Obama Administration’s Big Data Review

In 2014, President Barack Obama delivered speech on reform of the National Security Agency’s bulk metadata collection program under Section 215 of the USA Patriot Act. Following that speech, White House counselor John Podesta announced “a comprehensive review of the way that ‘big data will affect the way we live and work; the relationship between government and citizens; and how public and private sectors can spur innovation and maximize the opportunities and free flow of this information while minimizing the risks to privacy.” This was the first major privacy initiative announced by the White House since the release of the Consumer Privacy Bill of Rights in 2012. The undertaking involved key officials across the federal government, including the President’s Science Advisor and the President’s Council of Advisors on Science and Technology.

Soon after the announcement, EPIC and a coalition of consumer groups wrote a letter to John Holdren, the Director of the Office of Science and Technology Policy. EPIC urged OSTP to provide the public an opportunity to comment and suggested that the review take into consideration (but not be limited to) the following important questions about the role of Big Data in our society:

1. What potential harms arise from big data collection and how are these risks currently addressed?
2. What are the legal frameworks currently governing big data, and are they adequate?
3. How could companies and government agencies be more transparent in the use of big data, for example, by publishing algorithms?
4. What technical measures could promote the benefits of big data while minimizing the privacy risks?
5. What experience have other countries had trying to address the challenges of big data?
6. What future trends concerning big data could inform the current debate?

On March 4, 2014, in response to suggestions from EPIC and other consumer privacy groups, the Office of Science and Technology Policy published a Request for Information, which provides the public an opportunity to comment on the Podesta Big Data Review. EPIC submitted comments to the review, emphasizing how the current Big Data environment poses enormous risks to ordinary Americans. EPIC emphasized the data security risks and substantial risks to student privacy that exist in the current big data regulatory environment and called for the Administration to better implement the Fair Information Practices (FIPs) first set out in 1973. Other groups comments included: Center for Democracy and Technology, The Future of Privacy Forum, The Privacy Coalition, The Internet Association, The Consumer Federation of America, and the Federation of American Societies for Experimental Biology.

On May 1, 2014, the White House released the Big Data Privacy Report. The report noted that “[b]ig data technologies will be transformative in every sphere of life” and that they raise “considerable questions about how our framework for privacy protection applies in a big data ecosystem.” The review also warned that “data analytics have the potential to eclipse longstanding civil rights protections in how personal information is used in housing, credit, employment, health, education, and the marketplace. Americans’ relationship with data should expand, not diminish, their opportunities and potential.”

The President’s Council of Advisors on Science and Technology released a report on the same day, entitled, “Big Data and Privacy: A Technological Perspective.” PCAST wrote that “[t]he challenges to privacy arise because technologies collect so much data (e.g., from sensors in everything from phones to parking lots) and analyze them so efficiently (e.g., through data mining and other kinds of analytics) that it is possible to learn far more than most people had anticipated or can anticipate given continuing progress. These challenges are compounded by limitations on traditional technologies used to protect privacy (such as de-identification). PCAST concludes that technology alone cannot protect privacy, and policy intended to protect privacy needs to reflect what is (and is not) technologically feasible.”

In February 2015, the White House released an interim progress report on its big data initiative. The administration wrote that “[p]olicy development remains actively underway on complex recommendations [from the report], including extending more privacy protections to non-U.S. persons and scaling best practices in data management across government agencies.”

In 2020, an EPIC FOIA lawsuit resulted in the release of a 2014 report from the Department of Justice to President Obama warning about the dangers of predictive analytics and algorithms in law enforcement. As related communications revealed, the report grew out of the White House’s efforts around big data. The Justice Department report highlights the risks of “making decisions about sentencing—where individual liberty is at stake in the most fundamental way—based on historical data about other people,” explaining that “equal justice demands that sentencing determinations be based primarily on the defendant’s own conduct and criminal history.”