In pursuit of lower costs and improved decision-making, federal agencies have begun to adopt artificial intelligence (AI) to assist in government decision-making and public administration. As AI occupies a growing role within the federal government, algorithmic design and evaluation will increasingly become a key site of policy decisions. Yet a 2020 report found that almost half (47%) of all federal agency use of AI was externally sourced, with a third procured from private companies. In order to ensure that agency use of AI tools is legal, effective, and equitable, the Biden-Harris Administration should establish a Federal Artificial Intelligence Program to govern the procurement of algorithmic technology. Additionally, the AI Program should establish a strict data collection protocol around the collection of race data needed to identify and mitigate discrimination in these technologies.

Researchers who study and conduct algorithmic audits highlight the importance of race data for effective anti-discrimination interventions, the challenges of category misalignment between data sources, and the need for policy interventions to ensure accessible and high-quality data for audit purposes. However, inconsistencies in the collection and reporting of race data significantly limit the extent to which the government can identify and address racial discrimination in technical systems. Moreover, given significant flexibility in how their products are presented during the procurement process, technology companies can manipulate race categories in order to obscure discriminatory practices. 

To ensure that the AI Program can evaluate any inequities at the point of procurement, the Office of Science and Technology Policy (OSTP) National Science and Technology Council Subcommittee on Equitable Data should establish guidelines and best practices for the collection and reporting of race data. In particular, the Subcommittee should produce a report that identifies the minimum level of data private companies should be required to collect and in what format they should report such data during the procurement process. These guidelines will facilitate the enforcement of existing anti-discrimination laws and help the Biden-Harris Administration pursue their stated racial equity agenda. Furthermore, these guidelines can help to establish best practices for algorithm development and evaluation in the private sector. As technology plays an increasingly important role in public life and government administration, it is essential not only that government agencies are able to access race data for the purposes of anti-discrimination enforcement—but also that the race categories within this data are not determined on the basis of how favorable they are to the private companies responsible for their collection.

Challenge and Opportunity

Research suggests that governments often have little information about key design choices in the creation and implementation of the algorithmic technologies they procure. Often, these choices are not documented or are recorded by contractors but never provided to government clients during the procurement process. Existing regulation provides specific requirements for the procurement of information technology, for example, security and privacy risks, but these requirements do not account for the specific risks of AI—such as its propensity to encode structural biases. Under the Federal Acquisition Regulation, agencies can only evaluate vendor proposals based on the criteria specified in the associated solicitation. Therefore, written guidance is needed to ensure that these criteria include sufficient information to assess the fairness of AI systems acquired during procurement. 

The Office of Management and Budget (OMB) defines minimum standards for collecting race and ethnicity data in federal reporting. Racial and ethnic categories are separated into two questions with five minimum categories for race data (American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, and White) and one minimum category for ethnicity data (Hispanic or Latino). Despite these standards, guidelines for the use of racial categories vary across federal agencies and even across specific programs. For example, the Census Bureau classification scheme includes a “Some Other Race” option not used in other agencies’ data collection practices. Moreover, guidelines for collection and reporting of data are not always aligned. For example, the U.S. Department of Education recommends collecting race and ethnicity data separately without a “two or more races” category and allowing respondents to select all race categories that apply. However, during reporting, any individual who is ethnically Hispanic or Latino is reported as only Hispanic or Latino and not any other race. Meanwhile, any respondent who selected multiple race options is reported in a “two or more races” category rather than in any racial group with which they identified.

These inconsistencies are exacerbated in the private sector, where companies are not uniformly constrained by the same OMB standards but rather covered by piecemeal legislation. In the employment context, private companies are required to collect and report on demographic details of their workforce according to the OMB minimum standards. In the consumer lending setting, on the other hand, lenders are typically not allowed to collect data about protected classes such as race and gender. In cases where protected class data can be collected, these data are typically considered privileged information and cannot be accessed by the government. In the case of algorithmic technologies, companies are often able to discriminate on the basis of race without ever explicitly collecting race data by using features or sets of features that act as proxies for protected classes. Facebook’s advertising algorithms, for instance, can be used to target race and ethnicity without access to race data. 

Federal leadership can help create consistency in reporting to ensure that the government has sufficient information to evaluate whether privately developed AI is functioning as intended and working equitably. By reducing information asymmetries between private companies and agencies during the procurement process, new standards will bring policymakers back into the algorithmic governance process. This will ensure that democratic and technocratic norms of agency rule-making are respected even as privately developed algorithms take on a growing role in public administration.

Additionally, by establishing a program to oversee the procurement of artificial intelligence, the federal government can ensure that agencies have access to the necessary technical expertise to evaluate complex algorithmic systems. This expertise is crucial not only during the procurement stage but also—given the adaptable nature of AI—for ongoing oversight of algorithmic technologies used within government. 

Plan of Action

Recommendation 1. Establish a Federal Artificial Intelligence Program to oversee agency procurement of algorithmic technologies. 

The Biden-Harris Administration should create a Federal AI Program to create standards for information disclosure and enable evaluation of AI during the procurement process. Following the two-part test outlined in the AI Bill of Rights, the proposed Federal AI Program would oversee the procurement of any “(1) automated systems that (2) have the potential to meaningfully impact the American public’s rights, opportunities, or access to critical resources or services.”

The goals of this program will be to (1) establish and enforce quality standards for AI used in government, (2) enforce rigorous equity standards for AI used in government, (3) establish transparency practices that enable public participation and political accountability, and (4) provide guidelines for AI program development in the private sector.

Recommendation 2. Produce a report to establish what data are needed in order to evaluate the equity of algorithmic technologies during procurement.

To support the AI Program’s operations, the OSTP National Science and Technology Council Subcommittee on Equitable Data should produce a report to establish guidelines for the collection and reporting of race data that balances three goals: (1) high-quality data for enforcing existing anti-discrimination law, (2) consistency in race categories to reduce administrative burdens and curb possible manipulation, and (3) prioritizing the needs of groups most affected by discrimination. The report should include opportunities and recommendations for integrating its findings into policy. To ensure the recommendations and standards are instituted, the President should direct the General Services Administration (GSA) or OMB to issue guidance and request that agencies document how they will ensure new standards are integrated into future procurement vehicles. The report could also suggest opportunities to update or amend the Federal Acquisition Regulations. 

High-Quality Data

The new guidelines should make efforts to ensure the reliability of race data furnished during the procurement process. In particular:

1. Self-identification should be used whenever possible to ascertain race. As of 2021, Food and Nutrition Service guidance recommends against the use of visual identification based on reliability, respect for respondents’ dignity, and feedback from Child and Adult Care Food Program) and Summer Food Service Program participants.
2. The new guidelines should attempt to reduce missing data. People may be reluctant to share race information for many legitimate reasons, including uncertainty about how personal data will be used, fear of discrimination, and not identifying with predefined race categories. These concerns can severely impact data quality and should be addressed to the extent possible in the OMB guidelines. New York’s state health insurance marketplace saw a 20% increase in response rate for race by making several changes to the way they collect data. These changes included explaining how the data would be used and not allowing respondents to leave the question blank but instead allowing them to select “choose not to answer” or “don’t know.” Similarly, the Census Bureau found that a single combined race and ethnicity question improved data quality and consistency by reducing the rate of “some other race,” missing, and invalid responses as compared with two separate questions (one for race and one for ethnicity).
3. The new guidelines should follow best practices established through rigorous research and feedback from a variety of stakeholders. In June 2022, the OMB announced a formal review process to revise Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity. While this review process is intended for the revision of federal data requirements, its findings can help inform best practices for collection and reporting requirements for nongovernmental data as well.

Consistency in Data Reporting 

Whenever possible and contextually appropriate, the guidelines for data reporting should align with the OMB guidelines for federal data reporting to reduce administrative burdens. However, the report may find that other data is needed that goes beyond the OMB guidelines for the evaluation of privately developed AI.

Prioritizing the Needs of Affected Groups

In their Toolkit for Centering Racial Equity Throughout Data Integration, the Actionable Intelligence for Social Policy group at the University of Pennsylvania identifies best practices for ensuring that data collection serves the groups most affected by discrimination. In particular, this toolkit emphasizes the need for strong privacy protections and stakeholder engagement. In their final report, the Subcommittee on Equitable Data should establish protocols to secure data and for carefully considered role-based access to it. 

The final report should also engage community stakeholders in determining which data should be collected and establish a plan for ongoing review that engages with relevant stakeholders, prioritizing affected populations and racial equity advocacy groups. The report should evaluate the appropriate level of transparency in the AI procurement process, in particular, trade-offs between desired levels of transparency and privacy.

