to
protect
against
bias
and
other
harms
in
automated
systems.
The
Statement
focuses
on
“automated
systems”
software
and
algorithmic
processes,
including
AI,
that
are
used
to
automate
workflows
and
help
people
complete
tasks
or
make
decisions,
including
about
access
to
employment
opportunities,
housing
credit
opportunities
and
other
goods
and
services.
The
Statement
highlighted
the
following
examples
of
the
agencies’
positions
relating
to
automated
systems.
-
The
FTC,
which
protects
consumers
from
unfair
and
deceptive
business
practices
and
unfair
competition
(e.g.,
under
Section
5
of
the
FTC
Act,
the
Fair
Credit
Reporting
Act,
and
the
Equal
Credit
Opportunity
Act),
issued
a
report
to
Congress
in
2022
evaluating
the
use
of
AI
in
combatting
online
harms
and
outlining
concerns
that
AI
tools
can
be
inaccurate,
biased
and
incentivize
invasive
commercial
surveillance.
The
FTC
warned
in
February
and
March
2023
that
discriminatory
impacts,
unsubstantiated
statements
and
failures
to
assess
and
mitigate
risks
in
connection
with
AI
tools
may
violate
the
FTC
Act.
The
FTC
has
required
companies
in
recent
years
to
destroy
algorithms
(In
re
Everalbum,
Inc.)
and
other
work
product
(In
re
Weight
Watchers/WW)
that
were
trained
on
data
that
should
not
have
been
collected. -
The
CFPB,
which
protects
the
financial
marketplace
from
unfair,
deceptive,
or
abusive
acts
or
practices
and
from
discrimination,
published
a
circular
in
May
2022
indicating
that
financial
consumer
protection
laws,
including
requirements
to
provide
notice
of
adverse
actions
on
credit
applications,
apply
regardless
of
the
technology
used,
and
that
complex
algorithms
should
be
avoided
when
using
them
would
mean
that
creditors
cannot
provide
the
required
reasons
for
adverse
actions. -
The
DOJCRD,
which
enforces
constitutional
provisions
and
federal
statutes
prohibiting
discrimination,
filed
a
statement
of
interest
in
January
2023
in
a
pending
lawsuit
in
the
U.S.
District
Court
for
the
District
of
Massachusetts
explaining
how
the
Fair
Housing
Act,
which
prohibits
discrimination
in
housing
on
the
basis
of
race,
color,
religion,
sex,
familial
status,
national
origin
and
disability,
applies
to
algorithm-based
tenant
screening
services. -
The
EEOC,
which
enforces
federal
laws
prohibiting
discrimination
against
applicants
or
employees
due
to
a
person’s
race,
color,
religion,
sex,
national
origin,
age,
disability
or
genetic
information,
issued
a
technical
assistant
document
in
May
2022
explaining
how
the
Americans
with
Disabilities
Act
applies
to
the
use
of
AI
to
make
employment-related
decisions
about
job
applicants
and
employees.
The
Statement
indicated
that
potential
bias
in
automated
systems
may
stem
from
skewed
underlying
datasets,
opaque
“black
box”
systems
that
obscure
biases
and
reliance
on
flawed
assumptions
about
users
and
uses
at
the
system
design
phase.
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