How Big Data Could Undo Our Civil-Rights Laws

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Big Data will eradicate extreme world poverty by 2028, according to Bono, front man for the band U2. But it also allows unscrupulous marketers and financial institutions to prey on the poor. Big Data, collected from the neonatal monitors of premature babies, can detect subtle warning signs of infection, allowing doctors to intervene earlier and save lives. But it can also help a big-box store identify a pregnant teenager—and carelessly inform her parents by sending coupons for baby items to her home. News-mining algorithms might have been able to predict the Arab Spring. But Big Data was certainly used to spy on American Muslims when the New York City Police Department collected license plate numbers of cars parked near mosques, and aimed surveillance cameras at Arab-American community and religious institutions.

Until recently, debate about the role of metadata and algorithms in American politics focused narrowly on consumer privacy protections and Edward Snowden’s revelations about the National Security Agency (NSA). That Big Data might have disproportionate impacts on the poor, women, or racial and religious minorities was rarely raised. But, as Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights, and Rashad Robinson, executive director of ColorOfChange, a civil rights organization that seeks to empower black Americans and their allies, point out in a commentary at TPM Cafe, while big data can change business and government for the better, “it is also supercharging the potential for discrimination.”

In his January 17 speech on signals intelligence, President Barack Obama acknowledged as much, seeking to strike a balance between defending “legitimate” intelligence gathering on American citizens and admitting that our country has a history of spying on dissidents and activists, including, famously, Dr. Martin Luther King, Jr. If this balance seems precarious, it’s because the links between historical surveillance of social movements and today’s uses of Big Data are not lost on the new generation of activists.

“Surveillance, big data and privacy have a historical legacy,” says Amalia Deloney, policy director at the Center for Media Justice, an Oakland-based organization dedicated to strengthening the communication effectiveness of grassroots racial justice groups. “In the early 1960s, in-depth, comprehensive, orchestrated, purposeful spying was used to disrupt political movements in communities of color—the Yellow Peril, the American Indian Movement, the Brown Berets, or the Black Panthers—to create fear and chaos, and to spread bias and stereotypes.”

In the era of Big Data, the danger of reviving that legacy is real, especially as metadata collection renders legal protection of civil rights and liberties less enforceable.

Undoing Civil Rights Law

The social movements of the 1960s and 1970s organized explicitly against racial profiling, real estate redlining, and discrimination in lending, employment, and education, resulting in some of the most comprehensive civil rights legislation in American history. Title VI of the Civil Rights Act of 1964 prohibited discrimination on the grounds of race in federally assisted programs, including local and state law enforcement and federal intelligence agencies. The 1968 Fair Housing Act made it illegal to deny housing or mortgage loans based on race, color, national origin, religion, sex, familial status or handicap. The Equal Credit Opportunity Act of 1974 made it illegal for creditors to base their decisions on race, religion, national origin, marital status or participation in public assistance programs.

But current Big Data practices threaten to turn the clock back on these victories and to unravel decades of collective work to achieve democracy, equity and racial justice. For example, intelligence fusion centers, charged by the Department of Homeland Security with sharing data between public agencies and private entities to improve policing and counterterrorism measures, infringe on civil rights when they encourage reporting of “suspicious activity” in ways that lead to religious and racial profiling.

A 2009 prevention awareness bulletin from the North Central Texas Fusion Center, for instance, called on law enforcement to report individuals who profess “an aggressive, pro-Islam agenda,” the hallmarks of which included the promotion of religious tolerance, accommodation of American Muslims, and the exercise of free speech and assembly. In the same year, a Virginia fusion center released a report that designated a number of Historically Black Colleges and Universities as potential hubs for extremist and terrorist groups. The U.S. Senate Permanent Subcommittee on Investigations recently questioned the accuracy and usefulness of fusion center intelligence, but the data they collect are nevertheless widely shared among local, state and federal agencies, private sector organizations, and foreign allies.