Conclusion

Under existing procurement law, the government cannot outsource “inherently governmental functions.” Yet key policy decisions are embedded within the design and implementation of algorithmic technology. Consequently, it is important that policymakers have the necessary resources and information throughout the acquisition and use of procured AI tools. A Federal Artificial Intelligence Program would provide expertise and authority within the federal government to assess these decisions during procurement and to monitor the use of AI in government. In particular, this would strengthen the Biden-Harris Administration’s ongoing efforts to advance racial equity. The proposed program can build on both long-standing and ongoing work within the federal government to develop best practices for data collection and reporting. These best practices will not only ensure that the public use of algorithms is governed by strong equity and transparency standards in the public sector but also provide a powerful avenue for shaping the development of AI in the private sector.

Now is the time to ensure lending models offered by private companies are fair and transparent. Access to affordable credit greatly impacts quality of life and can potentially impact housing choice. Over the past decade, algorithmic decision-making has increasingly impacted the lives of American consumers. But it is important to ensure all forms of algorithmic underwriting are open to review for fairness and transparency, as inequities may appear in either access to funding or in credit terms. A recent report released by the U.S. Treasury Department speaks to the need for more oversight in the FinTech market. 

Challenge and Opportunity

The financial services sector, a historically non-technical industry, has recently and widely adopted automated platforms. Financial technology, known as “FinTech”, offers financial products and services directly to consumers by private companies or in partnership with banks and credit unions. These platforms use algorithms that are non-transparent but directly affect Americans’ ability to obtain affordable financing. Financial institutions (FIs) and mortgage brokers use predictive analytics and artificial intelligence to evaluate candidates for mortgage products, small business loans, and unsecured consumer products. Some lenders underwrite personal loans such as auto loans, personal unsecured loans, credit cards, and lines of credit with artificial intelligence. Although loans that are not government-securitized receive less scrutiny, access to credit for personal purposes impacts the debt-to-income ratios and credit scores necessary to qualify for homeownership or the global cash flow of a small business owner. Historic Home Mortgage Disclosure Act (HMDA) data and studies on small business lending demonstrate that disparate access to mortgages and small business loans occurs. This scenario will not be improved through unaudited decision automation variables, which can create feedback loops that hold the potential to scale inequities.

Forms of discrimination appear in credit approval software and can hinder access to housing. Lorena Rodriguez writes extensively about the current effect of technology on lending laws regulated by the Fair Housing Act of 1968, pointing out that algorithms have incorporated alternative credit scoring models into their decision trees. These newly selected variables have no place in determining someone’s creditworthiness. Inputs include factors like social media activity, retail spending activity, bank account balances, college of attendance, or retail spending habits. 

Traditional credit scoring models, although cumbersome, are understandable to the typical consumer who takes the time to understand how to impact their credit score. However, unlike credit scoring models, lending platforms can input a data variable with no requirement to disclose the models that impact decisioning. In other words, a consumer may never understand why their loan was approved or denied, because models are not disclosed. At the same time, it may be unclear which consumers are being solicited for financing opportunities, and lenders may target financially vulnerable consumers for profitable but predatory loans. 

Transparency around lending decision models is more necessary now than ever. The COVID-19 pandemic created financial hardship for millions of Americans. The Federal Reserve Bank of New York recently reported all-time highs in American household debt. In a rising interest rate environment, affordable and fair credit access will become even more critical to help households stabilize. Although artificial intelligence has been in use for decades, the general public is only recently beginning to realize the ethical impacts of its uses on daily life. Researchers have noted algorithmic decision-making has bias baked in, which has the potential to exacerbate racial wealth gaps and resegregate communities by race and class. While various agencies—such as the Consumer Financial Protection Bureau (CFPB), Federal Trade Commission (FTC), Financial Crimes Enforcement Network, Securities and Exchange Commission, and state regulators—have some level of authority over FinTech companies, there are oversight gaps. Although FinTechs are subject to fair lending laws, not enough is known about disparate impact or treatment, and regulation of digital financial service providers is still evolving. Modernization of policy and regulation is necessary to keep up with the current digital environment, but new legislation can address gaps in the market that existing policies may not cover.

Plan of Action

Three principles should guide policy implementation around FinTech: (1) research, (2) enforcement, (3) incentives. These principles balance oversight and transparency while encouraging responsible innovation by community development financial institutions (CDFIs) and charitable lenders that may lead to greater access to affordable credit. Interagency cooperation and the development of a new oversight body is critical because FinTech introduces complexity due to technical, trade, and financial services overlap. 

Recommendation 1: Research. The FTC should commission a comprehensive, independent research study to understand the scope and impact of disparate treatment in FinTech lending. 

To ensure equity, the study should be jointly conducted by a minimum of six research universities, of which at least two must be Historically Black Colleges and Universities, and should be designed to understand the scope and impact of fintech lending. A $3.5 million appropriation will ensure a well-designed, multiyear study. A strong understanding of the landscape of FinTech and its potential for disparate impact is necessary. Many consumers are not adequately equipped to articulate their challenges, except through complaints to agencies such as the Office of the Comptroller of Currency (OCC) and the CFPB. Even in these cases, the burden of responsibility is on the individual to be aware of channels of appeal. Anecdotal evidence suggests BIPOC borrowers and low-to-moderate income (LMI) consumers may be the target of predatory loans. For example, an LMI zip code may be targeted with FinTech ads, while product terms may be at a higher interest rate. Feedback loops in algorithms will continue to identify marginalized communities as higher risk. A consumer with lesser means who also receives a comparative triple-interest rate will remain financially vulnerable due to extractive conditions. 

Recommendation 2: Enforcement. A suite of enforcement mechanisms should be implemented.

• FinTechs engaged in mortgage lending should be subject to Home Mortgage Disclosure Act (HMDA) reporting on lending activity and Community Reinvestment Act (CRA) examination. When a bank utilizes a FinTech¹, a vendor CRA assessment should be incorporated into the bank’s own examination process. Credit unions should also be required to produce FinTech vendor CRA exams during their examination process. CRA and HMDA requirements would encourage FinTech to make sure they are lending broadly. 
• Congress should codify’ FinTechs’ role as the “true lender” whenever a FinTech’s  underwriting model is used by an FI partner to clarify FinTech responsibility to all applicable state, local, and federal interest caps, fair lending laws, etc., as well as liability when they do not meet existing standards. Federal regulatory agency guidelines must also be updated to clarify the bank or credit union’s Fintech partner’s shared responsibility when a FinTech model for underwriting violates UDAAP or fair lending guidelines. 
• A previously proposed OCC FinTech charter should be adopted but made optional. However, when a FinTech chooses to adopt the OCC charter, the charter should give FinTechs interstate privileges covered under the Reigle-Neal Interstate Banking and Branch Efficiency Act of 1994. This provision should also require FinTechs to fulfill state licensing requirements in each state in which they operate, eliminating their current ability to bypass licensing by partnering with regulated FIs. 
• Companies engaged in any financing activity or providing automated lending software to regulated FIs must be required to disclose decision models to the FI’s examiner upon request. FinTech data disclosure must not be limited to federally secured loans such as small business or mortgage loans but include secured and unsecured loan products made to consumers such as auto, personal, and small dollar loans. When consumers obtain a predatory product in these categories, the loans can have a severe impact on debt-to-income/back-end ratios and credit scores of borrowers, preventing them from obtaining homeownership or causing them to receive less favorable terms. 

Recommendation 3: Incentives. Develop an ethical FinTech certification that denotes a FinTech as responsible lender, such as modeled by the U.S. Treasury’s CDFI certification. 

The certification can sit with the U.S. Treasury and should create incentives for FinTechs demonstrated to be responsible lenders in forms such as grant funding, procurement opportunities, or tax credits. To create this certification, FI regulatory agencies, with input from the FTC and National Telecommunications and Information Administration, should jointly develop an interagency menu of guidelines that dictate acceptable parameters for what criteria may be input into an automated decision model for consumer lending. Guidelines should also dictate what may not be used in a lending model (example: college of attendance). Exceptions to guidelines must be documented, reviewed, and approved by the oversight body after being determined to be a legitimate business necessity. 

Conclusion

Now is the time to provide policy guidance that will prevent disparate impact and harm to minority, BIPOC, and other traditionally marginalized communities as a result of algorithmically informed biased lending practices. 

Government policies, products, and services are created without the true and full design participation and expertise of the people who will use them–the public: citizens, refugees, and immigrants. As a result, the government often replicates private sector anti-patterns¹, using or producing oppressive, disempowering, and colonial policies through products and services that embody bias, limit access, create real harm, and discriminate against underutilized communities² on the basis of various identities violating the President’s Executive Order on Equity. Examples include life-altering police use of racially and sexually biased facial recognition products, racial discrimination in the delivery access of life-saving Medicaid services and SNAP benefits, and racist child welfare service systems.

