Norma Krayem is a senior policy advisor in Holland & Knight's Washington, D.C. office

The Federal Trade Commission (FTC) continues its comprehensive efforts to focus on consumer protection issues, including those around the use of Big Data, Artificial Intelligence (AI) and predictive analytics. These tools are utilized by every industry – ranging from banking/financial services, health, transportation, energy, retail, payment processors and a host of others – to meet the needs of their customers and for service delivery. This is the seventh FTC hearing that focuses on a comprehensive agenda on consumer protection issues originally announced in August 2018 that we discussed in a prior blog. The two day hearing, which kicks off on Nov. 13-14, 2018, focuses on 25 different questions and is open for comment by the public until Feb. 18, 2019. To help structure the debate and discussion on these questions, the FTC has created five main pillars the workshop will cover including:

  1. Background on Algorithms, Artificial Intelligence, and Predictive Analytics, and Applications of the Technologies
  2. Common Principles and Ethics in the Development and Use of Algorithms, Artificial Intelligence, and Predictive Analytics
  3. Consumer Protection Issues Related to Algorithms, Artificial Intelligence, and Predictive Analytics
  4. Competition Issues Related to Algorithms, Artificial Intelligence, and Predictive Analytics
  5. Other key policy issues including the need to understand the pace of technological change and how public policies should keep pace with it; as well as foundational questions including "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?"

These issues also include the rise of FinTech in the financial services sector and includes the use of new technologies like blockchain in varying applications. In 2017, the FTC focused specifically on issues surrounding Artificial Intelligence and FinTech and the FTC has indicated an ongoing interest in these issues as well. Certainly, cybersecurity and privacy issues underpin the concerns along with broader consumer protection issues with the use of Big Data, AI and other tools. At the same time, various states are becoming more active on these issues and Congress, on a bipartisan basis, has expressed concerns about these issues as well, so expect more on these issues in the new incoming 116th Congress as well.

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