Automated decision-making systems are increasingly being used to make important decisions in key areas of people’s lives. The vast majority of large employers in the U.S. — including 99 percent of Fortune 500 companies — use software to evaluate job applicants, and once hired, similar software is increasingly used to continuously surveil employees. Ninety percent of landlords use screening services, which are often powered by automated systems, to evaluate potential tenants.

These automated tools are a prevalent and entrenched part of our modern economic and social systems, and there is clear evidence that they can create and enable pervasive harm. For example, the automated tools frequently used by landlords to screen potential tenants are notoriously riddled with errors, locking consumers — disproportionately Black and Latinx renters — out of accessing housing. In the context of employment, the ACLU and other civil rights and technology organizations have repeatedly raised concerns about hiring discrimination facilitated or exacerbated by these technologies. There are many examples of algorithmically driven or amplified racial discrimination, gender discrimination, and disability discrimination in this area. In financial services, discriminatory automated systems are regularly used in high-stakes areas, impacting people’s ability to access credit and mortgages.

It is clear that relying on voluntary efforts of companies building and deploying automated decision-making systems has not been and will not be sufficient to address these harms. That’s why last month, the ACLU responded to the Federal Trade Commission (FTC)’s request for comment on harms stemming from commercial surveillance and lax data security practices. We are calling on the commission to adopt binding rules to identify and prevent algorithmic discrimination.

These problems are multi-faceted. Automated decision-making systems are often built and deployed in ecosystems and institutions already marked by entrenched discrimination — including in health care, the criminal legal system, and the family regulation system. Built and evaluated by humans, automated decision-making tools are often developed using data that reflects systemic discrimination and abusive data collection practices. Attempting to predict outcomes based on this data can create feedback loops that further systemic discrimination. These compounding issues can rear their heads throughout an automated decision-making system’s design and deployment. Moreover, these systems are often operated and deployed in such a way that impacted individuals and communities might not even know that they are interacting with these systems, let alone how they work — yet could still be materially affected by the system’s decision-making process and errors.

The commission should establish tailored requirements for companies to undergo independent external audits of their automated decision-making systems. As highlighted in our comment, the commission can adopt these rules to prevent discrimination without contravening the First Amendment or Section 230 of the Communications Decency Act. The commission should consider requiring companies to adopt a comprehensive auditing framework to govern the use of automated decision-making systems and set clear standards for that framework. That’s because the harms of automated decision-making systems are best assessed as part of holistic efforts to understand the selection, design, and deployment of such tools.

These efforts should include meaningful engagement with people directly impacted by the deployment of automated decision-making systems. Companies should be required to undergo evaluations of the potential risks and harms of their algorithmic systems both before they are built and continuously if they are deployed. When these evaluations demonstrate the potential for algorithmic bias or other harms, companies can and should decommission or terminate the tools. To promote objectivity in evaluating algorithmic systems, these assessments should be carried out by independent external auditors who are provided with meaningful access to internal company systems under appropriate privacy controls.

To enact these new rules, the commission should also collaborate with external researchers, advocacy organizations, and other government agencies. For example, the ACLU has previously called for the commission to collaborate with other civil rights agencies to address technology-driven housing discrimination and employment discrimination. New requirements established by the commission can and should co-exist with standards and guidance currently being developed by other agencies, such as the National Institute of Standards and Technology’s (NIST) Artificial Intelligence (AI) Risk Management Framework. The ACLU recently also provided recommendations to NIST to ensure that the AI Risk Management Framework centers impacted communities in efforts to address the harms of AI systems.

In a digital age, protecting our civil rights and civil liberties demands that we address the harms of algorithmic systems. Strong protections that address algorithmic discrimination have the potential to benefit all people and can make AI systems work better for everyone. The commission should act now to provide much-needed protection from the harms of automated decision-making systems.

This week, the Supreme Court will hear oral arguments in Moore v. Harper, a North Carolina congressional gerrymandering case. North Carolina’s legislative leaders are appealing a ruling from the North Carolina Supreme Court striking down the state’s congressional map as an extreme partisan gerrymander. The theory advanced by the legislators, if accepted, would radically reshape the workings of American government, which is why the ACLU, the ACLU of North Carolina, and our legal partners filed an amicus brief with the Supreme Court.