The Biden-Harris Administration should issue an executive order to embed Radical Participatory Design (RPD) into the design and development of all government policies, products, and services, and to require all federally-funded research to use Radical Participatory Research (RPR). Using an RPD and RPR approach makes the Executive Order on Racial Equity, Executive Order on Transforming the Customer Experience, and the Executive Order on DEIA more likely to succeed. Using RPD and RPR as the implementation strategy is an opportunity to create equitable social outcomes by embodying equity on the policy, product and service design side (Executive Order on Racial Equity), to improve the public’s customer experience of the government (Executive Order on Transforming the Customer Experience, President’s Management Agenda Priority 2), and to lead to a new and more just, equitable, diverse, accessible, and inclusive (JEDAI) future of work for the federal government (Executive Order on DEIA).

Challenge and Opportunity

The technology industry is disproportionately white and male. Compared to private industry overall, whites, men, and Asians are overrepresented while Latinx people, Black people, and women are underrepresented. Only 26% of technology positions in the U.S. are held by women though they represent 57% of the US workforce. Even worse, women of color hold 4% of technology positions even though they are 16% of the population. Similarly, Black Americans are 14% of the population but hold 7% of tech jobs. Latinx Americans only hold 8% of tech jobs while comprising 19% of the population. This representation decreases even more as you look at leadership roles in technology. In FY2020, the federal government spent $392.1 billion contracting services, including services to build products. Latinx, African Americans, Native Americans, and women are underrepresented in the contractor community.

The lack of diversity in designers and developers of the policies, products, and services we use leads to harmful effects like algorithmic bias, automatic bathroom water and soap dispensers that do not recognize darker skin, and racial bias in facial recognition (mis)identification of Black and Brown people. 

With a greater expectation of equity from government services, the public experiences greater disappointment when government policies, services, and products are biased, discriminatory, or harmful. Examples include inequitable public school funding services, race and poverty bias in child welfare systems, and discriminatory algorithmic hiring systems used in government.

The federal government has tried to improve the experience of its products and services through methodologies like Human-centered Design (HCD). In HCD, the design process is centered on the community who will use the design, by first conducting research interviews or observations. Beyond the research interactions with community members, designers are supposed to carry empathy for the community all the way through the design, development, and launch process. Unfortunately, given the aforementioned negative outcomes of government products and services for various communities, empathy often is absent. What empathy may be generated does not persist long enough to influence or impact the design process. Ultimately, individual appeals to empathy are inadequate at generating systems level change. Scientific studies show that white people, who make up the majority of technologists and policy-makers, have a reduced capacity for empathy for people of other and similar backgrounds. As a result, the push for equity remains in government services, products, and policies, leading to President Biden’s Executive Order on Advancing Racial Equity and Support for Underserved Communities and, still, again, with the Executive Order on Further Advancing Racial Equity and Support for Underserved Communities.

The federal government lacks processes to embed empathy throughout the lifecycle of policy, product, and service design, reflecting the needs of community groups. Instead of trying to build empathy in designers who have no experiential knowledge, we can create empathetic processes and organizations by embedding lived experience on the team.

Radical Participatory Design (RPD) is an approach to design in which the community members, for whom one is designing, are full-fledged members on the research, design, and development team. In traditional participatory design, designers engage the community at certain times and otherwise work, plan, analyze, or prepare alone before and after those engagements. In RPD, the community members are always there because they are on the team; there are no meetings, phone calls, or planning without them.

RPD has a few important characteristics. First, the community members are always present and leading the process. Second, the community members outnumber the professional designers, researchers, or developers. Third, the community members own the artifacts, outcomes, and narratives around the outcomes of the design process. Fourth, community members are compensated equitably as they are doing the same work as professional designers. Fifth, RPD teams are composed of a qualitatively representative sample (including all the different categories and types of people) of the community.

Embedding RPD in the government connects the government to a larger movement toward participatory democracy. Examples include the Philadelphia Participatory Design Lab, the Participatory City Making Lab, the Center for Lived Experience, the Urban Institute’s participatory Resident Researchers, and Health and Human Service’s “Methods and Emerging Strategies to Engage People with Lived Experience.” Numerous case studies show the power of participatory design to reduce harm and improve design outcomes. RPD can maximize this by infusing equity as people with lived experience both choose, check, and direct the process.

As the adoption of RPD increases across the federal government, the prevalence and incidence of harm, bias, trauma, and discrimination in government products and services will decrease, aiding the implementation of the executive orders on Advancing Racial Equity and Support for Underserved Communities and Further Advancing Racial Equity and Support for Underserved Communities, and ensuring the OSTP AI Bill of Rights for AI products and services. Additionally, RPR aligns with OSTP’s actions to advance open and equitable research. Second, the reduction of harm, discrimination, and trauma improves the customer experience (CX) of government services aiding the implementation of the Executive Order on Transforming the Customer Experience, the President’s Management Agenda Priority 2, and the CAP goal on Customer Experience. An improved CX will increase community adoption, use, and engagement with potentially helpful and life-supporting government services that underutilized people need. RPD highlights the important connection between equity and CX and creates a way to link the two executive orders. You cannot claim excellent CX when the CX is inequitable and entire underutilized segments of the public have a harmful experience.

Third, instead of seeking the intersection of business needs and user needs like in the private sector, RPD will move the country closer to its democratic ideals by equitably aligning the needs of the people with the needs of the government of the people, by the people, and for the people. There are various examples where the government acts like a separate entity completely unaligned to the will of a majority of the public (gun control, abortion). Project by project, RPD helps align the needs of the people and the needs of the government of the people when representative democracy does not function properly.
Fourth, all community members, from all walks of life, brought into government to do participatory research and design will gain or refine skills they can then use to stay in government policy, product, and service design or to get a job outside of government. The workforce outcomes of RPD further diversify policy, product, and service designers and researchers both inside and outside the federal government, aligning with the Executive Order on DEIA in the Federal Workforce.

Plan of Action

The use of RPD and RPR in government is the future of participatory government and a step towards truly embodying a government of the people. RPD must work at the policy level as well, as policy directs the creation of services, products, and research. Equitable product and service design cannot overcome inequitable and discriminatory policy.  The following recommended actions are initial steps to embody participatory government in three areas: policy design, the design and development of products and services, and funded research. Because all three areas occur across the federal government, executive action from the White House will facilitate the adoption of RPD.

Policy Design

An executive order from the president should direct agencies to use RPD when designing agency policy. The order should establish a new Radical Participatory Policy Design Lab (RPPDL) for each agency with the following characteristics:

• Embodies a qualitatively representative sample of the public target audience impacted by the agency
• Includes a qualitatively representative sample of agency employees who are also impacted by agency policy
• Designs policy through this radical participatory design team
• Sets budget policy through participatory budgeting (Grand Rapids, NYC, Durham, and HUD examples)
• Assesses agency programs that affect the public through participatory appraisals and participatory evaluations
• Rotates community policy designers in to the lab and out of the lab on six-month renewable terms
• Community policy designers receive equitable compensation for their time
• Community policy designers can be offered jobs to stay in government based on their policy experience, or the office that houses the RPPDL will assist community policy designers in finding roles outside of government based on their experience and desire
• An RPD authorization to allow government policy employees to compensate community members outside of a grant, cooperative agreement, or contract (GSA TTS example)

The executive order should also create a Chief Experience Officer (CXO) for the U.S. as a White House role. The Office of the CXO (OCXO) would coordinate CX work across the government in accordance with the Executive Order on Transforming the CX, the PMA Priority 2, the CX CAP goal, and the OMB Circular A-11 280. The executive order would focus the OCXO on the work of coordinating, approving, advising the RPD work across the federal government, including the following initiatives:

• Improve the public experience of high-impact, trans-agency journeys by managing the Office of Management and Budget (OMB) life experience projects
• Facilitate a CXO council of all federal agency CXOs.
• Advise various agency CXOs and other officials on embedding RPD into their policy, service, and product design and development work.
• Work with agencies to recruit and create a list of civil society organizations who are willing to help recruit community members for RPD and RPR projects.
• Recruit RPD public team members and coordinate the use of RPD in the creation of White House policy.
• Coordinate with the director of OMB and the Equitable Data Working Group to create
  • an equity measure of the social outcomes of the government’s products, services, and policies,
  • a public CX measurement of the entire federal government.
• Serve as a member of the White House Steering Committee on Equity established by the Executive Order on Further Advancing Equity.
• Serve as a member of the Equitable Data Working Group established by the Executive Order on Advancing Racial Equity.
• Strategically direct the work of the OCXO in order to improve the equity and CX metrics.
• Embed equity measures in CX measurement and data reporting template required by the OMB Circular A-11 280. CX success requires healthy, equitable CX across various subgroups, including underutilized communities, connecting the Executive Order on Transforming the CX to the Executive Order on Advancing Racial Equity.
• Update the OMB Circular A-11 280’s CX Capacity Assessment tool and the Action Plan template to include equity as a central component.
• Evaluate and assess the utilization of RPD in policy, product, and service design by agencies across the government.