A New Kind of Redlining

Reverse redlining” also uses new data collection and mining techniques to revive outlawed discriminatory practices. In traditional redlining, federal agencies collected demographic and other data to draw red lines around minority neighborhoods, characterizing them as “high-risk investments,” and encouraging banks to refuse loans in these areas. Reverse redlining inverts this process. Financial institutions use metadata purchased from data brokers to split the real estate market into increasingly sophisticated micro-populations that are slapped with labels such as “Rural and Barely Making It,” “X-tra Needy,” and “Ethnic Second-City Strugglers”—categories that are clearly proxies for race and class—and then target these communities for subprime lending, payday loans, or other exploitative financial products. Reverse redlining is not seen as discriminatory by financial institutions, and is not currently illegal. In fact, it is often characterized as an inclusionary practice: a form of online marketing that provides access to financial products in “underbanked” neighborhoods.

But reverse redlining weakens the Civil Rights Act and undercuts fair lending laws. It robs whole communities of wealth and access to reasonable credit.

“This data-based discrimination strips crucial resources from working families and communities of color in ways that allow disadvantage to accumulate over time,” says Seeta Gangadharan, senior research fellow at the Open Technology Institute of the New America Foundation. “During the mortgage crisis, it is clear that African American and Latino families were targeted by the subprime industry—including by targeted online advertising. These families lost their homes and were foreclosed on at higher rates than other groups. Now these families have bad credit and that determination is sticking with them as they try to get out of debt.”

According to Terry O’Neill, president of the National Organization for Women (NOW), women, transpeople, and LGBTQ communities also face unique challenges in the new world of Big Data. While federal law prohibits basing hiring decisions on gender, marital status, pregnancy, age or disability, and many states outlaw discrimination on the basis of sexual orientation, a quick perusal of Facebook might subtly influence who makes the first cut for a job interview. While most conversations about surveillance focus on the state or corporations as the “watchers,” stalkers and abusers also use high-tech data gathering devices to track and harass their victims.

Research by the Consumer Federation of America and the Center for Responsible Lending have established that subprime loans were especially vigorously marketed to single mothers, especially African American women and Latinas. “Women don’t have the financial cushion to be able to withstand these kinds of rip-offs,” says O’Neill, “It’s a huge hurdle in the way of economic security because we only earn 77 cents to men’s dollar. Latinas only earn 59 cents to the dollar.”

Civil Rights Principles for a New Era

Big Data and surveillance are unevenly distributed. In response, a coalition of 14 progressive organizations, including the ACLU, ColorOfChange, the Leadership Conference on Civil and Human Rights, the NAACP, National Council of La Raza, and the NOW Foundation, recently released five “Civil Rights Principles for the Era of Big Data.” In their statement, they demand:

  • An end to high-tech profiling;

  • Fairness in automated decisions;

  • The preservation of constitutional principles;

  • Individual control of personal information; and

  • Protection of people from inaccurate data.

This historic coalition aims to start a national conversation about the role of big data in social and political inequality. “We’re beginning to ask the right questions,” says O’Neill. “It’s not just about what can we do with this data. How are communities of color impacted? How are women within those communities impacted? We need to fold these concerns into the national conversation.”

Coalition members hope that the principles will result in greater transparency in the ways information is collected and shared, and increased digital literacy investments in communities that are most directly impacted. They challenge the President’s Council of Advisors on Science and Technology to address the civil rights principles directly in the recommendations that result from its 90-day “Big Data and the Future of Privacy” study, which ends April 23. Whether or not the White House chooses to center the Civil Rights Principles in its efforts, “the document is proliferating across the country, and different are groups signing on,” says Deloney of the Center for Media Justice. “From the Beltway to local communities, the language of these visionary principles really resonates.”

What is clear is that social justice in the age of big data is not just about access, privacy or consumer protection. “Many folks whose rights are violated through Big Data may not be using computers or smart phones,” says Rashad Robinson, executive director of ColorOfChange. “But decisions are being made about their opportunities based on how their data is being collected and shared. Big Data has the potential to impact our lives through every single issue that we care about: voting rights, economic rights, the courts and the criminal justice system, safety in our communities. We need to ensure that new policies are created, not just from a consumer and business perspective, but from a civil rights perspective.”

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