US FTC Publishes Guidance on Using Artificial Intelligence and Algorithms

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On April 8, 2020, the US Federal Trade Commission (“FTC”) published a business blog, titled “Using Artificial Intelligence and Algorithms” (the “FTC Blog”). The FTC Blog suggests that, while the use of AI technologies and algorithms has immense potential for improving welfare and productivity, it also presents risks, including the possibility of unfair or discriminatory outcomes or the perpetuation of existing socioeconomic disparities. The FTC’s recommendations, which culminated from its broad experience, law enforcement actions against entities engaged in AI and automated decision-making (including, its November 2018 hearing to explore AI, algorithms, and predictive analytics), and prior publications on the use of big data analytics and machine learning (including its 2016 Big Data: A Tool for Inclusion or Exclusion report, which offered guidance to companies on how to reduce opportunities for bias), underline that the use of AI tools should be “transparent, explainable, fair, and empirically sound, while fostering accountability.”

This blog summarizes the FTC’s recommendations and guidance on the use of AI technologies and algorithms to make decisions about consumers, and how companies can manage consumer protection risks that could arise from the use thereof.

Transparency on Use of Automated Tools and Collection of Sensitive Data

The FTC cautions against using automated tools in ways that could deceive customers, including by using “chatbots, fake followers, phony subscribers, and bogus ‘likes’”, which could rise to an FTC action.  The FTC also highlights the importance of transparency when collecting sensitive data, noting that secretly collecting audio or visual data to train algorithms could also give rise to an FTC action.

Additionally, entities that make automated decisions relying on information obtained from a third-party vendor may be required to provide consumers with an “adverse action” notice. For example, under the US Fair Credit Reporting Act (“US FCRA”), vendors that collect consumer information to automate decision-making about eligibility toward insurance, housing, credit, employment, or similar benefits and transactions, may be considered a “consumer reporting agency.” This may trigger additional duties under the US FCRA for entities that use such reports or scores as a basis to, for instance, “deny someone an apartment, or charge them higher rent.” In such cases, entities must provide the affected consumers with an adverse action notice, which should inform the consumers about their right to access the information reported about them and to correct inaccurate information.

Explaining Algorithmic Decision-Making to Consumers

The FTC recommends companies to disclose to consumers the principal reasons for why they were denied something of value, such as the reasons for being denied credit. It notes that companies must be specific in their reasoning, which requires them to be aware of what data were used in their models, aware of how such data were used to arrive at a decision and, above all, able to explain how AI technologies or algorithms made their decisions to the consumer. Similarly, companies that use a behavioral scoring model or other automated tools to change the terms of a deal, including reducing consumers’ credit limits, must also inform their consumers.

For companies that use AI algorithms to assign risk scores to consumers, under the US FCRA, such companies must disclose key factors that affect such scores rank-ordered by importance. Specifically, the US FCRA requires that consumers be given notice if their credit score is used to deny them credit, or offer them less favorable terms. Consumers must also receive a description of their score, including its source and the range of scores under the credit model used, and, at a minimum, four key factors that adversely affected their credit score, listed in the order of their importance based on their effect on their credit score.

Ensuring Fairness in Decision-Making

The FTC enforces the US Equal Credit Opportunity Act (“US ECOA”), which is a US statute that “prohibits credit discrimination on the basis of race, color, religion, national origin, sex, marital status, age, or because a person receives public assistance.” The FTC notes that federal equal opportunity laws (including the US ECOA) may be relevant to AI decision-making, and therefore, companies should be mindful of such laws when using AI technologies in algorithms. Notably, under the US, the FTC may challenge a company’s use of AI to make credit decisions based on factors covered under the US ECOA  if such use results in a “disparate impact” on particular ethnic groups. Therefore, to manage consumer protection risks that may be inherent in the use of AI technologies and algorithms, companies that use AI in the foregoing manner should rigorously test their algorithm to avoid discriminatory outcomes. The FTC further recommends that when evaluating an AI algorithm or tool, companies should focus on the inputs to the AI model, as well as the outcomes, as a facially neutral model may produce an illegal disparate impact on protected classes based on the inputs to or as a result of the computations made by the AI model.