Due to the distributed nature of the work, the funding for the various RPPDLs and the OCXO should come from money the director of OMB has identified and added to the budget the President submits to Congress, according to Section 6 of the Executive Order on Advancing Racial Equity. Agencies should also utilize money appropriated by the Agency Equity Teams required by the Executive Order on Further Advancing Racial Equity.

Product and Service Design

The executive order should mandate that all research, design, and delivery of agency products and services for the public be done through RPR and RPD. RPD should be used both for in-house and contracted work through grants, contracts, or cooperative agreements.

On in-house projects, funding for the RPD team should come from the project budget. For grants, contracts, and cooperative agreements, funding for the RPD team should come from the acquisition budget. As a result, the labor costs will increase since there are more designers on the project. The non-labor component of the project budget will be less. A slightly lower non-labor project budget is worth the outcome of improved equity. Agency offices can compensate for this by requesting a slightly higher project budget for in-house or contracted design and development services. 

In support of the Executive Order on Transforming the CX, the PMA Priority 2, and the CX CAP goal,  OMB should amend the OMB Circular A-11 280 to direct High Impact Service Providers (HISPs) to utilize RPD in their service work.

• HISPS must embed RPD in their product and service research, design, development, and delivery.
• HIPSs must include an equity component in their CX Capacity Assessment and CX Action Plan in line with guidance from the CXO of the U.S.
• Following applicable laws, HISPs should let customers volunteer demographic information during customer experience data collection in order to assess the CX of various subgroups.
• Agency annual plans should include both CX and equity indicator goals.
• Equity assessment data and CX data for various subgroups and underutilized communities must be reported in the OMB-mandated data dashboard.
• Each agency should create an RPD authorization to allow government employees and in-house design teams to compensate community members outside of a grant, cooperative agreement, or contract (GSA TTS example).

OSTP should add RPD and RPD case studies as example practices in OSTP’s AI Bill of Rights. RPD should be listed as a practice that can affect and reinforce all five principles.

Funded Research

The executive order should also mandate that all government-funded, use-inspired research about communities or intended to be used by people or communities, should be done through RPR. In order to determine if a particular intended research project is use-inspired, the following questions should be asked by the government funding agency prior to soliciting researchers:

1. For technology research, is the technology readiness level (TRL) 2 or higher?
2. Is the research about people or communities?
3. Is the research intended to be used by people or communities?
4. Is the research intended to create, design, or guide something that will be used by people and communities?

If the answer to any of the questions is yes, the funding agency should require the funded researchers to use an RPR approach.

Funding for the RPR team comes from the research grant or funding. Researchers can use the RPR requirement to estimate how much funding should be requested in the proposal.
OSTP should add RPR and the executive order to their list of actions to advance open and equitable research. RPR should be listed as a key initiative of the year of Open Science.

Conclusion

In order to address inequity, the public’s lived experience should lead the design and development process of government products and services. Because many of those products and services are created to comply with government policy, we also need lived experience to guide the design of government policy. Embedding Radical Participatory Design in government-funded research as well as policy, products, and services reduces harm, creates equity, and improves the public customer experience. Additionally, RPD connects and embeds equity in CX, moves us toward our democratic ideals, and creatively addresses the future of work by diversifying our policy, product, and service design workforce.

In the summer of 2020, some 15 to 26 million people across the country participated in protests against the tragic killings of Black people by law enforcement officers, making it the largest movement in US history. In response, local and state government officials and federal agencies deployed surveillance tools on protestors in an unprecedented way. The Department of Homeland Security used aerial surveillance on protesters across 15 cities, and several law enforcement agencies engaged in social media monitoring of activists. But there is still a lot the public does not know, such as what other surveillance tactics were used during the protests, where this data is being stored, and for what future purpose. 

Government agencies have for decades secretly used surveillance tactics on individual activists, such as during the 1950s when the FBI surveilled human rights activists and civil rights organizations. These tactics have had a detrimental effect on political movements, causing people to forgo protesting and activism out of fear of such surveillance. The First Amendment protects freedom of speech and the right to assemble, but allowing government entities to engage in underground surveillance tactics strips people of these rights. 

It also damages people’s Fourth Amendment rights. Instead of agencies relying on the court system to get warrants and subpoenas to view an individual’s online activity, today some agencies are entering into partnerships with private companies to obtain this information directly. This means government agencies no longer have to meet the bare minimum of having probable cause before digging into an individual’s private data.

This proposal offers a set of actions that federal agencies and Congress should implement to preserve the public’s constitutional rights. 

• Federal agencies should disclose what technologies they are using, how they are using them, and the effect on civil rights. The Department of Justice should use this information to investigate agencies and ensure their practices aren’t violating the public’s civil rights, 
• The Office of Science and Technology Policy and the Department of Justice should work with the Office of the Attorney General to revise Attorney General Guidelines for the FBI. 
• Congress should pass the Fourth Amendment Is Not For Sale Act.
• Congress should amend the Stored Communications Act of 1986 to compel companies to ensure user data isn’t sold to third parties who will then sell user data to government entities. 
• Congress should pass border search exception legislation. 

Challenges and Opportunities 

Government entities have been surveilling activists and civil rights organizations long before the 2020 protests. Between 1956 and 1971, the FBI engaged in surveillance tactics to disrupt, discredit, and destroy many civil rights organizations, such as the Black Panther Party, American Indian Movement, and the Communist Party. Some of these tactics included illegal wiretaps, infiltration, misinformation campaigns, and bugs. This program was known as COINTELPRO, and the FBI’s goal was to destroy organizations and activists who had political agendas that they viewed as radical and would challenge “the existing social order.” While the FBI didn’t completely achieve this goal, their efforts did have detrimental effects on activist communities, as members were imprisoned or killed for their activist work, and membership in organizations  like the Black Panther Party significantly declined and eventually dissolved in 1982. 

After COINTELPRO was revealed to the public, reforms were put in place to curtail the FBI’s surveillance tactics against civil rights organizations, but those reforms were soon rolled back after the September 11 attacks. Since 9/11, it has been revealed, mostly through FOIA requests, that the FBI has surveilled the Muslim community, Occupy Wall Street, Standing Rock protesters, murder of Freddie Gray protesters, Black Lives Matter protests, and more. Today, the FBI has more technological tools at their disposal that make mass surveillance and data collection on activist communities incredibly easy. 

In 2020, people across the country used social media sites like Facebook to increase engagement and turnout in local Black Lives Matters protests. The FBI’s Joint Terrorism Task Forces responded by visiting people’s homes and workplaces to question them about their organizing, causing people to feel alarmed and terrified. U.S. Customs and Border Protection (CBP) also got involved, deploying a drone over Minneapolis to provide live video to local law enforcement. The Acting Secretary of CBP also tweeted out that CBP was working with law enforcement agencies across the nation during the 2020 Black Lives Matter Protests. CBP involvement in civil rights protests is incredibly concerning given its ability to circumvent the Fourth Amendment and conduct warrantless searches due to the border search exception. (Federal regulations and federal law gives CBP the authority to conduct warrantless searches and seizures within 100 miles of the U.S. border, where approximately two-thirds of the U.S. population resides.)

The longer government agencies are allowed to surveil people who are simply organizing for progressive policies, the more people will be terrified to voice their opinion about the state of affairs in the United States. This has had detrimental effects on people’s First and Fourth Amendment rights and will continue to have even more effects as technology improves and government entities have access to advanced tools. Now is the time for government agencies and Congress to act to prevent further abuse of the public’s rights to protest and assemble. A country that uses tools to watch its residents will ultimately lead to a country with little to no civic engagement and the complete silencing of marginalized communities. 

While there is a lot of opportunity to address mass surveillance and protect people’s constitutional rights, government officials have refused to address government surveillance for decades, despite public protest. In the few instances where government officials put up roadblocks to stop surveillance tactics, those roadblocks were later removed or reformed so as to allow the previous surveillance to continue. The lack of political will of Congressmembers to address these issues has been a huge challenge for civil rights organizations and individuals fighting for change. 

Plan of Action 

Regulations need to be put in place to restrict federal agency use of surveillance tools on the public. 

