In opening remarks at the Future of Privacy Forum, Acting Federal Trade Commission (FTC) Chairwoman Rebecca Kelly Slaughter previewed several artificial intelligence (AI)-related enforcement priorities under the Biden Administration. Slaughter's speech marked her first major public address as acting chair, and she highlighted particular technologies and activities likely to receive the FTC's attention.
Her remarks suggest that the FTC is prepared to take an active role in investigating and enforcing AI-related issues, with disgorgement as a key remedy in its toolbox.
Considering Relief: Disgorgement, Consumer Notice
Slaughter emphasized her focus on obtaining strong relief for consumers—she dissented from major recent FTC cases, like YouTube, as she felt better outcomes should have been secured for consumers. She highlighted "meaningful disgorgement" as a remedy she wants the FTC to seek in future enforcement actions.
Slaughter referenced the FTC's recent settlement with Everalbum as an example of the potential application of disgorgement relief to privacy and security cases. If companies unlawfully collect and/or use consumers' data, the FTC should require disgorgement of both the improperly obtained data and any benefits from that data, Slaughter suggested.
In the Everalbum case, the company destroyed wrongfully collected data and the resulting models and algorithms. As we discussed after the settlement, this "fruit-of-the-poisonous-tree"-type remedy has significant potential ramifications for developers of AI and machine-learning technologies.
Slaughter tied the FTC's role in addressing systemic racism to the digital divide, exacerbated by COVID-19, AI and algorithmic decision-making, facial recognition technology, and use of location data from mobile apps.
- Algorithmic Discrimination: Slaughter also raised concerns about algorithmic discrimination and the potential risks of AI and algorithmic decision-making exacerbating racial disparities. She asked the FTC staff to investigate bias in algorithms and discriminatory outcomes.
- Facial Recognition Technology: Facial recognition technologies also present equity concerns, Slaughter explained, pointing out inaccuracies in the technologies' identification of non-white faces. The FTC will "redouble" its attention on violations of law related to facial recognition technology, out of concern for discrimination and the "obvious" privacy implications of tools that identify otherwise unknown individuals.
An Aggressive Enforcement Future?
Slaughter's remarks may portend an active FTC that takes an aggressive stance related to technologies using AI and machine learning. We expect the FTC will consider issuing civil investigative demands on these issues in the coming months and years.