FTC Says Racist Algorithms Could Get You In a Lot of Trouble

Illustration for article titled FTC Says Racist Algorithms Could Get You In a Lot of Trouble

Photo: Bridget Bennett (Getty Images)

Tentatively excellent news! The FTC has declared that it is serious about racist algorithms, and it will hold businesses legally accountable for using them. In a friendly-reminder type announcement today, it said that businesses selling and/or using racist algorithms could feel the full force of their legal might.

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“Fortunately, while the sophisticated technology may be new, the FTC’s attention to automated decision making is not,” FTC staff attorney Elisa Jillson wrote in a statement on Tuesday, adding that the agency “has decades of experience” enforcing laws that racist algorithms violate. They write that selling and/or using racially biased algorithms could qualify as unfair or deceptive practices under the FTC Act. They also remind businesses that racial discrimination (by algorithm or human) could violate the Fair Credit Reporting Act and the Equal Credit Opportunity Act.

The effects of algorithmic racial bias and automated white favoritism spill out far beyond the types of products Facebook serves us. Racist algorithms have been shown to disproportionately deny Black people recommendations for specialized healthcare programs. They have priced out higher interest rates on mortgages for Black and Latinx people than whites with the same credit scores. They have drastically exaggerated Black defendants’ risk of recidivism, which can impact sentencing and bail decisions. They have encouraged police to target locations and arrest records which perpetuate further disproportionate arrests in Black communities. The list goes on.

Government use of racist algorithms makes the “selling” part especially important. The FTC can’t try the cops, but it might be able to go after a company that misrepresented its tool as race-neutral.

Given the endless churn of stories about the racist results of facial recognition, it could seem that the FTC is equipping itself to practically annihilate the technology. In an email to Gizmodo, an FTC spokesperson said that a seller could be guilty of “deceptive” practices if it “misleads consumers (whether they are businesses or individuals) about (for example) what an algorithm can do, the data it is built from, or the results it can deliver, the FTC may challenge that as a deceptive practice.”

That’s a big deal! Most algorithms that sort through personal data do deliver discriminatory results, and companies tend not to admit it. But this is complicated by the fact that it’s often hard to prove the results because companies also tend to avoid letting us look under the hood, forcing investigative journalists and researchers to piece together clues after the damage is done. (See most of the links above.)

That caginess would likely stall an FTC complaint against an “unfair” practice. The commission would have to perform the time-consuming chore of exposing proof that the algorithm itself directly harms consumers. (In the spokesperson’s example: “compromises consumers’ ability to get credit, housing, jobs”.)

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In other words, no one knows the extent of racist algorithms’ damage, and the FTC urges businesses to hold themselves accountable or the FTC “will do it for you,” read: the FTC will come for you, even if you’re a small potatoes Honda dealership.

Businesses will still lie, they know, so the announcement also reminds us that the FTC filed a complaint against Facebook alleging, among other things, that the company knowingly deceived users about facial recognition. This resulted in a settlement of $5 billion, which the FTC had celebrated as “history-making” but Democrats complained was wildly insufficient to make Facebook feel any pain.

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On a more hopeful note, the FTC could spread some of the regulatory responsibility around. The spokesperson noted that the Consumer Financial Protection Bureau also enforces the Fair Credit Reporting Act and the Equal Credit Opportunity Act. The Department of Health and Human Services and the Department of Justice, too, could pursue discrimination cases.

Here’s hoping they follow through and drive a hard bargain. People are getting sick and locked up.

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Joss Whedon’s Lawyers Deny Ray Fisher’s Newest Allegations

Joss Whedon telling people to vote on MTV ahead of the 2016 election. Fun times.

Joss Whedon telling people to vote on MTV ahead of the 2016 election. Fun times.
Photo: Brian Ach/Getty (Getty Images)

When Ray Fisher came forward with allegations earlier this year saying Joss Whedon created a toxic, abusive work environment on the set of Justice League, within a month, Warner Bros. launched an internal investigation into the matter. The studio then claimed Fisher refused to cooperate. There’s now another chapter to all of this.

