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forms of discrimination. 9 These are extremely important factors which must be
produced.
I am currently unaware of concrete policy requirements addressing these
transparency elements. However, the foundations for meeting these needs are
already in place. In the US, The Office of Civil Rights and Civil Liberties within
the DHS is at times called to issue Civil Liberties Impact Assessments (“CLIAs”).
These reports directly addressed many of the concerns mentioned above. 10
According to the existing template for such reports, 11 they must examine how new
programs and policies will (among others) affect minorities. They also must
examine what alternatives routes could be taken to meet the same objectives while
limiting harm to civil liberties. 12 In other contexts, however, new rules would be
required to generate and later publish feedback studies.
Transparency refers to a broad array of additional factors as well. Transparency
requirements pertain to the steps taken to assure data security, retention, and tools
for access control. They further might address measures for providing data
accuracy, lack of errors and redress for harmed citizens. I choose to set all of these
issues aside. These issues are important, and indeed pertain to any general analysis
of personal or important information. Yet they probably exist in other digital
settings. Predictive modeling calls for additional and even unique dimensions of
disclosure which I chose to emphasize here.
17.4 Why Transparency?
17.4.1 General
After understanding where transparency would be needed and (very generally)
what it might entail, we now turn to the foundational normative question - why
should transparency be mandated. A call for transparency is echoed throughout the
debate concerning the implementation of predictive data mining tools for the
analysis of personal information. The need for transparency is motivated by a
variety of reasons and arguments. Every one of these theories could lead to a
different solution. To provide an overall taxonomy of transparency concerns and
9 For instance, see results of study concerning NYPD policy for stopping individuals,
which turned out to be extremely biased. Floyd, et al. v. City of New York, et al, o8 Civ.
01034 (SAS), R EPORT OF J EFFERY F AGAN (October 15, 2010), available at:
http://ccrjustice.org/files/CCR_Stop_and_Frisk_Fact_Sheet.pdf.
10 This is done either by law or within the agency. See R EPORT TO C ONGRESS ON THE
D EPARTMENT OF H OMELAND S ECURITY O FFICE FOR C IVIL R IGHTS AND C IVIL L IBERTIES
2008, at 20, available at:
http://www.dhs.gov/xlibrary/assets/crcl_annual_report_FY_2008.pdf.
11 DHS Office for Civil Rights and Civil Liberties, CLIA T EMPLATE , available at:
http://www.it.ojp.gov/documents/Civil_Liberties_Impact.pdf .
12 CLIA have yet to examine all the aspects here addressed, but it is possible that such
efforts are on their way. See Impact Assessments Underway ,
http://www.dhs.gov/xabout/structure/gc_1273849042853.shtm.
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