Recommendation 1. Federal agencies must disclose technologies they are using to surveil individuals and organizations, as well as the frequency with which they use them. Agencies should to publish this information on their websites and produce a more comprehensive report for the Department of Justice (DOJ) to review. 

Every six months, Google releases the number of requests it receives from government agencies asking for user information. Google informs the public on the number of accounts that were affected by those requests and whether the request was a subpoena, search warrant, or other court order. The FBI also discloses the number of DNA samples it has collected from individuals in each U.S. state and territory and how many of those DNA samples aided in investigations.

Likewise, government agencies should be required to disclose the names of the technologies they are purchasing to surveil people in the United States as well as the number of times they use this technology within the year. Government entities should no longer be able to hide which technologies their departments are using to watch the public. People should be informed on the depth of the government’s use of these tools so they have a chance to voice their objections and concerns. 

Federal agencies also need to publish a more comprehensive report for the DOJ to review. This report will include what technologies were used and where, what category of organizations they were used against, racial demographics of the people who were surveilled, and possible threats to civil rights. The DOJ will use this information to run investigate whether agencies are violating the Fourth Amendment or First Amendment in using these technologies against the public. 

Agencies may object to releasing this information because of the possibility of it interfering with investigations. However, Google does not release the names of individuals who have had their user information requested, and neither should government agencies release user information. Because government agencies won’t be required to release specific information on individuals to the public, this will not affect their investigations. This disclosure request is aimed at knowing what tools government agencies are using and giving the DOJ the opportunity to investigate whether these tools violate constitutional rights. 

Recommendation 2. Attorney General Guidelines should be revised in collaboration with the White House Office of Science and Technology Policy (OSTP) and civil rights organizations that specialize in technology issues.

The FBI has used advanced technology to watch activists and protests with little to no government oversight or input from civil rights organizations. When conducting an investigation or assessment of an individual or organization, FBI agents follow the Attorney General Guidelines, which dictate how investigations should be conducted. Unfortunately, these guidelines do little to protect the public’s civil rights—and in fact contain a few provisions that are quite problematic: 

• The FBI is able to conduct assessments, which don’t require factual basis but instead require an authorized purpose, such as obtaining information on an organization or person if it’s believed that they could be involved in activities threatening national security or suspected that they could be the target of an attack. 
• Physical surveillance can be used during an assessment for a limited time, but that period has been redacted in the guide so it’s not clear how long they can engage in this practice. 
• FBI employees can conduct internet searches of “publicly available information” for an authorized purpose without having a lead, tip, referral, or complaint. FBI employees can also use online services to obtain publicly available information before the employee even decides to open an assessment or formal investigation. FBI employees are not required to seek supervisor approval beforehand.

These provisions are problematic for a few reasons. FBI employees should not be able to conduct assessments on individuals without a factual basis. Giving employees the power to pick and choose who they want to assess provides an opportunity for inherent bias. Instead, all assessments and investigations should have some factual basis behind them and receive approval from a supervisor. Physical surveillance and internet searches, likewise, should not be conducted by FBI agents without probable cause. Allowing these kinds of practices opens the entire public to having their privacy invaded. 

These policies should be reviewed and revised to ensure that activists and organizations won’t be subject to surveillance due to internal bias. President Biden should issue an executive order directing OSTP to collaborate with the Office of the Attorney General on the guidelines. OSTP should have a task force dedicated to researching government surveillance and the impact on marginalized groups to guide them on this collaboration. 

External organizations that are focused on technology and civil rights should also be brought in to review the final guidelines and voice any concerns. Civil rights organizations are more in tune with the effect that government surveillance has on their communities and the best mechanisms that should be put in place to preserve privacy rights. 

Congress also should take steps to protect the public’s civil rights by passing the Fourth Amendment Is Not for Sale Act, revising the Stored Communications Act, and passing border exception legislation. 

Recommendation 3. Congress should close the loophole that allows government agencies to circumvent the Fourth Amendment and purchase data from private companies by passing the Fourth Amendment Is Not for Sale Act. 

In 2008, it was revealed that AT&T had entered into a voluntary partnership with the National Security Agency (NSA) from 2001 to 2008. AT&T built a room in its headquarters that was dedicated to providing the NSA with a massive quantity of internet traffic, including emails and web searches. 

Today, AT&T has eight facilities that intercept internet traffic across the world and provide it to the NSA, allowing them to view people’s emails, phone calls, and online conversations. And the NSA isn’t the only federal agency partnering with private companies to spy on Americans. It was revealed in 2020 that the FBI has an agreement with Dataminr, a company that monitors people’s social media accounts, and Venntel, Inc., a company that purchases bulk location data and maps the movements of millions of people in the United States. These agreements were signed and modified after BLM protests were held across the country. 

Allowing government agencies to enter into agreements with private companies to surveil people gives them the ability to bypass the Fourth Amendment and spy on individuals with no restriction. Federal agencies no longer need rely on the courts when seeking private communications and thoughts; they can now purchase sensitive information like a person’s location data and social media activity from a private company. Congress should end this practice and ban federal government agencies from purchasing people’s private data from third parties by passing the Fourth Amendment Is Not For Sale Act. If this bill passed, government agents could no longer purchase location data from a data broker to figure out who was in a certain area during a protest or partner with a company to obtain people’s social media postings without going through the legal process. 

Recommendation 4. Congress should amend the Stored Communications Act of 1986 (SCA) to compel electronic communication service companies to prove they are in compliance with the act. 

The SCA prohibits companies that provide an electronic communication service from “knowingly” sharing their stored user data with the government. While data brokers are more than likely excluded from this provision, companies that provide direct services to the public such as Facebook, Twitter, and Snapchat are not. Because of this law, direct service companies aren’t partnering with government agencies to sell user information, but they are selling user data to third parties like data brokers. 

There should be a responsibility placed on electronic communication service companies to ensure that the companies they sell user information to won’t sell data to government entities. Congress should amend the SCA to include a provision requiring companies to annually disclose who they sold user data to and whether they verified with the third party that the data will not be eventually sold to a government entity. Verification should require at minimum a conversation with the third party about the SCA provision and a signed agreement that the third party will not sell any user information to the government. The DOJ will be tasked with reviewing these disclosures for compliance. 

Recommendation 5. Congress should pass legislation revoking the border search exception. As stated earlier, this exception allows federal agents to conduct warrantless searches and seizures within 100 miles of the U.S. border. It also allows federal agents to search and seize digital devices at the border without having any level of suspicion that the traveler has committed a crime. CBP agents have pressured travelers to unlock their devices to look at the content, as well as downloaded the content of the devices and stored the data in a central database for up to 15 years. 

While other law enforcement agencies are forced to abide by the Fourth Amendment, federal agents have been able to bypass the Fourth Amendment and conduct warrantless searches and seizures without restriction. If federal agents are allowed to continue operating without the restrictions of the Fourth Amendment, it’s possible we will see more instances of local law enforcement agencies calling on CBP to conduct surveillance operations on the general public during protests. This is an unconscionable amount of power to give to agencies that can and has led to serious abuse of the public’s privacy rights. Congress must roll back this authority and require all law enforcement agencies—local, state, and federal—to have probable cause at a minimum before engaging in searches and seizures. 

Conclusion

For too long, government agencies have been able to surveil individuals and civil rights organizations with little to no oversight. With the advancement of technology, their surveillance capabilities have grown tremendously, leading to near 24/7 surveillance. Regulations must be put in place to restrict the use of surveillance technologies by federal agencies, and Congress must pass legislation to protect the public’s constitutional rights.

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.

Question: What do family game nights and federal government initiatives have in common?

Answer: They’re both much easier to successfully start than to successfully finish.

Coordinating multiple stakeholders—each with their unique interests and perspectives—around a common goal is simply difficult. At FAS, we have yet to figure out how to best tackle family game nights. But we have found that for complex federal initiatives involving many agencies, taking the time to step back and assess progress to date often paves the way for continued future success. We also recognize that unless specifically tasked and resourced, Executive Branch agencies and offices generally lack capacity to do this on their own.

That’s why today, FAS is releasing an independent assessment of agency-reported progress on the Administration’s Justice40 Initiative—a landmark whole-of-government effort to ensure that 40% of the overall benefits of certain federal investments flow to disadvantaged communities that are marginalized, underserved, and overburdened by pollution.

The complete assessment is freely available here. A supplemental spreadsheet to the assessment is available here.

