The Department of Justice should modernize the enforcement of Title VI of the Civil Rights Act to guide effective corrective action for algorithmic systems that produce discriminatory outcomes with regard to federal benefits. To do so, the Department of Justice should clarify the definition of “algorithmic discrimination” in the context of federal benefits, establish systems to identify which federally funded public benefits offices use machine-learning algorithms, and secure the necessary human resources to properly address algorithmic discrimination. This crucial action would leverage a demonstrable, growing interest in regulating algorithms that has bloomed over the past year via policy actions in both the White House and Congress but has yet to concretely establish an appropriate enforcement mechanism for acting on instances of demonstrated algorithmic harm. 

Challenge and Opportunity

Algorithmic systems are inescapable in modern life. They have become core elements of everyday activities, like surfing the web, driving to work, and applying for a job. It is virtually impossible to go through life without encountering an algorithmic system multiple times per day.

As machine-learning technologies have become more pervasive, they have also become gatekeepers for crucial resources, like accessing credit, receiving healthcare, securing housing, and getting a mortgage. Both local and federal governments have embraced algorithmic decision-making to determine which constituents are able to access key services, often with little transparency, if any, for those who are subject to such decision-making.

When it comes to federal benefits, imperfections in these systems scale significantly. For example, the deployment of flawed algorithmic tools led to the wrongful termination of Medicaid for 19% of beneficiaries in Arkansas, the wrongful termination of Social Security income for thousands in New York, wrongful termination of $78 million worth of Medicaid and Supplemental Nutrition Assistance Program benefits in Indiana, and erroneous unemployment fraud charges for 40,000 people in Michigan. These errors are particularly harmful to low-income Americans for whom access to credit, housing, job opportunities, and healthcare are especially important.

Over the past year, momentum for regulating algorithmic systems has grown, resulting in several key policy actions. In February 2022, Senators Ron Wyden and Cory Booker and Representative Yvette Clarke introduced the Algorithmic Accountability Act. Endorsed by AI experts, this bill would have required deployers of algorithmic systems to conduct and publicly share impact assessments of their systems. In October 2022, the White House released its Blueprint for an AI Bill of Rights. Although not legally enforceable, this robust rights-based framework for algorithmic systems was developed with a broad coalition of support through an intensive, yearlong public consultation process with community members, private sector representatives, tech workers, and policymakers. Also in October 2022, the AI Training Act was passed into law. The legislation requires the development of a training curriculum covering core concepts in artificial intelligence for federal employees in a limited range of roles, primarily those involved in procurement. Finally, January 2023 saw the introduction of the NIST AI Risk Management Framework to guide how organizations and individuals design, develop, deploy, or use artificial intelligence to manage risk and promote responsible use.

Collectively, these actions demonstrate clear interest in preventing harm caused by algorithmic systems, but none of them provide clear enforcement mechanisms for federal agencies to pursue corrective action in the wake of demonstrated algorithmic harm.

However, Title VI of the Civil Rights Act offers a viable and legally enforceable mechanism to aid anti-discrimination efforts in the algorithmic age. At its core, Title VI bans the use of federal funding to support programs (including state and local governments, educational institutions, and private companies) that discriminate on the basis of race, color, or national origin. Modernizing the enforcement of Title VI, specifically in the context of federal benefits, offers a clear opportunity for developing and refining a modern enforcement approach to civil rights law that can respond appropriately and effectively to algorithmic discrimination. 

Plan of Action

Fundamentally, this plan of action seeks to:

• Clarify how “algorithmic bias” is defined, specifically in the context of federal benefits.
• Identify where and when public benefits systems use machine-learning algorithms.
• Equip federal agencies with authority and skill sets to address algorithmic discrimination.

Clarify the Framework for Algorithmic Bias in Federal Benefits

Recommendation 1. Fund the Department of Justice (DOJ) to develop a new working group focused specifically on civil rights concerns around artificial intelligence.

The DOJ has already requested funding for and justified the existence of this unit in its FY2023 Performance Budget. In that budget, the DOJ requested $4.45 million to support 24 staff. 

Clear precedents for this type of cross-sectional working group already exist within the Department of Justice (e.g., the Indian Working Group and LGBTQI+ Working Group). Both of these groups contain members of the 11 sections of the Civil Rights Division to ensure a comprehensive strategy for protecting the civil rights of Indigenous peoples and the LGBTQ+ community, respectively. The pervasiveness of algorithmic systems in modern life suggests a similarly broad scope is appropriate for this issue.

Recommendation 2. Direct the working group to develop a framework that defines algorithmic discrimination and appropriate corrective action specifically in the context of public benefits.

A clear framework or rubric for assessing when algorithmic discrimination has occurred is a prerequisite for appropriate corrective action. Despite having a specific technical definition, the term “algorithmic bias” can vary widely in its interpretation depending on the specific context in which an automated decision is being made. Even if algorithmic bias does exist, researchers and legal scholars have made the case that biased algorithms may be preferable to biased human decision-makers on the basis of consistency and the relative ease of behavior change. Consequently, the DOJ should develop a context-specific framework for determining when algorithmic bias leads to harmful discriminatory outcomes in federal benefits systems, starting with major federal systems like Social Security and Medicare/Medicaid. 