Consumers must also be given access and the opportunity to correct information used in AI decision-making. For instance, under the US FCRA, adverse action notices to consumers must include the source of the information that was used to make an adverse decision to the consumer’s interests, as well as notify consumers of their access and dispute rights. Where companies use consumer credit information or credit reports to make decisions about a consumer, such companies should consider providing the consumers a copy of the information they relied upon to make such important decisions, and allowing them to dispute the accuracy of any such information used.

Using Empirically Sound and Robust Data and Models

Entities that provide consumer credit information or credit reports about consumers to third parties to “make decisions about consumer access to credit, employment, insurance, housing, government benefits, check-cashing or similar transactions” may be considered consumer reporting agencies, and, if deemed to be a consumer reporting agency, must comply with the US FCRA. Such entities have an obligation to put in place reasonable procedures to ensure maximum possible accuracy of consumer credit reports, including maintaining the accuracy and currency of credit information about consumers, and providing consumers with access to their own information, along with the ability to correct any errors.

The obligation to ensure data accuracy similarly applies to entities that are not consumer reporting agencies, but provide their customer data to credit reporting agencies for use in their automated decision-making. Such “furnishers” under the US FCRA may not furnish data that they have reasonable cause to believe may not be accurate. Data accuracy and integrity must be ensured through written policies and procedures. Furnishers also have an obligation to investigate disputes from consumers, as well as disputes received from the consumer reporting agency.

AI models must also be validated and revalidated to ensure that they operate as intended, and avoid discrimination. Lending laws, for instance, encourage the use of AI tools that are “empirically derived, demonstrably and statistically sound.” Such AI tools must rely on data derived from an empirical comparison of sample groups, and must be created and validated using accepted statistical principles and methodology. They ought to be periodically revalidated by the use of appropriate statistical principles and methodology, and adjusted appropriately to maintain predictive ability.

Accountability For Compliance, Ethics, Fairness, and Non-Discrimination

Big data analytics could result in bias or other harm to consumers. To avoid that outcome, any operator of an AI algorithm should ask itself four key questions: (a) How representative is the data set? (b) Does the data model account for biases? (c) How accurate are the predictions based on big data? (d) Does the reliance on big data raise ethical or fairness concerns?

Algorithms must also be protected from unauthorized use. Entities engaged in this sphere must also increase their awareness on and take measures against new technologies, i.e. voice-cloning technologies, that have the potential of being misused. Such companies should assess the means of holding themselves accountable, and consider using independent standards or independent expertise to determine compliance of their AI tools.

Concluding Remarks

The development of regulations specific to AI is still at an early stage both in the US and in Canada, but organizations are now taking a proactive stance in implementing and developing responsible and ethical AI principles, which will better prepare such organizations for upcoming regulatory changes, mitigating their risks associated with AI, and put them in leadership positions as responsible corporate agents. The FTC Blog provides useful practical guidance for all companies that have commenced deploying AI-enhanced automated-decision tools in a consumer context.  It provides helpful, concrete examples of relevant compliance requirements.

It is interesting to note that many organizations have published AI-related frameworks that discuss very similar principles to the ones examined in the FCT Blog (including on “accountability”, “transparency” and “fairness”). As discussed in previous TechLex blogs, many of these frameworks focus on ethical principles (see our discussion on AI Policy Framework released by the International Technology Law Association and the OECD), all of which add to a growing body of regulatory and industry guidance on the responsible use of AI. Moreover, it is increasingly apparent that our clients will seek guidance not only on the core principles that underlie the responsible deployment of AI systems, but also in relation to effective governance processes to implement such principles. In this context, the Singapore Model Artificial Intelligence Governance Framework is particularly interesting as it does not simply state ethical principles, but it also links them to precise and concrete governance measures that can be implemented by organizations.

For more information about your company’s obligations and compliance or to read more about our Firm’s Technology expertise, please see our Technology group page.

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