United States: Big Data And Power Asymmetries: Recent White House Report Addresses Opportunities And Challenges Created By Increasingly Interconnected Technologies

In the latest round of reactions to the Edward Snowden leak, on May 1, 2014, the Obama Administration called for the United States to take a leading role in developing new standards for privacy protections in light of the ongoing "social, economic, and technological revolution." In a report titled "Big Data: Seizing Opportunities, Preserving Values," the White House tasked a wide range of experts to undertake a review of big data analytics and the benefits and pitfalls thereof in what was fundamentally termed "a scoping exercise." While recognizing the enormous gains to be realized through the application of new technologies which generate and gather enormous amounts of data, the report warns that data and privacy protections stemming from the Fourth Amendment and famously enunciated by the dissent of Justice Brandeis in the 1928 Supreme Court case, Olmstead v. United States, might simultaneously be at risk of quiet abrogation by the operation of predictive analytics.

The principal author of the report, senior White House advisor John Podesta, was joined by Secretary of Commerce Penny Pritzker and Secretary of Energy Ernest Moniz, among other administration officials. To maintain a true interdisciplinary scope, they engaged a multitude of industry representatives, civil rights groups, and other interested parties, organized several academic conferences, and solicited public comment.

The group principally focused on what is colloquially known as "big data" – a term referring to the data being captured and analyzed at an incredible and increasing volume, variety, and velocity due to ever-advancing technological capabilities. Mindful of the maxim that "technology is neither good nor bad; nor is it neutral," the report examined both public and private sector data management practices. Although the government's intelligence collection practices were largely left unscrutinized, a very real motivation for the review was the lack of consumer awareness over the amount, range, and sources of their personal information that is generated and subsequently used for both public and private purposes. Increasing the public's knowledge and awareness of the manner in which their personal data is collected and utilized, is seen by many as the first step towards ensuring that digital rights continue to be protected while the government and commercial sector continue to develop in the internet era.

The Report's Key Findings

After a 90-day study, the report found "that big data analytics have the potential to eclipse longstanding civil rights protections in how personal information is used" in a variety of applications, ranging from housing, employment, education, and health information. The risk of data collection to be used discriminatorily has been felt throughout history. The report cites the government's use of census data collected during World War II to identify Japanese citizens subject to internment camps as an example. Modern day civil rights risks raise fresh potential challenges to civil liberties.

For instance, the algorithmic engines that work to predict our next Amazon purchase, or customize the ads we see every day, could result in inequity. The widespread use of such algorithms caused particular concern to the authors of the report due to the potential for "redlining." Redlining refers to the potential to discriminate against the most vulnerable classes of society under "the guise of neutral algorithms." For example, some retailers have been found to use algorithms that generate different discounts depending on where their customers live; in application, the retailers applied bigger discounts to customers in affluent areas than those in places with lower income on average, and systematic application of such a process could lead to de facto discrimination on a large scale. Without review, the report concludes, these practices invite discrimination and open the door to abuse, regardless of whether discriminatory intent exists.

In light of the rising potential for civil rights infringements, the report discussed the need to consider policy shifts in order to protect civilian's privacy and data rights. Currently, privacy rights tend to operate on a traditional notice and consent framework, which puts the onus upon the individual supplying the information. The report notes, however, that given the new applications for and sources of big data, to properly ensure privacy protections a "responsible use" framework may afford better and more practical protection. Effectively, a responsible use framework would hold data collectors and users accountable for how they manage the data and any harm they cause, rather than turning on whether proper consent was initially obtained.

The Report's Recommendations

The report offered six recommendations in areas ranging from preserving privacy values, to preventing the use of big data to facilitate discrimination, to harnessing the potential of big data to advance educational and law enforcement capabilities.

  1. Update of Consumer Privacy Bill of Rights. The report calls for the Department of Commerce to seek public comment on how the Obama Administration's Consumer Privacy Bill of Rights, released in 2012, could support the innovations of big data, while responding to its risks, and how to apply the responsible use framework. Following this comment period, the report calls for the Department of Commerce to draft related legislation for the President to submit to Congress.
  2. National Data Breach Standard. The report calls for Congress to pass a single national data breach standard to replace the patchwork approach currently utilized across the 47 different states.
  3. Global Approach. In addition to modernizing and bolstering application of existing international agreements in the privacy sphere, the report calls for the Office of Management and Budget to work with departments and agencies to apply the Privacy Act of 1974 to non-U.S. citizens, or in the alternative, to craft policies that protect personally identifiable information regardless of the individual's nationality.
  4. Discriminatory Awareness. The report calls upon the government's lead civil rights and consumer protection agencies to expand their capabilities in order to identify big data applications and analytics that have discriminatory impact over protected classes, and to investigate and resolve violations of law in such circumstances.
  5. Educational Support. Recognizing the considerable education benefits that big data can have, but also the necessity of protecting students, the report calls for the modernization of existing privacy regulatory framework to support further use of big data to support education while ensuring that students' data is being used appropriately.
  6. Update of the Electronic Communications Privacy Act. Finally, the report calls upon Congress to amend the Electronic Communications Privacy Act in order to ensure digital content is properly protected online, particularly in light of increased use of such data by the national security, homeland security, law enforcement, and intelligence communities.

Early Reaction to the Report

At this stage, the reactions to the report have been largely positive. Privacy advocates are praising the report's conclusion that legislative updates are necessary in a variety of areas associated with big data. While some would have preferred that the report address the National Security Agency spying, others have appreciated the tack that the authors of the report took, noting that "[i]t's thorough, it's thoughtful, . . . [i]t doesn't try to bite off more than it should." (Gerstein, Josh and Alex Byers, "W.H. 'big data' review spotlights privacy debate," Politico, May 1, 2014.) Further, some have noted that the recommendations offered by the report have been previously endorsed or pursued in some form by the Obama Administration, with the exception of the recommendation regarding data collection on students being used solely for educational purposes. (Id.)


This report signals the Obama Administration's intent to address increasing concerns regarding the collection and use of individuals' personally identifiable information. Data collection has grown dramatically as technological advances have allowed both the government and private companies to gather enormous volumes of varied information at incredible rates. Through direct calls for Congress and various agencies to update data privacy legislation with input from both private and public actors, this report sets the stage for a series of developments in the data privacy arena in the near future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Drinker Biddle & Reath LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Drinker Biddle & Reath LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions