Bill Text (PDF)

Washington (July 13, 2023) – Senator Edward J. Markey (D-Mass.), a member of the Senate Commerce, Science, and Transportation Committee, and Representative Doris Matsui (CA-07), ranking member of the House Energy and Commerce Subcommittee on Communications & Technology, today reintroduced their Algorithmic Justice and Online Platform Transparency Act. The legislation would ban harmful algorithms, bolster transparency by holding websites accountable for their content amplification and moderation practices, and commission a cross-government investigation into discriminatory algorithmic processes throughout the economy.

Algorithms are automated systems built into an online platform’s infrastructure to determine what content users can see online. These automated decisions are often informed by a user’s data or behavior—with or without their awareness. Biased algorithms can deepen inequalities and direct content away from people based on race, gender, disability, and other protected characteristics. Algorithms have caused discrimination in a variety of contexts, including platforms delivering housing advertisements in ways that result in racial discrimination, excluding users of certain gender identities from viewing job advertisements, and blocking advertisements for clothing made for people with disabilities. Reports have also found that platforms have failed to follow their own policies on stopping harmful algorithmic processes, including one investigation that found Facebook failed to comply with its commitment to stopping algorithms from recommending political groups ahead of the 2020 U.S. presidential election.

As algorithms become increasingly prevalent in health care, higher education, employment screening, and financial services, the lack of prohibition around discriminatory algorithms pose even greater risks. The increasing use of artificial intelligence tools that pose harms to marginalized communities warrants a comprehensive review of these technologies and their potential for discriminatory outcomes.

“Congress must hold Big Tech accountable for its black-box algorithms that perpetuate discrimination, inequality, and racism in our society – all to make a quick buck. We have to write into our computer code the moral code that we want to see online,” said Senator Markey. “The Algorithmic Justice and Online Platform Transparency Act will create a 21st century digital ecosystem that prioritizes transparency and justice for all people. I thank Representative Matsui for her continued partnership on this critical legislation to ensure fundamental rights and equal opportunity are protected online.”

“Harmful content continues to proliferate online, and online platforms are making conscious efforts to spread it through their algorithms,” said Representative Matsui. “In order to make meaningful progress on digital equity and justice, we must root out the systemic biases and injustices that certain algorithms continue to perpetuate. The Algorithmic Justice and Online Platform Transparency Act casts a spotlight on discriminatory practices and ensures critical oversight to hold platforms accountable. I am proud to partner with Senator Markey on this important effort.” 

A copy of the legislation can be found HERE

Specifically, the Algorithmic Justice and Online Platform Transparency Act would:

  1. Prohibit algorithmic processes on online platforms that discriminate based on race, age, gender, ability and other protected characteristics;
  2. Establish a safety and effectiveness standard for algorithms, such that online platforms may not employ automated processes which harm users or fail to ensure algorithms achieve their intended purposes;
  3. Require online platforms to describe to users in plain language the types of algorithmic processes they employ and the information they collect to power them;
  4. Require online platforms to maintain detailed records describing their algorithmic process for review by the Federal Trade Commission (FTC), in compliance with key privacy and data de-identification standards;
  5. Require online platforms to publish annual public reports detailing their content moderation practices; and,
  6. Create an inter-agency task force comprised of entities including the FTC, Department of Education, Department of Housing and Urban Development, Department of Commerce, and Department of Justice to investigate the discriminatory algorithmic processes employed in sectors across the economy.

The Algorithmic Justice and Online Platform Transparency Act is cosponsored by Senators Sheldon Whitehouse (D-R.I.) and Elizabeth Warren (D-Mass.) and Representative Kweisi Mfume (MD-07).

Endorsers of the Algorithmic Justice and Online Platform Transparency Act include Asian Americans Advancing Justice (AAJC), Access Now, Center for Digital Democracy, Color of Change, Common Cause, Common Sense Media, Consumer Reports, Electronic Privacy Information Center (EPIC), Free Press Action, Lawyers’ Committee for Civil Rights Under Law, National Hispanic Media Coalition, Public Citizen, Fight for the Future, and Public Knowledge.

“This legislation will establish critically needed benchmarks for AI systems including safety and effectiveness, transparency, safeguarding of privacy and data, and protection against discrimination,” said Alondra Nelson, AI Policy Expert at The Institute for Advanced Study. “At a historic juncture requiring bold, technologically-informed, and agile policymaking, Senator Markey’s legislation proposes a crucial next step to ensure the clear and present risks of AI systems are mitigated and the promise of AI can be broadly shared.”

“As civil society works to expose algorithmic discrimination, unpacking how precarious the decisions made by harmful algorithms are and who they impact the most – already marginalized and vulnerable communities – Senator Markey and Representative Matsui’s Algorithmic Justice and Online Platform Transparency Act helps pave the way for a framework that prioritizes human rights,” said Willmary Escoto, U.S. Policy Counsel at Access Now.

“The widespread use of algorithms by companies, especially with regard to the types of content we see online, requires safeguards against a host of discriminatory practices and outcomes. Transparency is essential to ensure that the arsenal of algorithms used to target us or to deny us opportunities operates responsibly,” said Katharina Kopp, Director of Policy of Center for Digital Democracy. “Senator Markey and Representative Matsui’s Algorithmic Justice and Online Transparency Act provides this important first step and other protections to reign in the growing power of the social media industry in our lives.”

“The Algorithmic Justice and Online Platform Transparency Act will be a remarkable investment in establishing an effective regulatory standard for preventing racially biased algorithms and discrimination online,” said Brandon Tucker, Senior Director of Policy and Government Affairs at Color Of Change. “This Bill centers racial justice as an essential consideration when it comes to revising tech policy and regulatory action, and its passage will finally hold Big Tech corporations accountable for historically targeting and racially exploiting Black people. Color Of Change commends Senator Markey and Representative Matsui for the reintroduction of this legislation and for their commitments to demanding federal regulations that ensure the safety of Black communities online.”