American Civil Liberties Union

Moore v. Harper

After 2020 redistricting, the North Carolina Supreme Court struck down North Carolina’s legislatively-enacted congressional map as an extreme...

The Moore case hinges on a legal proposition known as the “independent state legislature theory.” The theory asserts that, when it comes to making state laws that apply to federal elections — from drawing congressional district lines, to determining the who-what-when-where of casting a ballot — only the state legislature itself has the power to set the rules. The theory claims that the state legislatures’ power is so exclusive that they can ignore the requirements of their own state constitution, including the fair districting requirements that the North Carolina Supreme Court has enforced under its own state constitutional power of judicial review.

That is not how our system works. Legislatures cannot ignore the constitutions to which they owe their very existence. They cannot act outside the law, without any checks and balances. Yet that is what the North Carolina legislators are asking the Supreme Court to give them — the power to set rules for voting and elections without state constitutional limits enforced by state courts.

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Proponents of the independent state legislature theory try to hang their hat on the U.S. Constitution, but their position is contrary to the Constitution’s original and ordinary meaning. The Framers fundamentally understood the power of “legislatures” to be drawn from and limited by written constitutions. They fought a war to break away from a runaway legislature, and they founded a new government based on the precept that legislatures and all government bodies can only act within the limitations placed on them by written constitutions ordained by the people. The suggestion that the Framers trashed that fundamental principle when it comes to legislating the rules of democracy makes no sense.

The theory is also contrary to the constitutional principle of federalism, whereby federal courts are bound to respect the various ways in which states organize their own governments, and to allow the state lawmaking process, including activity by state courts, to operate without undue interference. Deferring to the governmental arrangements set forth in state constitutions is a basic tenet of federalism. But the independent state legislature theory would require federal courts to constantly intervene in politicized conflicts between state legislatures and state courts over state constitutional matters — and then to reorder the way that the checks and balances of state government are arranged in the state’s own constitution to put a thumb on the scale for the state legislature. That arrangement would dishonor federalism principles.

There is more. If the court sides with state lawmakers in Moore, the result could have far-reaching impacts. State courts, governors, and redistricting commissions could also lose their power to invalidate, veto, or draw congressional maps. And the effects could apply well beyond gerrymandering, including dramatically changing how federal elections are conducted and giving state legislatures broad, unchecked power to set otherwise-illegal election rules.

This theory must be rejected regardless of any short-term partisan implications — remember, state courts also struck down partisan gerrymanders this year in blue states as well as red ones. In the end, it is our democracy that stands to lose if the power to set election rules is unconstrained by the rule of law and constitutional checks and balances.

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If the Supreme Court adopts the North Carolina legislators’ proposed rule in Moore, it will make it even easier for state legislatures to suppress the vote and subvert election results, and it will give both political parties the green light to draw gerrymandered election districts. Adopting the legislators’ rule would also require the court to turn its back on principles ostensibly favored by its current majority, like original meaning and federalism, which stand against the legislators’ radical and disruptive legal theory.

Moore is an opportunity for the court to reject that radicalism, and to reaffirm the common-sense rule that has been in place since the Constitution was ratified: State legislatures always act subject to the state constitutions that charter them and define their powers. Nothing less than that basic principle of American constitutional government is at stake.

Immigration has long been used as a wedge issue during election years, and this year was no different. Many candidates peddled falsehoods and racist tropes about an “invasion” to instill fear and win support for their campaigns. America’s Voice, an immigration advocacy organization, identified over 3,200 different paid communications that employed anti-immigrant attacks. And that’s not to mention the cynical publicity stunts by governors who attempted to sow division by placing asylum seekers on flights and buses to communities like Martha’s Vineyard, showing politics at its worst.

However, big spending on anti-immigrant ads largely flopped as a political strategy this election cycle, and immigrants’ rights victories across multiple states showed that a bipartisan pathway toward immigration reform not only exists, but would be popular with voters.

In the two states with high-profile immigration ballot measures, voters rejected fear-based politics.

Massachusetts voters resoundingly upheld a new law that allows undocumented immigrants to apply for driver’s licenses, a key measure for both racial equity and public safety. A broad coalition of labor, faith, and immigrant rights organizations, along with law enforcement officials like sheriffs and district attorneys, endorsed the new law, and voters ultimately reaffirmed their support for the driver’s licenses for all policy by voting yes on Question 4, despite a divisive attempt to repeal it.