The assessment focuses on the 175 Justice40 recommendations issued by the White House Environmental Justice Advisory Council (WHEJAC) in May 2021. Key takeaways include:

• Federal agencies reported tangible progress on half of the WHEJAC’s Justice40 recommendations, such as reducing exposure to lead and investing in the LIHEAP program to lower home energy bills.
  • While this progress is commendable, it is important to note that agency-reported progress does not always match the lived reality of stakeholders. There is an opportunity and a need for the WHEJAC and federal agencies to co-develop strategies for tracking Justice40 implementation that incorporate multiple perspectives (e.g., from government officials, impacted communities, local leaders, and independent experts).
• Agencies struggled to implement a quarter of the recommendations due to barriers such as lack of statutory authority, lack of resourcing, or lack of clarity on what particular actions would constitute implementation. The WHEJAC should consider revisiting and revising these recommendations to improve actionability.
• There are clear pathways for the White House Environmental Justice Interagency Council (IAC), working with CEQ, to facilitate near-term progress on a number of the WHEJAC’s recommendations that have gone largely unfulfilled to date. In parallel, there are a number of high-interest topic areas—including clean transit and transportation, urban forestry and urban greening, and varied aspects of climate mitigation and resiliency—for which the WHEJAC should consider building out additional recommendation.

Additional background and insights from the assessment are provided below. 

The WHEJAC and the Justice40 Initiative

President Biden launched the Justice40 Initiative within days of taking office in January 2021. Executive Order (E.O.) 14008, which created the Initiative, also established the first-ever White House Environmental Justice Advisory Council (WHEJAC). The WHEJAC comprises two dozen experts in environmental justice, climate change, disaster preparedness, racial inequity, and related fields. 

The WHEJAC’s mission is to provide advice and recommendations to the Chair of the Council on Environmental Quality (CEQ) and the White House Environmental Justice Interagency Council (IAC) “on how to increase the Federal Government’s efforts to address current and historic environmental injustice.” The WHEJAC’s first suite of recommendations, released in May 2021, included 175 specifically focused on the Justice40 Initiative. In May 2022, CEQ delivered a required report to Congress that included responses from the federal agencies named in each of these.

Assessing agency-reported progress on Justice40

To inform the WHEJAC’s future efforts, and to support ongoing implementation of the Justice40 Initiative, we at FAS conducted an independent assessment of the WHEJAC’s Justice40 recommendations and CEQ’s corresponding report. We emphasize that this assessment was scoped to elucidate key insights and trends from agency-reported progress on Justice40, and did not include independent verification of agency responses. The assessment includes five sections:

• Section 1 (Summary of agency-reported progress) describes how we evaluated agency-reported progress on the WHEJAC’s Justice40 recommendations. We found that agencies detailed tangible progress for about half (50%) and did not illustrate tangible progress for about a quarter (24%) of the recommendations. Implementation status could not be assessed for the remainder. The assessment supplement maps each recommendation to its corresponding agency response(s) and to its corresponding quantitative and qualitative evaluations from FAS.
• Section 2 (Improving existing recommendations) identifies Justice40 recommendations that could not be fully implemented because of (i) a lack of statutory authority, (ii) inappropriate assignment of the recommendation to a particular agency or agencies, (iii) lack of resources, and/or (iv) vague language. This section also provides suggestions for how the WHEJAC may wish to revisit and/or strengthen the recommendations in question.
• Section 3 (Prioritizing progress on unfulfilled recommendations) highlights Justice40 recommendations which the IAC may wish to consider as priorities for future progress. FAS selected these recommendations based on holistic evaluation of (i) recommendation feasibility, (ii) indicated agency willingness to pursue additional responsive action, and (iii) whether there is a clear role for the IAC to play in facilitating implementation.
• Section 4 (Building out additional recommendations) identifies high-interest topics for which the WHEJAC provided few or no recommendations. As it continues its work, the WHEJAC may wish to consider building out additional recommendations for agency action related to these topics. These topics include:
  • Clean energy beyond solar power
  • Clean transit and transportation
  • Urban forestry and urban greening
  • Drinking-water pollutants beyond lead
  • Ensuring environmental justice for migrant and seasonal workers
  • Varied aspects of climate mitigation and resiliency
  • Linguistic isolation
• Section 5 (Implementation highlights) draws attention to Justice40 recommendations where FAS identified particularly notable progress on implementation. These highlights are both independently commendable and indicate areas with momentum that the WHEJAC and IAC can leverage for follow-on work.

Read the full assessment:

• Assessment of progress on the White House Environmental Justice Advisory Council (WHEJAC)’s Justice40 recommendations
  • Assessment
  • Supplement

Summary

The COVID-19 pandemic is exacerbating an existing mental health crisis to such a degree that many fear it will overwhelm the fragmented mental health delivery system in the United States. Rates of mental health problems—including depression, trauma- and stressor-related disorders, substance abuse, suicidal ideation, and suicide attempts—have increased during the COVID-19 pandemic. Scarce access to mental health services compounds the problem. Nearly 25 million Americans with mental health needs go untreated each year, and half of U.S. counties have no access to mental health care whatsoever. However, the current moment presents an opportunity. Even as the pandemic increased needs for mental health services, so too did pandemic-related shifts reveal the broad utility of and interest in digital solutions such as mobile apps, digital therapeutics, and digital therapy.

In the absence of regulation, however, ineffective and potentially harmful digital mental health products may make their way into consumer hands. Estimates suggest that over 20,000 digital mental health products exist, yet only five have received Food and Drug Administration (FDA) clearance. The FDA temporarily reduced their enforcement and review of these products due to COVID-19. But moving forward, addressing the largely unregulated space of digital mental health products is critical to mitigate harm of unverified digital mental health solutions. As examples of potential harms, companies have used digital products to offer services but from unlicensed providers, withheld client information from providers, or made data available to various third parties without following stated terms of services. Developing an infrastructure to regulate these products while also helping provide and reimburse effective and safe digital mental health solutions is essential to meet the overwhelming need for mental health services and ensure quality and equity in mental health care.

The White House Office of Science and Technology Policy and/or the National Economic Council and Department of Labor should convene a Transparent Tech Training Alliance, a coalition of public and private sector leaders called to expand access to early tech careers by codifying and communicating industry hiring standards. To meet the economy’s urgent and growing demand for tech workers, innovative educators have developed tens of thousands of short courses and bootcamps to rapidly upskill workers. But this landscape is complicated to navigate, especially for low-wage workers and small- and medium-sized enterprises (SMEs) who are training and hiring in tech at increasing numbers. Without intervention, this nascent system will exacerbate the divide between the “haves and have nots” of our economy, further endangering the health of our workforce, communities, and businesses.

In response, the Alliance should:

1. make a highly publicized commitment to unprecedented transparency in hiring practices and the annual publication of hiring data;
2. generate a clear, industry-driven guide of certified credentials, career pathways, and funding sources;
3. utilize this guide and more for a prize competition that modernizes CareerOneStop; and
4. reconvene annually to publicize their progress and update resources.

Challenge and Opportunity

America’s pool of tech talent will grow too slowly and homogeneously to meet the economy’s needs. An estimated 400,000 STEM college students graduate every year, but by 2030 there will still be a shortage of 6 million tech workers in the United States. The accelerated demand for tech workers has driven educators to create innovative training methods, like short-courses and bootcamps. Now, the tech-training space has become crowded and governed by an opaque universe of unwritten rules: Which bootcamps and credentials are reputable? What projects make a compelling portfolio? What types of questions will be asked in an interview?

Those with personal or professional networks in the technology industry have access to information that helps them navigate to the “right” programs and credentials for upskilling. However, those without access to this information risk investing time and financial resources into low-quality training programs with limited guarantees of joining the new economy.

This unnecessarily blocks a new pipeline of workers ready to fill high-demand vacancies, while also cementing the industry’s homogeneous hiring practices and exacerbating racial and gender inequality. Considering their total workforce participation, women and Black and Latinx workers are severely underrepresented along the career spectrum. Given the anticipated rapid expansion of jobs in technology, and the compression of jobs in other fields, there is an urgent need to address these gaps and provide access to upskilling for all workers, especially in the technology industry.

The “alphabet soup” of tech training programs and failures of existing federal tools to guide workers bear large responsibility for the system’s failure.

Alphabet Soup

The tech credential and training space is often referred to as “alphabet soup” to denote the myriad of available options: workers must decide between more than 12,000 cybersecurity, 4,000 IT Helpdesk and 17,000 web programming credential options, and there are many more categories of tech professions.

On one hand, the saturation of credentialing services indicates educators are innovatively upskilling and reskilling workers to fill in-demand jobs. On the other, it creates a significant challenge of reliability for workers looking for a program or credential that will enable their gainful employment. It also creates a barrier for SMEs, who are rapidly hiring tech talent but may not have the technical expertise to assess highly qualified workers among the universe of credential options. Without clear metrics for quality, both candidates and businesses waste precious time and financial resources navigating this nontransparent process.

