Comment to CFPB on Big Tech Payment Platforms

View a PDF of this letter here.

December 9, 2021

Amy Zirkle
Program Manager for Payments & Deposits
Bureau of Consumer Financial Protection
1700 G Street, NW
Washington, DC 20552

Re: Statement into Big Tech Payment Platforms, Docket No. CFPB-2021-0017

Dear Ms. Zirkle,

On behalf of The Leadership Conference on Civil and Human Rights, a coalition charged by its diverse membership of more than 220 national organizations to promote and protect the rights of all persons in the United States, we thank you for the opportunity to inform the agency’s inquiry into how major technology companies use personal payments data and manage data access to users. Our comments will focus on the need for major tech companies to address threats to civil rights created or facilitated by their platforms and to improve civil rights infrastructure.

The internet has created immense positive value by connecting people, facilitating civil rights advocacy, and adding new voices to our culture and public debate. However, it can also enable discriminatory conduct and exacerbate existing disparities. We encourage the agency to focus on the most important opportunities to ensure these platforms serve all people, which we discuss in more detail below.

Technological progress should promote equity and justice as it enhances safety, economic opportunity, and convenience for everyone. On October 21, 2020, The Leadership Conference joined dozens of leading civil rights and technology advocacy organizations in releasing updated Civil Rights Principles for the Era of Big Data,^[1] in response to the current risks to civil rights and with an eye toward how technology can meet its promise and affirmatively promote justice and equity. These principles provide important guidelines to aid this agency in ensuring that new technologies — including algorithmic decision making, artificial intelligence, and machine learning — protect civil rights, prevent unlawful discrimination, and advance equal opportunity.

Of relevance to this inquiry, the Principles propose a set of civil rights protections, including:

Ensuring Justice in Automated Decisions. Statistical technologies, including machine learning, are informing important decisions in areas such as employment, health, education, lending, housing, immigration, and the criminal legal system. Decision-making technologies too often replicate and amplify patterns of discrimination in society. These tools must be judged not only by their design but also, even primarily, by their impacts – especially on communities that have been historically marginalized. Transparency and oversight are imperative to ensuring that these systems promote just and equitable outcomes, and in many cases the best outcome is to not use automated tools in high-stakes decisions at all.

Ensuring that Technology Serves People Historically Subject to Discrimination Technology should not merely avoid harm, but actively make people’s lives better. Governments, companies, and individuals who design and deploy technology should strive to mitigate societal inequities. This includes improving access to the internet and addressing biases in data and decision-making. Technologies should be deployed in close consultation with the most affected communities, especially those who have historically suffered the harms of discrimination

Defining Responsible Use of Personal Information and Enhancing Individual Rights. Corporations have pervasive access to people’s personal data, which can lead to discriminatory, predatory, and unsafe practices. Personal data collected by companies also often end up in the hands of the government, either through the direct sale of personal data or through data-driven systems purpose-built for the government. Clear baseline protections for data collection, including both primary and secondary uses of data, should be enacted to help prevent these harms.

Making Systems Transparent and Accountable. Governments and corporations must provide people with clear, concise, and easily accessible information on what data they collect and how it is used. This information can help equip advocates and individuals with the information to ensure that technologies are used in equitable and just ways. Any technology that has a consequential impact on people’s lives should be deployed with a comprehensive, accessible, and fair appeals process with robust mechanisms for enforcement, and governments and corporations must be accountable for any misuse of technology or data. When careful examination reveals that a new, invasive technology poses threats to civil rights and civil liberties, such technology should not be used under any circumstance.

Regulators should press tech companies to conduct independent civil rights audits as well as improve their civil rights infrastructure. Structural changes within the platforms will also help better protect civil rights by ensuring platforms can hold themselves accountable to their commitment to civil rights, diversity, and inclusion. We believe tech companies should conduct credible independent civil rights audits, which are independent analyses conducted by firms with civil rights expertise that assess an organization’s business policies, practices, and products to determine whether those components have a discriminatory effect on people who have been historically subject to discrimination.[2] However, without institutional commitment and outside pressure, the impact of an audit will be limited and short-lived.

That is why, in addition to pushing for civil rights audits, we are also urging tech companies to adopt structural reforms that comply with federal civil rights law and demonstrate that the companies understand that civil rights are not a partisan issue, but instead are fundamental to protecting the constitutional rights of all people and thus should be part of the organic structure and operations of these companies. This means that tech companies must hire staff with civil rights expertise in senior leadership. The civil rights infrastructure within the companies must be well-resourced and empowered within the company and consulted on the companies’ major decisions. New and clarified policies should be subject to vetting and review by internal teams with real civil rights expertise and experience, prior to their implementation. Finally, tech companies should provide a process and format through which civil rights advocates and the public can engage with the companies and monitor their progress.

We also believe tech companies must do more to address meaningful diversity and inclusion at their workplaces and the lack of people of color in senior executive, engineering, and technical positions. People of color who are working at these companies often face discrimination and unequal pay, as well as a culture where they are devalued. Tech companies must ensure that this does not happen in their workplaces and must address the inequities that may have already occurred. They also must develop strategies to attract and retain talent in diverse communities to expand access to jobs and opportunities.

Prevention of harm, not damage and after-the-fact repair, must be the goal. This goal cannot be fully accomplished if those with civil rights expertise are not part of decision-making processes. We urge this agency to review and scrutinize tech companies to make sure that they are taking the necessary steps to accomplish this goal.

Thank you for the consideration of our views. If you have any questions about the issues raised in this letter, please contact Rob Randhava at [email protected].

Sincerely,

Wade Henderson, Interim President and CEO

Jesselyn McCurdy, Executive Vice President of Government Affairs

^[1] https://www.civilrightstable.org/principles/

[2] https://civilrights.org/blog/civil-rights-audit-report/