Hirsch part of Senate subcommittee discussion of tech and privacy

TDAI affiliate Dennis Hirsch, professor at the Moritz College of Law and faculty director of the Program on Data and Governance, recently participated in one of the rarest of happenings in Washington, D.C.: an open and informed bipartisan discussion on an issue of national and international importance.

Dennis Hirsch

Dennis Hirsch

Hirsch was invited to participate in a panel discussion on privacy law and technology hosted by the Senate Subcommittee on Privacy, Law and Technology, a part of the Committee on the Judiciary. The subcommittee, chaired by Republican Jeff Flake of Arizona and also led by ranking member Christopher Coons, Democrat from Delaware, wanted to learn more about privacy regulation and possible legislative solutions. The session was the first of a series on these issues.

“They’re coming at this with a relatively open mind right now,” Hirsch said. The subcommittee invited a diverse set of panelists, including representatives from major technology companies, a small business owner, and a speaker from the Center for Democracy and Technology.

According to Hirsch, the session was a flowing exchange of ideas and proposals from the panelists and questions from the Senators. “You had a Republican, Jeff Flake, and a Democrat, Chris Coons, who want to think about this together,” he said. “The senators posed questions, anyone was free to answer them, or respond to comments, and it was a pretty free-ranging discussion for 90 minutes.”

Hirsch had a different perspective than the other panelists. He advocated looking at a broader view of the issue, in terms of big data and data analytics. “Most folks talked about privacy regulation. I did not. I had a particular view I wanted to bring, which is the governance of big data, data analytics, and machine learning. These technologies have many benefits, but they also pose some risks,” he said. “Baseline privacy regulation—that is, traditional privacy regulation—does not protect people in the age of big data.”

While Hirsch feels individual privacy controls are necessary, they are not sufficient, as most users do not understand the implications of clicking “Yes” when a company requests access to their data; the amount of information that can be determined and inferred from that data is beyond the scope of most users. Just as snake oil salespeople played on the vulnerabilities of their customers, so too do bad-faith users of big

data. In a March 24, 2018, opinion piece in The Hill, Hirsch provided an example: A for-profit college used a big dataset to identify people who felt vulnerable, isolated and stuck, then sent them ads for their expensive and academically fruitless courses.

Just as consumer protections were brought to bear against sellers of patent medicines, Hirsch advocates “rules of the road,” specific regulations on which big data analytics practices are fair and which are not. These regulations would go beyond a single industry or data-gathering entity, such as Facebook. He also provided a specific and substantive solution that has a precedent in U.S. law. The Federal Trade Commission and the Consumer Financial Protection Bureau have the ability to declare specific business practices to be unfair and out of bounds. However, they have been hesitant to do so in terms of big data. Hirsch suggested that to clarify the authority of the FTC and the CFPB to do so, Congress should amend the FTC Act of 1914 to make it clear their authority extends to issues that were unimaginable more than 100 years ago. Applying a more comprehensive solution allows us to enjoy the benefits of big data analysis—better medicines, information on how to increase student success and the overall health of populations—without expecting individual protections to solve a much larger problem.

The thoughtful exchanges among the participants was, Hirsch said, “refreshing, especially in the current climate in D.C.” His membership in TDAI was also pivotal. “I really appreciate the opportunity to present my views. My work with TDAI and interacting with others who are interested in big data analytics helped inform those views.”

Hirsch also appreciated the opportunity to use his knowledge to possibly inform public policy. “I do anticipate remaining involved with the subcommittee and being helpful however I can,” he said. “In my field being an academic, it’s rare you get to take your ideas and bring them into a forum in which there might be some real practical effect that benefits society. It was meaningful to engage in such a way.”

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