Arizona voters approved a bipartisan ballot measure, Proposition 308, that allows Arizona students to pay the reduced in-state tuition rates for public colleges and universities regardless of immigration status. This affirmative endorsement of immigrants’ rights represents a watershed moment in a state once known for anti-immigrant officials like Joe Arpaio. As in Massachusetts, the ballot measure in Arizona garnered support across the ideological spectrum, bringing conservatives and progressives, and business and labor groups together to lead the coalition.

While many immigrants’ rights champions in Congress had a good night, several candidates who promoted the Great Replacement theory were defeated. In two bellwether House districts, a candidate who called for a “10-year moratorium on immigration” in order to “lock down our country” and another whose campaign had a heavy focus on the false connection between immigration and drug trafficking both lost their races. While some anti-immigrant candidates saw victories in their states, by and large, many voters across the country rejected the politics of division.

The election also saw voters reject programs that entangle local law enforcement with Immigration Customs and Enforcement (ICE). Residents in two Massachusetts counties backed candidates for sheriff who opposed working with ICE’s 287(g) program, which is notorious for enabling racial profiling and other abuses, and rejected their opponents who supported collaboration with ICE, including one with a record of using violence against immigrants. In North Carolina, a former sheriff who had previously worked with ICE’s 287(g) program failed in his comeback attempt. Similarly, two House candidates who championed the 287(g) program and vocally opposed sanctuary legislation also lost their races.

American Civil Liberties Union

Stop ICE From Empowering Racist Sheriffs: End 287(g) Agreements | American Civil Liberties Union

For years the 287(g) program has allowed for sheriffs to target and attack immigrants in their communities.

On the heels of these election results, there is a unique chance to enact policy change. While there are many issues that need to be addressed, Congress can start by:

In this lame duck session, members of Congress have the opportunity to finally provide relief to people in legal limbo. Two-thirds of voters support Congress creating a path to permanent legal status for Dreamers, and 63 percent of voters support creating a pathway to citizenship for undocumented individuals, according to the 2022 Midterm Voter Election Poll conducted by the African American Research Collaborative. Congress should see this broad support as a message that they must work with their colleagues across party lines to pass legislation that creates a roadmap to citizenship.

A federal court recently struck down the Title 42 ban, the cruel and unlawful policy which used public health as a false excuse to block so many people from exercising their right to seek asylum, instead sending them straight back into harm’s way. This ruling must finally bring an end to the Title 42 ban. If some members of Congress attempt to override the courts and extend the policy, Congress and the Biden administration should reject such efforts and instead focus on rebuilding a humane, fair, and orderly asylum system.

American Civil Liberties Union

Five Things to Know About the Title 42 Immigrant Expulsion Policy | News & Commentary | American Civil Liberties Union

Since March 2020, the government has misused the order to kick out people seeking asylum more than 1.7 million times.

The Biden administration can also show up for immigrant communities by:

The Department of Homeland Security (DHS) should wind down ICE programs that tap state and local law enforcement agencies to assist in deportations. Many offices involved in the 287(g) program have sordid records of civil rights abuses, including racial profiling and inhumane detention practices, and should not be partners of the Biden administration

The Biden administration inherited immense challenges as a result of former President Trump’s family separation policy, and acted quickly to create the Family Reunification Task Force. The task force must remain diligent in finding still-missing families, and the administration must also deliver safety and care for affected families. This begins by allowing deported families to reunite in the U.S., protecting them from deportation once here, and providing damages and assistance, including trauma-informed care, to begin to repair the tremendous harms done to them. Moreover, the administration must make sure it does not repeat the same cruel policies that led to family separation in the first place.

DHS should follow through with President Biden’s pledge to end for-profit immigrant detention and terminate contracts that waste taxpayer dollars while filling the coffers of private prison corporations.

Despite terminating the Muslim and African Bans, many people are still impacted by the remnants of these policies. This includes thousands of Diversity Visa winners who had their visas revoked during the Trump administration as a result of their racist bans. It’s imperative that anyone whose Diversity Visa was blocked or revoked because of these bans have their visa reinstated.

When voters are directly asked questions related to immigration on the ballot, they will support their immigrant neighbors, colleagues, and friends. When voters can be this bold, they are demanding that our elected officials and the Biden administration be bold as well.