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As some of Fisher’s colleagues—like Jason Momoa—stood by him and news broke that he was shooting new scenes for Zack Snyder’s Justice League rehash, it seemed for a while as if Warner Bros. considered the matter solved, simply because both sides made their statements regarding the possibility of Whedon having mistreated an actor (even if Whedon himself had not spoken out publicly). But this week, in a new interview with Forbes, Fisher doubled down on his position and spelled out the details of one alleged incident in particular that left him angered.

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While this specific quote has since been removed from Forbes’ article since it first published (the only explanation given: “This story has been updated from its original version, including the wording of the original headline”), Fisher explained that, at some point, he was “informed that Joss had ordered that the complexion of an actor of color be changed in post-production because he didn’t like the color of their skin tone.” This quote, however, remains: “The erasure of people of color from the 2017 theatrical version of Justice League was neither an accident nor coincidence.”

The sudden removal of the quote from Forbes’ story raises the obvious question as to why, particularly because at this point, Fisher’s made it abundantly clear that he had issues with the director and he intends to air them out following Warner Bros.’ newly reopened internal investigation. Fisher told Forbes it’s being overseen by a new third-party investigator, the same person who delved into accusations leveled against former Warner Bros. CEO Kevin Tsujihara.

While Whedon and his team have been silent in response to Fisher’s allegations, the Forbes story seemingly prompted a response from his legal representation that questioned the veracity of Fisher’s claims, shared by Forbes and the Hollywood Reporter. They cited doubt over the fact that Fisher did not name specifically who told him about the manipulation of the unnamed actor’s skin tone and that Fisher admitted to only learning about said color manipulation after the fact. Whedon’s lawyers also went on to point out the color correction is a rather common aspect of the larger film production process, something that especially holds true for Justice League’s distinctly dark, melodramatic color palette.

“As is standard on almost all films, there were numerous people involved with mixing the final product, including the editor, special effects person, composer, etc. with the senior colorist responsible for the final version’s tone, colors, and mood,” Whedon’s representation said. “This process was further complicated on this project by the fact that Zack [Snyder] shot on film, while Joss shot on digital, which required the team, led by the same senior colorist who has worked on previous films for Zach, to reconcile the two.”

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Just to recap, Fisher’s alleging that he heard from another party that Whedon demanded alterations be made to an actor of color’s skin tone in post-production out of a distaste for their complexion, while Whedon’s team both denies this and insists that whatever color correction was done on Justice League was completely standard procedure. It’s interesting that the Forbes interview is what finally prompted Whedon (through his lawyer) to refute claims against him even though Fisher’s been speaking about the supposed mistreatment for months, and the actor is well aware of the potential jeopardy he’s putting his career in by speaking out.

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At this point, it’s Fisher’s word against Whedon’s, and it’ll be up to Warner Bros.’ investigator to sift through whatever details and information both parties provide in order to come to a conclusion about its next steps. That being said, there are a number of facts about Justice League’s production that stand out because of the allegations against Whedon.

As Forbes notes, the diversity baked into Snyder’s initial vision for the film was reduced significantly in the final product—which Whedon oversaw—through the outright cutting or reduction in size of roles given to actors of color. In addition to Joe Morton’s role as Cyborg’s father Silas Stone being made significantly smaller, Karen Bryson’s Ellinore Stone, Kiersey Clemons’ Iris West, and Zheng Kai’s Ryan Choi were stripped from the film entirely. Forbes writes, “According to representatives for Whedon, these decisions were made prior to his taking control of the project.”

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From Fisher’s perspective, the lack of response from any of the people he’s called out speaks volumes.

“In a business as notoriously litigious as Hollywood, the fact that I haven’t received so much as a cease and desist letter should tell you something,” Fisher told Forbes. “The people involved know I’m telling the truth. They’re just looking for a way to mitigate blowback for themselves.”

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Beyond just Whedon, Fisher similarly called out Warner Bros. power players like Geoff Johns, Jon Berg, and the company’s acting chairman Toby Emmerich, all of whom Fisher says participated in “blatantly racist conversations” that took place before Justice League’s first reshoots that brought Whedon onto the project. Those three individuals did not respond to Forbes’ requests for comment.

“You really have to ask yourself, what’s more plausible—that I would purposely torpedo my career by making statements about powerful figures in Hollywood, that, if untrue, could be easily refuted. Or a handful people in positions of power said and did terrible things in order to maintain that power during a massive corporate merger.”

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We’ll bring you more updates as they become publicly available.

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