Georgetown Law
Technology Review

During the Georgetown Law Technology Review’s 2022 Biennial Symposium, a distinguished panel of speakers evaluated data governance and the issues arising from differential access to data.

The speakers focused on reform in three major areas: (a) the need for discussion among stakeholders; (b) increasing oversight in data governance; and (c) implementing legislation aimed at increasing transparency in digital election ads. To implement these reforms, Congress should look to industries where data-sharing is being done in a balanced, efficient way for guidance in these areas.

The Need for Discussion Among Stakeholders

Most speakers agreed that change starts with actionable discussion among stakeholders to increase accessibility and transparency in data-sharing. This would be the first step towards passing legislation that promotes these goals.

To illustrate the need for this discussion, Professor Margaret Kwoka, from the Ohio State University Moritz College of Law, pointed to the current challenges individuals face with Freedom of Information Act (FOIA) requests. Kwoka noted most people use FOIA requests to investigate why a government action, like a claim or denial of benefit, has proceeded against them. But because FOIA requests take so long to process, in many cases, individuals are unable to defend themselves against claims that require speedy responses. Opening the dialogue between stakeholders—and holding the government accountable in taking a proactive approach to facilitate these discussions—will inspire updated laws that address data governance and differential access.

Oversight in Data Governance: The High Priests’ Conundrum

Professor Julia Lane, from the NYU Wagner Graduate School of Public Service, explained what she called the “high priests’ conundrum,” where policymakers’ current decision-making process in this area mirrors that of a few high priests making decisions without external input. To exemplify the need for oversight on these “high priests,” Lane described the intricacies of the data-stitching process. Data that the government currently uses is stitched together from different platforms, making it paramount that each input is correctly stitched together. Otherwise, any error results in imprecise inferences that affect large groups of people. On this note, Professor Margo Anderson, from the University of Wisconsin-Milwaukee, added that there is a need to improve the processes currently used to collect data. Current mechanisms, like those implemented in the census, are decades old and ill-equipped to handle increasing volumes of data or its fast-changing nature. An improved, balanced system that quickly gives access to accurate data is long overdue, and independent external oversight on current mechanisms could illuminate current flaws and then provide options for improvement.

Legislation for Increased Transparency in Digital Election Ads

Laura Edelson, a PhD candidate in Computer Science at NYU’s Tandon School of Engineering, stressed that current online election ads do not have sufficient transparency requirements when it comes to electoral disclosures, especially when contrasted with the Federal Election Commission’s transparency requirements for more traditional advertisement mediums. Edelson explained that platforms like Facebook, which receive significant electoral spending and host      campaign      ads, are closed platforms. This, in turn, prevents third parties from adequately auditing the content of online political ads, the identities of the financiers, and related expenditure levels. As noted above, this has gained public attention since it directly contrasts the transparency requirements applicable to equivalent “electioneering communications” in traditional media.

This underscores the need for a new or refreshed transparency mandate covering digital election ads. Since election integrity is at the center of United States democracy, the “high priests” should swiftly enact laws that promote transparency in online electoral disclosures. When considering what is at stake, any improved mandate should at least incorporate practical means to (i) properly monitor electoral disclosures, or the lack thereof, in digital ads, and (ii) clearly define actionable penalties when covered entities are non-compliant.

Looking Ahead

Current government mechanisms for data access need to be adjusted. The government should consider alternative models to enforce and appeal decisions on FOIA requests, perhaps through an independent agency that acts as an external oversight body to individual’s data access. This would help to initiate conversation around data-sharing systems and spur legislation. While there are currently competing legislative proposals that address these issues, like The Honest Ads Act, none have materialized into law. Congress should look to industries where data-sharing is being done in a balanced, efficient way for guidance. For example, the government could consider the medical research field. There, research parties, patients, and doctors share data voluntarily with informed consent. Although reform in some industries will be more challenging than others, there are some clear places to start, like improving the transparency of electoral disclosures in digital advertising.