Hutson & Winters on Algorithmic Disgorgement

Jevan Hutson & Ben Winters (Electronic Privacy Information Center) have posted “America’s Next ‘Stop Model!’: Algorithmic Disgorgement” on SSRN. Here is the abstract:

Beginning with its 2019 final order In the Matter of Cambridge Analytica, LLC, followed by a May 2021 decision and order In the Matter of Everalbum, Inc. in the context of facial recognition technology and affirmed by its March 2022 stipulated order in United States of America v. Kurbo, Inc. et al in the context of children’s privacy, the United States Federal Trade Commission now wields algorithmic disgorgement—effectively the destruction of algorithms and models built upon unfairly or deceptively sourced (i.e., ill-gotten) data — as a consumer protection tool in its ongoing, uphill battle against unfair and deceptive practices in an increasingly data-driven world. The thesis of this Article is that algorithmic disgorgement is (i) an essential tool for consumer protection enforcement to address the complex layering of unfairness and deception common in data-intensive products and businesses and (ii) worthy of express endorsement by lawmakers and immediate use by consumer protection law enforcement. To that end, the Article will explain how the harms of algorithms built on and enhanced by ill-gotten data are layered, hard to trace, and require an enforcement tool that is consequently comprehensive and effective as a deterrent. This Article first traces the development of algorithmic disgorgement in the United States and then situates the development of algorithmic disgorgement within historical and other current US consumer protection law enforcement mechanisms. From there, this Article reflects upon on the need for and importance of algorithmic disgorgement and broader consumer protection enforcement for issues of unfairness and deception in AI, highlighting the significance of the Kurbo case being a violation of a children’s privacy law, which does not have a corollary for adults in the U.S. Ultimately, this Article argues that (i) state and federal lawmakers should enshrine algorithmic disgorgement into law to insulate it from potential challenge and (ii) state and federal consumer protection law enforcement entities ought to wield algorithmic disgorgement more aggressively to remedy and deter unfair and deceptive practices.