“All Americans suffer when Big Tech and other corporations use discriminatory algorithms that perpetuate biases and limit choices for certain individuals and communities,” said Michael Copps, Special Advisor at Common Cause and former FCC commissioner. “We deserve to have safe online communities free from discrimination, and we must hold tech platforms accountable when they are bad actors. Common Cause is appreciative of Senator Markey and Representative Matsui’s leadership in introducing the Algorithmic Justice and Online Platform Transparency Act, and we look forward to working for its passage.”

“I applaud Senator Markey and Representative Matsui for reintroducing his bill that will provide a much needed roadmap to a healthy algorithmic future,” said James Steyer, Founder and CEO of Common Sense Media. “The truth is that digital algorithms today shape much of our, and our children’s, social networks, educational opportunities, and views of the world, and yet those algorithms are never assessed for safety or effectiveness. Senator Markey’s bill will help to change that, and in addition it will also provide a number of opportunities for researchers, watchdogs, and families to better understand how platforms operate, how they target us, and what they do with everything we’re creating and sharing online.”

“Consumer Reports is thrilled to see Senator Markey and Representative Matsui reintroduce the Algorithmic Justice and Online Platform Transparency Act, as the problems it would address have only become more urgent and crucial since its original introduction last Congress. Consumers deserve an online ecosystem free from discrimination and opaque, unaccountable algorithmic targeting. This bill offers a resolute proposal that will offer much-needed transparency and prevent further algorithmic harms to consumers,” said Laurel Lehman, Policy Analyst at Consumer Reports.

“Algorithms and artificial intelligence systems are being deployed in opaque and unaccountable ways that are harming individuals and exacerbating biases. Senator Markey and Congresswoman Matsui’s Algorithmic Justice and Online Platform Transparency Act prohibits discrimination by algorithm and puts critical guardrails in place to ensure automated decision-making is fair and transparent. EPIC is proud to support this legislation,” said Caitriona Fitzgerald, Deputy Director of Electronic Privacy Information Center (EPIC).

“Free Press Action has long called on lawmakers to expand the privacy debate and account for civil rights violations perpetrated online,” said Nora Benavidez, Senior Counsel and Director of Digital Justice and Civil Rights at Free Press Action. “The Algorithmic Justice and Online Platform Transparency Act accomplishes just that — by focusing on preventing discriminatory algorithmic processes that disproportionately impact communities of color. Its transparency requirements are also a necessary step to holding platforms accountable for abusive data practices that perpetuate disparate outcomes. We thank Senator Markey for recognizing the need for online businesses to protect the rights of marginalized and vulnerable communities, and to prevent discrimination based on people’s personal information and characteristics.”

“The Algorithmic Justice and Online Platform Transparency Act is a key step towards extending civil rights protections online and protecting consumers from algorithmic discrimination,” said David Brody, Managing Attorney of the Digital Justice Initiative at the Lawyers’ Committee for Civil Rights Under Law. “The unscrupulous data practices of online platforms undermine the privacy rights of users and fuel data-driven discrimination, preventing Black communities and other communities of color from realizing the benefits of the digital age. With technology and AI advancements blurring the boundaries between the online and physical worlds, AJOPTA has become a necessity to increase transparency and establish safeguards against online discrimination.”

“The development and implementation of algorithms by companies and social media platforms has continued unchecked for far too long, harming historically and intentionally marginalized communities through automated bias. The assurance of Latino safety and wellbeing lies in the transparency and regulation of these algorithms,” said Brenda Victoria Castillo, President & CEO of National Hispanic Media Coalition. “We at NHMC salute Senator Markey for his bold stride, igniting the path of justice with the reintroduction of the Algorithmic Justice and Online Platform Transparency Act.”

“For far too long, Big Tech and other technology companies have hid behind their black box algorithms to avoid accountability for their civil rights abuses,” said Lisa Gilbert, Executive Vice President of Public Citizen. “We applaud Senator Markey in taking this important first step toward transparency by requiring technology companies to provide basic information about their algorithms, and for reaffirming that discrimination has no place in our economy – and that discrimination in the digital world is no exception.”

“The Algorithmic Justice and Online Platform Transparency Act is an important first step in requiring platforms to take responsibility for their complex content algorithms,” said Sara Collins, Policy Counsel at Public Knowledge. “This bill goes well beyond providing mere transparency about how these algorithms work by requiring companies to verify that their algorithms are performing the way they are meant to perform, as well as by providing users with data portability. And instead of relying solely on governmental entities for enforcement, individuals are able to sue platforms for their discriminatory algorithms. This is the bold first step we need to hold platforms accountable for their algorithms.”

Senator Markey and Representative Matsui first introduced the Algorithmic Justice and Online Platform Transparency Act in 2021. In June 2022, Senator Markey led his Senate colleagues in a letter to Federal Trade Commission (FTC) Chair Lina Khan, urging the Commission to use the full scope of its authority to protect Black, Brown, and Indigenous consumers, communities of color, and immigrant communities from discrimination in the marketplace. In their letter, the Senators commend the FTC for initial steps it has taken to limit the negative impact of biased algorithms on communities of color and note that – with a full complement of five Commissioners – the FTC has the responsibility to use every tool at its disposal to protect consumers from the harms stemming from discriminatory online practices, biometric surveillance, consumer predation, and anti-competitive behavior. Senator Markey is also the author of the Facial Recognition and Biometric Technology Moratorium Act, which he reintroduced with Representative Pramila Jayapal (WA-07) in March.