Black and Latinx individuals are disproportionately in a position of reliance on short-term tech training such as bootcamps to enter the industry due to lack of equitable access to traditional four-year degree programs. Compared to their representation in the tech industry, Black and Latinx workers are 29% and 38% more likely to use bootcamps, respectively. Therefore, these already vulnerable workers incur the disproportionate risk created by such a vast, unregulated landscape, exasperating the existing disparities in access to tech careers.

Failures in Existing Federal Tools

The existing federal tool, CareerOneStop, is ill-equipped to support the needs of the growing tech workforce. Outdated and difficult to use, CareerOneStop provides an incomplete picture of the breadth of career and program options available. CareerOneStop also does not provide comparative tools for workers deciding between different careers or educational pathways. For example, it includes over 70 certifications in cybersecurity without information on cost, results, or anticipated wages after their completion. Information on training, jobs and local support are not integrated by industry verticals, making it tedious to compare one’s options. Lastly, the site is entirely literacy intensive, failing to incorporate video footage or other media to reach workers at lower reading levels or different means of accessibility.

These features disadvantage both workers and counselors, who rely on CareerOneStop to make high-stakes financial investments in reskilling.

A Call for Transparency to Increase Access and Accountability

To maintain its global competitiveness and support the growing tech needs in businesses across all industries, the United States must rapidly upskill workers into programming, cybersecurity and IT jobs. Clear pathways, quality benchmarks, and program options will not only make these careers more accessible, but also less risky to marginalized populations. There is a crucial opportunity to bring transparency to careers in the new economy while the industry is still nascent and developing.

Plan of Action

The White House Office of Science and Technology Policy and/or the National Economic Council, in close partnership with the Department of Labor’s Employment and Training Administration (ETA), should assemble a Transparent Tech Training Alliance, a cross-sector coalition of leaders with a mandate to increase transparency and therefore access and accountability in tech hiring. They should meet in a highly publicized convening in order to make two public commitments: 

1. Unprecedented transparency in hiring standards: sharing the “unwritten rules” via accessible documentation that codifies standards and norms in tech recruiting to guide Americans into these careers.
2. Accountability through public data: committing to a method and timeline for publishing their hiring demographics (e.g. race, gender, educational background and training), no more than one year from the convening.

Spearheaded by the ETA, but including representatives from the broader Departments of Labor and Education, a coalition of federal leaders can accomplish these outcomes through the following three steps:

Step I. Preparation

Assemble a Roster

First, the ETA should propose a cross-sector Alliance, including representatives from major tech companies, large national or regional employers across multiple industries, academia, local government, tech investment and nonprofit organizations that are committed to increasing diversity and inclusion in tech hiring. This will require the ETA to gather research regarding the relevant stakeholders and experts who would have the greatest impact on the group with their attendance whose hiring footprint is either large and growing or most representative of the country’s employers.

Outreach should be conducted by a highly visible member of the Department of Labor such as Secretary of Labor Marty Walsh or Chief Innovation Officer Chike Aguh in order to elevate the importance and urgency of the Alliance.

Publicize a Call to Action for the Alliance

The White House Office of Science and Technology Policy and/or the National Economic Council must make a Call for Action to the Alliance, drawing an explicit connection between transparency, economic mobility, and equity. This will empower consumers to hold industry accountable for their role in rebuilding the economy justly. In other words, not participating should be equivalent to denouncing equity initiatives in tech. Federal government leaders should apply pressure to companies not only to participate, but to follow through on their commitment to transparent data sharing.

Step II. Convene the Alliance

Host a Formal and Public Initial Convening

A representative from the White House Office of Science and Technology Policy and/or the National Economic Council or the Department of Labor should open the event with a call to action – clearly connecting access to good jobs with our economic recovery, equity, and global competitiveness. Then, the Alliance members would make the two aforementioned commitments: unprecedented transparency in hiring standards and accountability through public data. These should be documented and signed in a highly public fashion, including a social media campaign and press reporting on the event. Awards should be given to the firms that have made the most progress in hiring diversity and inclusivity in the last decade through data and storytelling spotlights. The convening is also an opportunity to announce the prize competition to modernize CareerOneStop (i.e. Step III). 

Appoint Representatives to a Task Force

The Alliance must recommend representatives for a Task Force to accomplish the following goals:

• Create a list of high-demand tech jobs and the pathways to obtain them at various educational levels.
• Identify gaps in the current training systems and invite short-term courses such as bootcamps to fill them.
• Certify reliable credentials that industry uses for hiring.
• Determine to norms for publishing hiring data that increases transparency across the industry and expanding access to jobs in tech through long-term action.
• Convene bi-monthly to re-evaluate the above goals to ensure their current relevance to the industry.

Reconvene the Alliance Annually to Review Data and Recommit to Transparency

The Alliance should meet annually to:

• Formally and publicly share key data points from their hiring systems, such as race, gender, educational background and tech training, and their long-term plans for expanding access to tech jobs for underrepresented groups.
• Recommit to transparency in hiring practices.
• Draw attention to updates in the hiring practices they previously published.
• Create a formal opportunity for industry to communicate their needs to the educational community, ensuring our training systems are driven by demand and informed by actual industry trends.
• Celebrate up and coming educational programs that show promise, and further expand the list of certified credentials.

Step III. Use a Prize Competition to Update Federal Resources

Driven by the ETA, the Department of Labor should launch a prize competition to modernize CareerOneStop, the existing federal career exploration platform. The new platform should spotlight the Alliance Task Force’s information on transparency on high-demand tech jobs, and the educational levels needed to attain them. It should also clarify pathways between skills, credentials, and jobs on a platform that is user friendly for workers, counselors and small- and medium- business leaders who are hiring in fields like programming, IT and cybersecurity. The best platforms will include resources for integrating the content into other sites such as LinkedIn, a corresponding smart phone application, and multi-language access.

The Prize Competition will also bring attention to the broader initiative, driving both employer and worker traffic to the site upon publication. There should be a monetary prize of approximately $100,000 for the winner and runners up, and a multi-year contract for the winner to manage the platform. It should be publicized in the coder community, via tech investors, and publicly on federal sites such as www.challenge.gov.

Conclusion 

The potential of the Transparent Tech Training Alliance lies in government leaders’ “power of the podium” to motivate industry leaders to increase transparency about their hiring practices and data. Equipped with relevant knowledge about the credentials and training experiences industry most values, delivered via a modernized, user-friendly tool, workers can invest their time and financial resources in upskilling and reskilling in tech. By making “insider information” about industry preferences public, the White House and ETA will create opportunities for all Americans to access gainful employment in the technology industry.

Every American deserves to engage with the world on their own terms. But for the 61 million adults in the United States living with a disability, challenges—including social isolation, the need for advanced assistive technologies, access to care, and economic security—abound. These challenges require a coordinated National Strategy on Disabilities.

To empower people with disabilities to engage with the world on their own terms, President Biden should establish a White House Council on Disabilities tasked with the mission of providing a federally coordinated approach to aligning federal policy, medical reimbursement, and research funding to address issues critical to people those living with disabilities. The goal of this Council would be to provide much-needed leadership and coordination among federal agencies and with external stakeholders, that enable the development of (and access to) the new knowledge and technologies necessary to better support Americans with disabilities of all types and further enrich connections to one another and our economy.

Challenge and Opportunity

July 26, 2020 marked the 30th anniversary of the Americans with Disabilities Act (ADA). This landmark piece of legislation aimed to “provide equality of opportunity, full participation, independent living, and economic self-sufficiency” for people with disabilities. The ADA also drove positive change in Americans’ attitudes about disabilities by asserting that people with disabilities “should participate fully in all aspects of our communities and have opportunities to take risks, to succeed, and—yes—to fail.” While the ADA has addressed many of the major civil-rights challenges faced by those living with disabilities, more must be done to modernize the government’s approach to meeting the needs of people living with disabilities.

Over a quarter (61 million) of adult Americans live with a disability. The Centers for Disease Control and Prevention (CDC) reports that out of this group:

• 13.7% have a mobility disability, experiencing serious difficulty walking or climbing stairs.
• 10.8% have a cognition disability, experiencing serious difficulty concentrating, remembering or making decisions.
• 6.8% have an independent-living disability, experiencing difficulty doing errands alone.
• 5.9% are Deaf or have serious difficulty hearing.
• 4.6% have a vision disability, experiencing blindness or serious difficulty seeing even when wearing glasses.
• 3.6 percent have a self-care disability, experiencing difficulty dressing or bathing.

We the authors write from the perspective of people living with Amyotrophic Lateral Sclerosis (ALS), which creates physical and cognitive limitations for thousands of Americans each year and serves as a powerful example of many obstacles Americans with disabilities often face. ALS is just one of the countless conditions that make it challenging for Americans to engage with the world in the way that they want. Many of these challenges could be addressed through coordinated federal activities, investment, and programs for people with disabilities.

