FTC Hearing #7: The Competition and Consumer Protection Issues of Algorithms, Artificial Intelligence, and Predictive Analytics

The Federal Trade Commission held the seventh session of its Hearings Initiative, with a two-day hearing at the Howard University School of Law in Washington, D.C., on November 13-14, 2018. Howard University was a co-sponsor of the event.

The hearing examined competition and consumer protection issues associated with the use of algorithms, artificial intelligence, and predictive analytics in business decisions and conduct.
The hearing informed the FTC, other policymakers, and the public of:

• the current and potential uses of these technologies;
• the ethical and consumer protection issues that are associated with the use of these technologies;
• how the competitive dynamics of firm and industry conduct are affected by the use of these technologies; and,
• policy, innovation, and market considerations associated with the use of these technologies.

To further its consideration of these issues, the agency sought public comment on the questions listed below, and it welcomes input on other related topics not specifically listed here.

Background on Algorithms, Artificial Intelligence, and Predictive Analytics, and Applications of the Technologies

1. What features distinguish products or services that use algorithms, artificial intelligence, or predictive analytics? In which industries or business sectors are they most prevalent?
2. What factors have facilitated the development or advancement of these technologies? What types of resources were involved (e.g., human capital, financial, other)?
3. Are there factors that have impeded the development of these technologies? Are there factors that could impede further development of these technologies?
4. What are the advantages and disadvantages for consumers and for businesses of utilizing products or services facilitated by algorithms, artificial intelligence, or predictive analytics?
5. From a technical perspective, is it sometimes impossible to ascertain the basis for a result produced by these technologies? If so, what concerns does this raise?
6. What are the advantages and disadvantages of developing technologies for which the basis for the results can or cannot be determined? What criteria should determine when a “black box” system is acceptable, or when a result should be explainable?

Common Principles and Ethics in the Development and Use of Algorithms, Artificial Intelligence, and Predictive Analytics

7. What are the main ethical issues (e.g., susceptibility to bias) associated with these technologies? How are the relevant affected parties (e.g., technologists, the business community, government, consumer groups, etc.) proposing to address these ethical issues? What challenges might arise in addressing them?
8. Are there ethical concerns raised by these technologies that are not also raised by traditional computer programming techniques or by human decision-making? Are the concerns raised by these technologies greater or less than those of traditional computer programming or human decision-making? Why or why not?
9. Is industry self-regulation and government enforcement of existing laws sufficient to address concerns, or are new laws or regulations necessary?
10. Should ethical guidelines and common principles be tailored to the type of technology involved, or should the goal be to develop one overarching set of best practices?

Consumer Protection Issues Related to Algorithms, Artificial Intelligence, and Predictive Analytics

11. What are the main consumer protection issues raised by algorithms, artificial intelligence, and predictive analytics?
12. How well do the FTC’s current enforcement tools, including the FTC Act, the Fair Credit Reporting Act, and the Equal Credit Opportunity Act, address issues raised by these technologies?
13. In recent years, the FTC has held public forums to examine the consumer protection questions raised by artificial intelligence as used in certain contexts (e.g., the 2017 FinTech Forum on artificial intelligence and blockchain and the 2011 Face Facts Forum on facial recognition technology). Since those events, have technological advancements, or the increased prevalence of certain technologies, raised new or increased consumer protection concerns?
14. What roles should explainability, risk management, and human control play in the implementation of these technologies?
15. What choices and notice should consumers have regarding the use of these technologies?
16. What educational role should the FTC play with respect to these technologies? What would be most useful to consumers?

Competition Issues Related to Algorithms, Artificial Intelligence, and Predictive Analytics

17. Does the use of algorithms, artificial intelligence, and predictive analytics currently raise particular antitrust concerns (including, but not limited to, concerns about algorithmic collusion)?
18. What antitrust concerns could arise in the future with respect to these technologies?
19. Is the current antitrust framework for analyzing mergers and conduct sufficient to address any competition issues that are associated with the use of these technologies? If not, why not, and how should the current legal framework be modified?
20. To what degree do any antitrust concerns raised by these technologies depend on the industry or type of use?

Other Policy Questions

21. How are these technologies affecting competition, innovation, and consumer choices in the industries and business sectors in which they are used today? How might they do so in the future?
22. How quickly are these technologies advancing? What are the implications of that pace of technological development from a policy perspective?
23. How can regulators meet legitimate regulatory goals that may be raised in connection with these technologies without unduly hindering competition or innovation?
24. Are there tensions between consumer protection and competition policy with respect to these technologies? If so, what are they, and how should they be addressed?
25. What responsibility does a company utilizing these technologies bear for consumer injury arising from its use of these technologies? Can current laws and regulations address such injuries? Why or why not?

Comments should be submitted no later than February 15, 2019. If any entity has provided funding for research, analysis, or commentary that is included in a submitted public comment, such funding and its source should be identified on the first page of the comment.

Disability Accommodation

The FTC Hearings On Competition and Consumer Protection in the 21st Century will accommodate as many attendees as possible; however, admittance will be limited to seating availability. Reasonable accommodations for people with disabilities are available upon request. Request for accommodations should be submitted to Elizabeth Kraszewski via email at ekraszewski@ftc.gov or by phone at (202) 326-3087. Such requests should include a detailed description of the accommodation needed. Please allow at least five days advance notice for accommodation requests; last minute requests will be accepted but may not be possible to accommodate.