Commitment Analysis: Big Data Openness and Accountability in the Second National Action Plan

The following analysis is from Khaliah Barnes, Director of the Student Privacy Project and Administrative Law Counsel at the Electronic Privacy Information Center (EPIC).

The Obama Administration’s Second Open Government National Action Plan aims to “use big data to support greater openness and accountability.” The Administration has committed to:

• Enhance sharing of best practices on data privacy for state and local law enforcement;
• Ensure privacy protection for big data analyses in health; and
• Expand technical expertise in government to stop discrimination.

Earlier this year, a coalition of privacy and open government organizations recommended that the White House incorporate transparency, oversight, accountability, robust privacy techniques, meaningful evaluation, and individual control into the White House review on Big Data and the Future of Privacy. The Coalition urged, “entities that collect personal information should be transparent about what information they collect, how they collect it, who will have access to it, and how it is intended to be used. Furthermore, the algorithms employed in big data should be made available to the public.” The Coalition also recommended, “entities that improperly use data or algorithms for profiling or discrimination should be held accountable. Individuals should have clear recourse to remedies to address unfair decisions about them using their data. They should be able to easily access and correct inaccurate information collected about them.”

At a minimum, the Second Open Government National Action Plan should adopt the Coalition recommendations for big data transparency and accountability. Moreover, as described below, the Administration must promote algorithmic transparency and use robust, scalable, and provable anonymization techniques.

The Administration’s first big data commitment is to “enhance sharing of best practices on data privacy for state and local law enforcement.” To do this, “federal agencies with expertise in law enforcement, privacy, and data practices will seek to enhance collaboration and information sharing about privacy best practices among state and local law enforcement agencies receiving Federal grants.” Promoting exchanges of privacy best practices among federal and state law enforcement is not transparency. Instead, the Administration should provide openness and accountability on how federal and local law enforcement use fusion centers to exchange sensitive personally identifiable information.

According to a 2012 U.S. Senate Permanent Subcommittee on Investigations Report, the Department of Homeland Security has provided approximately $800 million annually to fusion centers, where state and local law enforcement collect, analyze, and exchange information about individuals with federal agencies. The report found that fusion center reports were often erroneous, irrelevant to fighting terrorism, and retained information in violation of the Privacy Act and First Amendment.

In light of the 2012 Senate report highlighting fusion center ineffectiveness and threats to personal privacy, the Administration should stop funding fusion centers. Alternatively, the Administration should promote fusion center transparency, accountability, and oversight by: (1) publishing fusion center algorithms that law enforcement uses to assign individuals risk scores; (2) disclosing locations and amount of federal funding of each fusion center; (3) publishing names of all federal, state, local, and private fusion center partners; and (4) requiring annual reporting detailing the number of fusion center arrests, prosecutions, and convictions.

The Administration’s second commitment to promote big data openness and accountability is to “ensure privacy protection for big data analyses in health.” The White House, in collaboration with the Department of Health and Human Services, plans to: “(1) consult with stakeholders to assess how Federal laws and regulations can best accommodate big data analyses that promise to advance medical science and reduce health care costs; and (2) develop recommendations for ways to promote and facilitate research through access to data while safeguarding patient privacy and autonomy.” In developing recommendations to promote research while safeguarding patient privacy, the White House should focus on strengthening the Common Rule and promoting robust, scalable, and provable anonymization techniques. These anonymization techniques need independent evaluation to ensure that they adequately remove personally identifiable information. Professor Latanya Sweeney of the Data Privacy Lab and a coalition of data privacy experts and researchers previously urged Health and Human Services to “invest in data privacy research and to establish channels for [the National Center for Health Statistics, National Institute of Standards and Technology] or a professional data privacy body to operationalize scientific research results so that real-world data-sharing decisions rely on the latest guidelines and best practices.”

The Administration’s final commitment is to “expand technical expertise in government to stop discrimination.” To achieve this, the Administration will encourage federal agencies to “expand their technical expertise to identify outcomes facilitated by big data analytics that may have a discriminatory impact on protected classes.” Identifying big data’s discriminatory impacts will not stop discrimination. Instead, the Administration must promote public transparency and oversight into big data algorithms and automated decisions.