As an example, the Brookings Institution has produced a helpful report that illustrates what it means to define algorithmic bias in a specific context. Cross-walking this blueprint with existing Title VI procedures can yield guidelines for how the Department of Justice can notify relevant offices of algorithmic discrimination and steer corrective action.

Identify Federal Benefits Systems that Use Algorithmic Tools

Recommendation 3. Establish a federal register or database for offices that administer federally funded public benefits to document when they use machine-learning algorithms.

This system should specifically detail the developer of the algorithmic system and the office using said system. If possible, descriptions of relevant training data should be included as well, especially if these data are federal property. Consider working with the Office of Federal Contract Compliance Programs to secure this information from current and future government contractors within the federal benefits domain.

In terms of cost, previous budget requests for databases of this type have ranged from $2 million to $5 million.

Recommendation 4. Provide public access to the federal register.

Making the federal register public would provide baseline transparency regarding the federal funding of algorithmic systems. This would facilitate external investigative efforts to identify possible instances of algorithmic discrimination in public benefits, which would complement internal efforts by directing limited federal staff bandwidth towards cases that have already been identified. The public-facing portion of this registry should be structured to respecting appropriate privacy and trade secrecy restrictions

Recommendation 5. Link the public-facing register to a public-facing form for submitting claims of algorithmic discrimination in the context of federal benefits.

This step would help channel public feedback regarding claims of algorithmic discrimination with a sufficiently high threshold to minimize frivolous claims. A well-designed system will ask for evidence and data to justify any claim of algorithmic discrimination, allowing federal employees to prioritize which claims to pursue.

Equip Agencies with Necessary Resources for Addressing Algorithmic Discrimination

Recommendation 6. Authorize funding for technical hires in enforcement arms of federal regulatory agencies, including but not limited to the Department of Justice.

Effective enforcement of anti-discrimination statutes today requires technical fluency in machine-learning techniques. In addition to the DOJ’s Civil Rights Division (see Recommendation 1), consider directing funds to hire or train technical experts within the enforcement arms of other federal agencies with explicit anti-discrimination enforcement authority, including the Federal Trade Commission, Federal Communications Commission, and Department of Education.

Recommendation 7. Pass the Stopping Unlawful Negative Machine Impacts through National Evaluation Act.

This act was introduced with bipartisan support in the Senate at the very end of the 2021–2022 legislative session by Senator Rob Portman. The short bill seeks to clarify that civil rights legislation applies to artificial intelligence systems and decisions made by these systems will be liable to claims of discrimination under said legislation, including the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination Act of 1975, among others. Passing the bill is a simple but effective way to indicate to federal regulatory agencies (and those they regulate) that artificial intelligence systems must comply with civil rights law and affirms the federal government’s authority to ensure they do so.

Conclusion

On his first day in office, President Biden signed an executive order to address the entrenched denial of equal opportunities for underserved communities in the United States. Ensuring that federal benefits are not systematically denied via algorithmic discrimination to low-income Americans and Americans of color is crucial to successfully meeting the goals of that order and the rising chorus of voices who want meaningful regulation for algorithmic systems. The authority for such regulation in the context of federal benefits already exists. To ensure that authority can be effectively enforced in the modern age, the federal government needs to clearly define algorithmic discrimination in the context of federal benefits, identify where federal funding is supporting algorithmic determination of federal benefits, and recruit the necessary talent to verify instances of algorithmic discrimination.

Social justice, environmental justice, and climate justice are all digital justice. Digital injustice arises from the fact that 21 million Americans are not connected to the internet, and seven percent of Americans do not use it, even if they have access to it. This lack of connectivity can lead to the loss of life, disrupted communities, and frayed social cohesion during natural disasters, as people are unable to access life-saving information and preventive tools found online.

Digital injustice primarily affects poor rural communities and African American, Indigenous, and other communities of color. These communities are also overexposed to climate risk, economic fragility, and negative public health outcomes. Digital access is a pathway out of this overexposure. It is a crucial aspect of the digital justice conversation, alongside racial equity and climate resilience. 

Addressing this issue requires a long-term commitment to reimagining frameworks, but we can start by helping communities and policymakers understand the problem. Congress and the Biden-Harris Administration should embrace and support the creation of a Digital Justice Policy Framework that includes:

• training and access to information for divested communities
• within-government climate and digital literacy efforts
• a public climate and digital literacy campaign

Challenges and Opportunities 

The internet has become a crucial tool in preparing for and recovering from ecological emergencies, building wealth, and promoting community connections. However, the digital divide has created barriers to accessing these resources for millions of people, particularly low-income individuals and people of color. The lack of access to the internet and technology during emergencies deepens existing vulnerabilities and creates preventable losses of life, displacement, and disrupted lives.

Digital divestment, disasters, and poverty overlap in dangerous ways that reveal “inequities and deepen existing vulnerability… In the United States, roughly 21% of children live in poverty and without consistent access to food. Cascading onto poverty and vulnerability to large-scale events like pandemics and other disasters is the lack of access to the Internet and the education and opportunity that comes with it.”

A recent report about digital divestment in rural communities shows that access to internet infrastructure, devices, and information is critical to economic development. Yet rural communities are more likely to have no device in the home—26.4% versus 20% of the broader United States. Access to broadband is even lower, as most rural counties have just one or no provider. Geography often challenges access to public services. 

To tackle this issue, we must reimagine the use of data to ensure that all communities have access to information that reduces vulnerability and strengthens resilience. One pathway to reimagining data in a meaningful way is laid out in a National Academies of Science consensus study report, “Communities need information that they can effectively use in making decisions and investments that reduce the vulnerability and strengthen the resilience of their residents, economy, and environment. Assembling and using that information requires three things. First, data, while often abundantly available to communities, can be challenging for local communities and users to navigate, access, understand, and evaluate relative to local needs and questions. Second, climate data needs to be vetted and translated into information that is useful at a local level. Finally, information that communities receive from other sources needs to reflect the challenges and opportunities of those communities to not just be useful but also used.” Once communities are effectively connected and skilled up, they can use the information to make effective decisions.

The Government Accountability Office (GAO) looked into the intersection of information and justice, releasing a study on the fragmented and overlapping broadband plan and funding. It recommended a national strategy to help scale these efforts across communities and focus agency efforts on communities in need that includes ^recommendations for education, workforce training, and evidence-based policymaking.

Communities can be empowered to take a data-driven journey from lack of access to resources to using innovative concepts like regenerative finance to build resiliency. With the right help, divested communities can co-create sustainable solutions and work toward digital justice. The federal government should leverage initiatives like the Justice 40 initiative, aimed at undoing past injustices and divestment, to create opportunities for communities to gain access to the tools they need and understand how to use them.

Plan of Action

Executive branch agencies and Congress should initiate a series of actions to establish a digital justice framework. The first step is to provide education and training for divested communities as a pathway to participate in digital and green economies. 

1. Funding from recent legislation and agency earmarks should be leveraged to initiate education and training targeted at addressing historical inequities in the localization, quality, and information provided by digital infrastructure:
   • The Infrastructure Investment and Jobs Act (IIJA) allocates $65 billion to expand the availability of broadband Internet access. The bulk of that funding is dedicated to access and infrastructure. Under the National Telecommunications and Information Administration’s (NTIA) Broadband Equity, Access, and Deployment (BEAD) Program, there is both funding and broad program language that allows for upskilling and training. Community leaders and organizations need support to advocate for funding at the state and local levels.  
2. The Environmental Protection Agency’s (EPA)¹ environmental education fund, which traditionally has $2 million to $3.5 million in grant support to communities, is being shaped right now. Its offerings and parameters can be leveraged and extended without significant structural change. The fund’s parameters should include elements of the framework, including digital justice concepts like climate, digital, and other kinds of literacy programs in the notices of funding opportunities. This would enable community organizations that are already doing outreach and education to include more offerings in their portfolios. 

To further advance a digital justice framework, agencies receiving funding from IIJA and other recent legislative actions should look to embed education initiatives within technical assistance requests for proposals and funding announcements. Communities often lack access to and support in how to identify and use public resources and information related to digital and climate change challenges. One way to overcome this challenge is to include education initiatives as key components of technical assistance programs. In its role of ensuring the execution of budget proposals and legislation, the Office of Budget and Management (OMB) can issue guidance or memoranda to agencies directing them to include education elements in notices of funding, requests for proposals, and other public resources related to IIJA, IRA and Justice 40. 

One example can be found in the Building Resilient Infrastructure and Communities (BRIC) program. In addition to helping communities navigate the federal funding landscape, OMB could require that new rounds of the program include climate or resilience education and digital literacy. The BRIC program can also increase its technical assistance offerings from 20% of applicants to 40%, for example. This would empower recipients to navigate the fuller landscape of using science to develop solutions and then successfully navigate the funding process. 

Another program that is being designed at the time of this writing is the Environmental and Climate Justice Grant Program, which contains $3 billion in funding from the IRA. There is a unique opportunity to draft requests for information, collaboration, or proposals to include ideas for education and access programs to democratize critical information by teaching communities how to access and use it.

An accompanying public education campaign can make these ideas sustainable. Agencies should engage with the Ad Council on a public education campaign about digital justice or digital citizenship, social mobility, and climate resilience. As an example, in 2022 FEMA funded a preparation initiative directed at Black Americans and disasters with the Ad Council that discussed protecting people and property from disasters across multiple topics and media. The campaign was successful because the information was accessible and demonstrated its value. 

Climate literacy and digital citizenship training are as necessary for those designing programs as they are for communities. The federal agencies that disburse this funding should be tasked with creating programs to offer climate literacy and digital citizenship training for their workforce. Program leaders and policy staff should also be briefed and trained in understanding and detecting data collection, aggregation, and use biases. Federal program officers can be stymied by the lack of baseline standards for federal workforce training and curricula development. For example, FEMA has a goal to create a “climate literate” workforce and to “embed equity” into all of its work—yet there is no evidence-based definition nor standard upon which to build training that will yield consistent outcomes. Similar challenges surface in discussions about digital literacy and understanding how to leverage data for results.² Within the EPA, the challenge is helping the workforce understand how to manage the data it generates, use it to inform programs, and provide it to communities in meaningful ways. Those charged with delivering justice-driven programs must be provided with the necessary education and tools to do so. 

FEMA, like the EPA and other agencies, will need help from Congress. Congress should do more to support scientific research and development for the purpose of upskilling the federal workforce. Where necessary, Congress must allocate funding, or adjust current funding mechanisms, to provide necessary resources. There is $369 billion for “Energy Security and Climate Change” in the Inflation Reduction Act of 2022 that broadly covers the aforementioned ideas. Adjusting language to reference programs that address education and access to information would make it clear that agencies can use some of that funding. In the House, this could take the form of a suspension bill or addition as technical correction language in a report. In the Senate, these additions could be added as amendments during “vote-o-rama.”

For legislative changes involving the workforce or communities, it is possible to justify language changes by looking at the legal intent of complementary initiatives in the Biden-Harris Administration. In addition to IIJA provisions, policy writers can use parts of the Inflation Reduction Act and the Justice 40 initiative, as well as the climate change and environmental justice executive orders, to justify changes that will provide agencies with direction and resources. Because this project is at the intersection of climate and digital justice, the jurisdictional alignments would mainly be with the United States Department of Commerce, the National Telecommunications and Information Administration, the United States Department of Agriculture, EPA and FEMA.

Recommendations for federal agencies:

• Make public literacy about digital and climate justice a national priority. (This includes government agency personnel as well as residents and citizens.)
• Train agency program officers charged with administering programs on the impacts and solutions for digital justice.
• To empower rural and BIPOC communities to access programs consistently, require plain language drafts or section-by-section explainers for scientific and financial information related to digital justice.
• Create and require a set of “accessible research” guidelines for research institutions that receive federal funding to ensure their work is usable in communities. 

Recommendations for Congress:

• Provide research dollars to help agencies develop evidence-based benchmarks for climate, data, and digital literacy programs.
• Set aside federal workforce development funds to build government-wide capacity in these areas.
• Make technical assistance for small municipalities and small community-based organizations a required part of any new digital justice-related statutes and funding mechanisms.

Conclusion

Digital justice is about a deeper understanding of the generational challenges we must confront in the next few years: the digital divide, climate risk, racial injustice, and rural poverty. Each of these connects back to our increasingly digital world and efforts to make sure all communities can access its benefits. A new policy framework for digital justice should be our ultimate goal. However, there are present opportunities to leverage existing programs and policy concepts to create tangible outcomes for communities now. Those include digital and climate literacy training, public education, and better education of government program leaders as well as providing communities and organizations with more transparent access to capital and information.

Summary

Exclusionary zoning is damaging equity and inhibiting growth and opportunity in many parts of America. Though the Supreme Court struck down expressly racial zoning in 1917, many local governments persist with zoning that discriminates against low-wage families — including many families of color.¹ Research shows that has connected such zoning to racial segregation, creating greater disparities in measurable outcomes.²

By contrast, real-world examples show that flexible zoning rules — rules that, for instance, that allow small groups to opt into higher housing density while bypassing veto players, or that permit some small areas to opt out of proposed zoning reforms — can promote housing fairness, supply, and sustainability. Yet bureaucratic and knowledge barriers inhibit broad implementation of such practices. To facilitate zoning reform, the Department of Housing and Urban Development should (i) draft model smarter zoning codes, (ii) fund efforts to evaluate the impact of smarter zoning practices, (iii) support smarter zoning pilot programs at the state and local levels, and (iv) coordinate with other federal programs and agencies on a whole-of-government approach to promote smarter zoning.

Challenge and Opportunity

Economists across the political spectrum agree that restrictive zoning laws banning inclusive, climate-friendly, multi-family housing have made housing less affordable, increased racial segregation and damaged the environment. Better zoning would enable fairer housing outcomes and boost growth across America.

The Biden-Harris administration is actively working to eliminate exclusionary zoning in order to advance the administration’s priorities of racial justice, respect for working-class people, and national unity. But in many states with unaffordable housing, local politics have made zoning reform painfully slow and/or precarious. In California, for instance, zoning-reform activists have garnered significant victories. But a recently launched petition to limit state power over zoning might undo some of the progress made so far. There is an urgent need for strategies to overcome political gridlock limiting or inhibiting zoning reform at the state and local levels.

Fortunately, a suite of new smarter zoning techniques can achieve needed reforms while alleviating political concerns. Consider Houston, TX, which faced resistance in reducing suburban minimum lot sizes to allow more housing. To overcome political obstacles, the city gave individual streets and blocks the option to opt out of the proposed reform. That simple technique reduced resistance and allowed the zoning measure to pass. The powerful incentives from increased land value meant that although opt outs reached nearly 50% in one neighborhood, they were rare in many others.³ The American Planning Association similarly published a proposal to allow opt-ins for upzoning at a street-by-street level — a practice that would allow small groups to bypassing those who currently block reform in order capture the huge incentives of upzoning.

In fact, opt-ins and opt-outs are proven methods of overcoming political obstacles in other policy fields, including parking reform and “play streets” in urban policy. Opt-ins and opt-outs reduce officials’ and politicians’ concerns that a vocal and unrepresentative group will blame them for reforms. While reformers may fear that allowing exemptions may weaken zoning reforms, the enormous increase in land value created by upzoning in unaffordable areas provides powerful incentives for small groups of homeowners to choose upzoning of their own lots. And by offering a pathway to circumvent opposition, flexible smarter zoning reforms can expedite construction of abundant new affordable housing that substantially improves equity, opportunity, and quality of life for working-class Americans. 

Absent action by HUD to encourage trials of innovative techniques, the pace of reform will continue to be much slower than it needs to be. Campaigners at state and local government level will continue to face opposition and setbacks. The pace of growth and innovation will be damaged, as bad zoning continues to block the benefits of mobility and opportunity. And disadvantaged minorities will continue to suffer the most from unjust and exclusionary zoning rules.xc

Plan of Action

The Department of Housing and Urban Development (HUD) should take the following steps to facilitate zoning reform in the United States: 

1. Create a model Smarter Zoning Code

HUD’s Office of Policy Development and Research, working with the Environmental Protection Agency (EPA)’s Office of Community Revitalization, should produce a model Smarter Zoning Code that state and local governments can adopt and adapt. The Smarter Zoning Code would provide a variety of options for state and local governments to minimize backlash against zoning reforms by reducing effects on other streets or blocks. Options could include:⁴

• Allowing a street or block to opt-in to upzoning by filing a verified petition signed by a qualified majority of the registered voters residing on that street or block.
  • If the petition is filed by the residents of a block of houses surrounded by streets, development pursuant to the upzoning should be required to leave untouched the fronts of the houses facing those streets (to minimize impact on residents whose lots are not included in the upzoning).
  • Residents can be given the option to attach a design code to their petition.
• Anti-displacement rules. Although most development through smarter zoning will likely happen in neighborhoods dominated by owner-occupied single-family homes, all resident renters should be protected by rules that preserve existing anti-eviction and rent-control provisions. Rules should additionally ensure that no development pursuant to smarter zoning can proceed unless renters are protected, and should include provisions to prevent evasion by landlords.⁵
• Height restrictions and angled light planes to protect sunlight to other blocks.
• Setback rules that can be waived by adjacent homeowners to allow development of townhouses or multifamily units.
• Compensation payable by a developer to adjoining residents who are adversely affected by development permitted under zoning reform.
• Establishment of controlled parking districts surrounding a street or block that votes to upzone, with free parking stickers issued to residents of adjoining streets to protect their parking access.
• Impact fees, tax increment local transfers⁶, community-benefit agreements, or other methods to address spillover effects of new developments.
• Where appropriate, provisions to allow each local government to mitigate the scale of change. For example, local governments could limit opt-in upzoning to no more than four floors of housing in areas that are currently zoned exclusively for single-family homes.

A draft of a model Smarter Zoning Code could be developed for $1 million and could be tested by seeking views from a range of stakeholders for $5 million. The model code should be highlighted in HUD’s Regulatory Barriers Clearinghouse.

2. Collect and showcase evidence on effectiveness and impacts of smarter zoning practices

As part of the list of policy-relevant questions in its systematic plan under the Foundations for Evidence-Based Policymaking Act of 2018⁷, HUD should include the question of which types of zoning approaches, including smarter zoning, can best (i) help to address or overcome political and other barriers to meeting fair-housing standards, and (ii) support plentiful supplies of affordable housing to address equity and other issues.

HUD should also provide research grants under the Unlocking Possibilities Program⁸, once passed, to evaluate the impact of Smarter Zoning techniques, suggest improvements to the model Smarter Zoning Code, and prepare and showcase successful case studies of flexible zoning.

Finally, demonstrated thought leadership by the Biden-Harris Administration could kickstart a new wave of innovation in smarter zoning that helps address historic equity issues. HUD should work with the White House and key stakeholder groups (e.g., the American Planning Association, the National League of Cities, the National Governors’ Association) to host a widely publicized event on Planning for Opportunity and Growth. The event would showcase proven, innovative zoning practices that can help state and local government representatives meet housing and growth objectives.

3. Launch smarter-zoning pilot projects

Subject to funding through the Unlocking Possibilities Program, the HUD Secretary should direct HUD’s Office of Technical Assistance and Management to launch a collection of pilot projects for the implementation of the model Smarter Zoning Code. Specifically, HUD would provide planning grants to help states, local governments, and potentially other groups improve skills and technical capacity needed to implement or promote Smarter Zoning reforms. The technical assistance to help a local government adopt smarter zoning, where possible under existing state law, should cost less than $100,000; technical assistance for a state to enable smarter zoning on a state-wide basis should cost less than $500,000.

4. Promote federal incentives and coordination around smarter zoning

Model codes, evidence-based practices, and planning grants can help advance upzoning in areas that are already interested. The federal government could also provide stronger incentives to encourage more reluctant areas to adopt smarter zoning. It is lawful to condition a portion of federal funds upon criteria that are “directly related to one of the main purposes for which [such funds] are expended”, so long as the financial inducement is not “so coercive as to pass the point at which ‘pressure turns into compulsion’”.⁹ For instance, one of the purposes of highway funds is to reduce congestion in interstate traffic. Failure to allow walkable urban densification limits the opportunities for travel other than by car, which in turn increases congestion on federal highways. It would therefore be constitutional for the federal government to withhold 5% of federal highway funds from states that do not enact smarter zoning provisions. Similarly, funding for affordable home care proposed under the Build Back Better Act will be less effective in areas where exclusionary zoning makes it less affordable for carers to live. A portion of such funding could be withheld from states that do not pass smarter zoning laws. Similar action could be taken on federal funds for education, where unaffordable housing affects the supply of teachers, and on federal funds to fight climate change, because sprawl driven by single-family zoning increases carbon emissions.

HUD’s Office of Fair Housing and Equal Opportunity should consult with other federal bodies on what federal funding can be made conditional upon participation by state and local governments in smarter zoning programs, as well as on when implementing such conditions would require Congressional approval. HUD should similarly consult with other federal bodies on creative opportunities to incentivize smarter zoning through existing programs. If Congress does not wish to amend the law, it may be possible for other agencies to condition funding upon implementation of smarter zoning provisions at state or local level. Although smarter zoning will also benefit existing residents, billions of dollars of incentives may be needed for the most reluctant states and local governments to overcome existing veto players to get more equitable zoning.

Conclusion

Urgent reform is needed to address historic damage caused to equity by zoning rules, originally explicitly racist in language, that remain economically exclusionary in intent and racially discriminatory in impact. By modeling smarter zoning practices, demonstrating their benefits, providing financial and technical assistance for implementation, and conditioning federal funding upon adoption, HUD can accelerate and expand adoption of beneficial flexible zoning reforms nationwide.

Summary

The United States should establish a testbed for government-procured artificial intelligence (AI) models used to provide services to U.S. citizens. At present, the United States lacks a uniform method or infrastructure to ensure that AI systems are secure and robust. Creating a standardized testing and evaluation scheme for every type of model and all its use cases is an extremely challenging goal. Consequently, unanticipated ill effects of AI models deployed in real-world applications have proliferated, from radicalization on social media platforms to discrimination in the criminal justice system. Increased interest in integrating emerging technologies into U.S. government processes raises additional concerns about the robustness and security of AI systems.

Establishing a designated federal AI testbed is an important part of alleviating these concerns. Such a testbed will help AI researchers and developers better understand how to construct testing methods and ultimately build safer, more reliable AI models. Without this capacity, U.S. agencies risk perpetuating existing structural inequities as well as creating new government systems based on insecure AI systems — both outcomes that could harm millions of Americans while undermining the missions that federal agencies are entrusted to pursue.

Summary

Providing incarcerated people opportunities to communicate with support networks on the outside improves reentry outcomes. As the COVID-19 pandemic continues to limit in-person interaction and use of electronic communication grows, it is critical that services such as video calling and email be available to people in prisons. Yet incarcerated people — and their support networks on the outside — pay egregious prices for electronic-communication services that are provided free to the general public. Video chatting with a person in prison regularly costs more than $1 a minute, and email costs are between $0.20 and $0.60 per message. A major reason rates are so high is that facilities are paid site commissions as a percentage of the amount spent on calls (ranging from 20% to 88%).

The Federal Communications Commission (FCC) has explicit authority to regulate interstate prison phone calls (called Inmate Calling Services, or ICS). However, the DC Circuit Court ruled in 2015 that video calls and emails are not covered under the definition of ICS and hence that the FCC does not have authority under the 1996 Telecommunications Act (47 U.S. Code) to regulate video calls or emails. They separately ruled that the FCC does not have authority under §276 of the Telecommunications Act to regulate site commissions. The DC Circuit Court ruling creates an imperative for Congressional action. Congress should revise the Telecommunications Act to clearly cover email and video calls in prisons and jails, capping costs of these communications at “just and reasonable” levels. In the interim, the FCC should try again to eliminate site commissions for telephone calls by relying on §201 of the Telecommunications Act.

Summary

Enabling government data to be freely shared and accessed can expedite research and innovation in high-value disciplines, create opportunities for economic development, increase citizen participation in government, and inform decision-making in both public and private sectors. Each day government data remains inaccessible, the public, researchers, and policymakers lose an opportunity to leverage data as a strategic asset to improve social outcomes.

Though federal agencies and policymakers alike support the idea of safely opening their data both to other agencies and to the research community, a substantial fraction of the United States (U.S.) federal government’s safely shareable data is not being shared.

This playbook, compiled based on interviews with current and former government officials, identifies the challenges federal agencies face in 2021 as they work to comply with open data statutes and guidances. More importantly, it offers actionable recommendations for Executive and Congressional leadership to enable federal agencies to prioritize open data.

Paramount among these solutions is the need for the Biden Administration to assign open government data as a 2021 Cross-Agency Priority (CAP) Goal in the President’s Management Agenda (PMA). This goal should revitalize the 2018 CAP Goal: Leveraging Data as a Strategic Asset to improve upon the 2020 U.S. Federal Data Strategy (FDS) and emphasize that open data is a priority for the U.S. Government. The U.S. Chief Technology Officer (CTO) should direct a Deputy CTO to focus solely on fulfilling this 2021 CAP Goal. This Deputy CTO should be a joint appointment with the Office of Management and Budget (OMB).

Absent elevating open data as a top priority in the President’s Agenda, the U.S. risks falling behind internationally. Many nations have surged ahead building smart, prosperous AI-driven societies while the U.S. has failed to unlock its nascent data. If the Biden Administration wants the U.S. to prevail as an international superpower and a global beacon of democracy, it must revitalize its waning open data efforts.

Summary

The National Science Foundation (NSF) and the Department of Energy (DOE) should invest in a cohort of civic technologies that advance the next generation of American infrastructure while prioritizing individual privacy protections.

Our nation’s infrastructure is in urgent need of upkeep and replacement. The next generation of American infrastructure should be designed and built to be resilient, energy efficient, and integrate harmoniously with network communications, autonomous vehicles, and other “smart” systems. Emerging civic technologies — such as sensors, computers, and software that can support billing and payment, manage public resources, monitor integrity of structures, track traffic flows, and more — can improve the performance of future infrastructure and improve community livability. However, the public often believes that civic technologies invade individual privacy and enrich tech companies. Public distrust has disrupted multiple civic-technology projects around the world.

The federal government should invest in a suite of research and development (R&D) activities to develop new, sensor-based civic technologies that inherently preserve privacy in a manner verifiable by citizens. The federal government should also invest in complementary activities to promote adoption and acceptance of such “privacy-at-the-sensor” technologies. Such activities could include setting standards for the privacy properties of civic technologies, establishing technology test beds, funding public grants to encourage adoption of privacy-preserving sensing technologies, and creating partnerships with external stakeholders interested in civic technologies.

The Biden Administration should (i) direct the Federal Communications Commission (FCC) to take simple administrative steps to promote transparency in the broadband-internet market and (ii) allocate funds through competitive grants and low-interest loans to projects that will increase broadband-market competition. Transparency, funding, and competition will lead to lower prices for consumers and greater adoption of residential broadband. The latter has been proven to increase economic competitiveness while also supplying myriad other social benefits.

Digital driver’s licenses can offer greater protection of personal information, and some states are already skipping the line at the DMV

From submitting personal information over email to scheduling telehealth appointments, safe and verifiable forms of personal identification are crucial. While physical driver’s licenses are standard, they can be stolen or forged. To improve security and ease of use, some states have developed digital driver’s license programs, and even the federal government has signaled its interest in digital IDs. The most common form of digital ID – a mobile driver’s license, or mDL – allows the license holder to authorize the sharing of only those personal details that are absolutely necessary for specific types of transactions. For example, when purchasing alcohol at a liquor store, a mDL could show only a person’s name and age, and hide other personal information, such as an address, and even an exact birth date. Furthermore, forging digital identification is more difficult than forging traditional ID because of public key cryptography, where virtual information, in this case a driver’s license, is encrypted, and can only be decrypted through a virtual verification system that authenticates the ID. This technology is more advanced than the barcodes used to verify identification on traditional driver’s licenses. These systems can help prevent forgery and reduce underage purchases of products such as alcohol and tobacco.

Beyond typical uses of physical driver’s licenses, mDLs could be helpful in the healthcare and finance sectors. Applying digital identification to patient records can increase the accuracy of electronic health records, and also make medical records more accessible to patients. A streamlined authentication process enabled by digital identification can improve banks’ fraud management and support their compliance with verification guidelines that foster financial companies’ abilities to identify their customers as potential money laundering risks. Deploying verified forms of digital identification can improve users’ experiences and modernize operations for institutions moving toward digital services.

Given the success of mDLs in states like Illinois, Oklahoma, and Louisiana, Congress is laying the groundwork for the widespread adoption of digital identification. In Louisiana, drivers can get a mDL by paying $5.99 to download the LA Wallet app, and since the app’s launch in 2018, it is being used by 670,000 residents – nearly 20% of all Louisiana drivers. Louisianans can also upload their COVID-19 vaccination status into the app, or verify their identities when registering for the Disaster Supplemental Nutritional Assistance Program in the wake of a hurricane. LA Wallet is the first mDL app legalized by a state government, and Louisiana has set the standard for how mDLs could operate nationally. In December 2020, Congress passed the REAL ID Modernization Act, which updated federal identification guidelines, authorized the use of electronic driver’s licenses, and established the beginnings of protections against unwarranted smartphone seizure by law enforcement when using a mobile identification app. The act gives states a deadline of October 1, 2021 for all Americans to be issued a REAL ID-compliant driver’s license, which can be switched to a REAL ID-compliant mDLs.

These proposed digital solutions for identification are not without their downsides. mDLs have been flagged by civil society groups, like the American Civil Liberties Union, that are raising concerns about surveillance risks. One such risk is unwarranted police access to non-ID content on phones when mobile driver’s licenses are presented to police officers during traffic stops. Another risk is that because the licenses would be linked to the Department of Motor Vehicles and an app developer, the issuer or verifier could use their direct access to personal information, such as where people are shopping or visiting, for unlawful purposes – like the federal government observing and prosecuting activity, such as purchasing marijuana, that is legal in a particular state. Additionally, if this technology becomes a legal requirement rather than an opt-in choice, it could further disadvantage people in vulnerable communities who do not own smartphones.

A mDL is just one option for more secure identification systems, and in order to make mDLs widely available, issues such as (i) having reliable internet access to use the app, (ii) the affordability of smartphones should mDLs become required, and (iii) the guarantee that user information is secure from unauthorized tracking must be addressed before a federalized system is put in place.

This CSPI Science and Technology Policy Snapshot expands upon a scientific exchange between Congressman Bill Foster (D, IL-11) and his new FAS-organized Science Council.

Summary

The majority of people living in the African continent access their news and information from broadcasted television and radio. As African countries follow the directive from the International Telecommunication Union (ITU) to migrate from analog to digital broadcasting, there is an urgent need to sequester the continent’s broadcast signal distributors (BSDs).1 BSDs provide the necessary architecture for moving broadcasted content (e.g., television and radio) into the digital sphere.

Most BSDs in Africa are owned and operated by Chinese companies. Of 23 digitally migrated countries, only four BSDs (Burkina Faso, Ghana, Guinea, and Zimbabwe) are officially known to be outside the influence of China-based companies. The implicit capture of the BSD marketplace by the People’s Republic of China (PRC) threatens African democracies and could undermine international partnerships among African nations and with the United States. Excessive Chinese control over African BSDs also raises security concerns and impedes establishment of a robust, competitive, and rules-based global market in communications infrastructure.

The United States should therefore consider the following actions to support African civil society, media regulators, and legislators in securing an information ecosystem that advances democratic values:

• Creating a Program on Traditional and Digital Media Literacy within the Department of State’s Bureau of African Affairs 2021 Africa Regional Democracy Fund.
• Supporting a Regional Digital Broadcasting Coordinator for each of the five African sub-regional groups, via the Digital Ecosystem Fund and the Digital Connectivity and Cybersecurity Partnership.
• Enhancing U.S.-based competitiveness by expanding the Digital Attaché Program to promote alternative BSDs in Africa.
• Leveraging the U.S.-Africa Leaders Summit proposed in the U.S. Innovation and Competition Act to advance a regulatory and liability framework governing the relationships among BSDs, content producers, and constitutional protections.

Summary

Small to medium-sized manufacturing (SMM) companies are the backbone of the U.S. industrial base. However, they do not have the financial or technical resources needed to protect themselves from cyberthreats such as computer hacking, embedded malicious software, and “internet of things” sensors sending sensitive information to foreign counties. These cyberthreats can cause huge damage to the U.S. economy and national security. With relatively limited investment, cybercriminals can disrupt critical supply chains, damage key sectors, and delete or corrupt important information resources.

The Biden-Harris administration should address these threats through a government-industry partnership that uses “wargaming” analyses — i.e., virtual techniques to model and assess threats — to evaluate manufacturing cyberthreats and test strategies for ensuring supply-chain cybersecurity. As part of this partnership, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) should implement a pilot program to spread robust and scalable cybersecurity best practices throughout manufacturing-based supply chains. Coordinating the resources and expertise of other federal agencies — including the Nuclear Security Enterprise (NSE), the Department of Defense (DOD) Digital Manufacturing Institute (MxD), the National Institutes of Standards and Technology (NIST) Manufacturing Extension Partnership (MEP), and the DOD Cybersecurity Maturity Model Certification (CMMC) program — with the resources and expertise of external entities (e.g., academic institutions) will enable the administration to become more proactive in anticipating and neutralizing cyberthreats, thus enhancing the stability and security of U.S. manufacturing supply chains.

Summary

Online disinformation continues to evolve and threaten national security, federal elections, public health, and other critical U.S. sectors. Yet the federal government lacks access to data and computational power needed to study disinformation at scale. Those with the greatest capacity to study disinformation at scale are large technology companies (e.g., Google, Facebook, Twitter, etc.), which biases much research and limits federal capacity to address disinformation.

To address this problem, we propose that the Department of Defense (DOD) fund a one-year pilot of a National Cloud for Disinformation Research (NCDR). The NCDR would securely house disinformation data and provide computational power needed for the federal government and its partners to study disinformation. The NCDR should be managed by a governance team led by Federally Funded Research and Development Centers (FFRDCs) already serving the DOD. The FFRDC Governance Team will manage (i) which stakeholders can access the Cloud, (ii) coordinate sharing of data and computational resources among stakeholders, and (iii) motivate participation from diverse stakeholders (including industry; academia; federal, state, and local government, and non-governmental organizations).

A National Cloud for Disinformation Research will help the Biden-Harris administration fulfill its campaign promise to reposition the United States as a leader of the democratic world. The NCDR will benefit the federal government by providing access to data and computational resources needed to combat the threats and harms of disinformation. Our nation needs a National Cloud for Disinformation Research to foresee future disinformation attacks and safeguard our democracy in turbulent times.