For example, those living with conditions such as muscular dystrophy, multiple sclerosis, Alzheimer’s, and spina bifida, need new and improved technologies that provide better mobility, independence, and self-care—technologies such as lighter, nimbler wheelchairs. Today’s power wheelchairs are heavy, bulky, and hard to transport on buses and planes. In fact, one airline recently proposed a policy that would preclude people who use heavy wheelchairs from flying on small regional jets. While the policy was reversed after activist involvement, the fact that it was proposed in the first place demonstrates some of the limitations of existing equipment and policy. Public and private investment in innovation that would make power wheelchairs lighter and more mobile would make it easier for people with certain mobility limitations to leave their homes and more fully engage with the world.

Directly related to the need for innovation is the need for modern payment and reimbursement policies that create affordable access to such technologies for people living with disabilities. New medical technologies are useless if people aren’t able to access them. For example, Medicare only covers equipment primarily intended for in-home use. That means that Medicare will not reimburse for essential exterior home modifications such as wheelchair ramps. People with disabilities have the right to be outside. It is time for a commonsense approach to coverage for services and technology that empower Americans with disabilities to experience life on their terms. Another example is that Medicare will only cover equipment for a direct medical reason. This constraint precludes coverage for multi-use devices that can ease access challenges for people with disabilities, including tablet computers that can convert eye gaze to speech and other assistive technology devices.

It is time for a commonsense, open-minded approach to coverage for services and technologies that empower Americans with disabilities. Today’s medical-reimbursement policies are outdated and problematically narrow in scope. These policies must be updated to recognize the broad potential of consumer technology and value of connectedness to wellness. Removing constraints on innovation and function in reimbursement policies will also encourage development of new and creative solutions to the diverse challenges facing those with disabilities.

Modern and coordinated research, development, and reimbursement policies are critical for tapping the enormous value that society would gain from enabling people with disabilities to engage the world more fluidly and consistently—including through employment. Just 36% of adults living with disabilities are employed. Addressing the challenges faced by people living with disabilities would help more of those people join the workforce, boosting the economy and productivity while enabling those with disabilities to live lives that are fuller and more financially secure.

Finally, there is a need to develop a data-centric approach to the evolution of policy over time to ensure that guidances, rules, and regulations are regularly updated to meet the needs of people living with disabilities based on data and the best information available. Are our policies having the impacts we need to help people with engage the world on their terms?

Plan of Action

Establishing the White House Council on Disabilities

The Biden campaign’s Plan for Full Participation and Equality for People with Disabilities provides solid groundwork for ensuring that people with disabilities are included in policy and decision-making. Realizing the promise of this plan requires a coordinating executive body to ensure that government agencies are implementing synergistic policies and avoiding bureaucratic silos. The Biden-Harris Administration should establish a White House Council on Disabilities (WHCD), run through the Domestic Policy Council, as an action-oriented entity that complements—rather than replicates—the largely advisory work of the National Council on Disability. The WHCD’s responsibilities would include:

1. Coordinating federal activities and programs for people with disabilities.
2. Examining everyday challenges facing those living with disabilities, identify opportunities for addressing those challenges, and set goals and timelines designed to increase engagement and stimulate innovation around disabilities.
3. Revisiting the ADA to see where improvements and updates need to be made.

The WHCD should be tasked with developing a National Strategy on Disabilities that lays out specific actions and forward-leaning public policies related to each of these workstreams that should be implemented over the next four years in order to improve quality of life for all people living with disabilities in the United States. As part of developing the strategy, the WHCD should aunch a robust public-engagement effort. For instance, the WHCD should organize forums that bring together private and public stakeholders to discuss common issues, and should host listening sessions to hear directly from people living with disabilities and their care partners.

The Biden campaign’s Plan for Full Participation and Equality for People with Disabilities provides solid groundwork for ensuring that people with disabilities are included in policy and decision-making. However, a coordinating executive body is needed to ensure that government agencies are implementing complementary policies and avoiding bureaucratic silos, so that the promise of the President’s campaign plan can be realized. This action-oriented effort would be complementary to the National Council on Disability, which is “an independent federal agency charged with advising the President, Congress, and other federal agencies regarding policies, programs, practices, and procedures that affect people with disabilities”. The Administration should build on this work and existing structures to ensure that the Biden plan can be implemented by appointing a Director of the WHCD to drive and oversee this effort.

The WHCD should also be tasked with establishing a comprehensive research agenda focused on addressing challenges faced by those living with disabilities that goes beyond the development of new technologies, and also improves social engagement and isolation common among people living with disabilities. The agenda should include research on:

1. Meeting technology needs, including those related to assistive technology and durable medical equipment (DME), communications technology and broadband access, transportation, and education.
2. Ensuring affordable access to and reimbursement for care, including by implementing new financing mechanisms, working with existing providers, and funding innovation.
3. Promoting economic security of those living with disabilities, including by expanding employment opportunities, implementing tax reforms, and changing social policies.

Priority areas and opportunities for action

Herein, we expand on three priority areas—and associated opportunities for action—that the WHCD could pursue. Each of these areas demonstrates the clear positive impacts that a WHCD could have on the lives of the millions living with disabilities across the United States.

Priority Area 1. Research and technology: innovation that empowers

People with disabilities use a variety of technologies to improve their lives. For mobility-challenged persons, for instance, key technologies include powered wheelchairs, special beds, and stair-lifts. But these products can be expensive and unwieldy, and no federal agency is specifically charged with driving innovation for the disabled community. In cases where innovation has occurred, such as more compact ventilators or high mobility wheelchairs, Medicare’s focus on in-home use does not adequately consider the benefits of equipment that better supports travel and social engagement. 

As part of the National Strategy on Disabilities, the WHCD should identify ways to improve and expand access to advanced technologies for people living with disabilities, such as:

• Providing federal incentives for development of cost-effective solutions to address the challenges that people with disabilities face.
• Development of a DARPA-like agency for Health (HARPA) to address the market failures that often limit innovation for people with disabilities.
• Providing much-needed coordination among federal agencies on a research and development agenda and an investment plan for diverse technologies to assist those living with disabilities.

The federal government could also establish clear and straightforward reimbursement pathways for advanced technologies. Better reimbursement policies create incentives for innovations and accelerate uptake of new technologies, thereby improving quality of life improvement for people living with disabilities. Durable Medical Equipment (DME) is a class of technologies that would especially benefit from modernized reimbursement policies. DME refers to non-disposable devices used at home to assist someone with a function. Examples of DME include wheelchairs, ventilators, crutches, and CPAP machines. As discussed previously existing reimbursement policies like in home use requirements tend to be rigid in the types of DME they cover, leading to disincentives to innovate in this space. The WHCD could coordinate a strategy for enhancing innovation in DME.

The first step is to ensure that research and development funding, as well as federal insurance coverages for DME, enable innovation that maximize engagement and equipment function. The Centers for Medicare & Medicaid Services could sponsor an Innovation Pilot testing novel DME devices. The WHCD could ensure that federal initiatives such as this are coordinated and complementary. The second step is to encourage DME manufacturers to enhance collaborations with manufacturers of consumer technology (e.g., speech-to-text capabilities and auto-driving assistance) as well as with manufacturers of cutting-edge technology (e.g., brain-computer interfaces and exoskeletons). Innovation to support enhanced mobility, computer control, and other important functions for people with disabilities can in turn cross over to applications in broader consumer markets. The end result of these cycles of improvement will be better DME for people with disabilities as well as new products that benefit even those outside of the disabled community.

Priority Area 2. Communication and social engagement

The WHCD could establish an interagency agenda to develop and deliver science and technology that can reduce the isolation of Americans living with disabilities, and empower those Americans to engage with the world as they wish. Developing and implementing the science for this subset of Americans can not only result in fast improvements, but can also help develop strategies to address isolation and disengagement across America as a whole.

The impacts of social isolation have come into sharp focus during the COVID-19 pandemic. Yet people with disabilities face challenges of isolation every single day. Disabilities can make it difficult to communicate online, to speak on the phone, and/or to meet people in person. Investments need to be made to identify and deploy effective mechanisms for all people with disabilities to maintain social engagement and emotional wellness. The Biden campaign’s call for a new Assistive Technology Innovation Fund, administered by the Department of Commerce, to sponsor public-private partnerships focused on increasing the independence of people living with disabilities is a great starting point. As with DME, innovations targeted at the disabled community will ultimately cross over into the broader consumer market to help address isolation and disengagement across America as a whole.

Improving access to broadband is fundamental to ensuring that people with disabilities have the means for social and economic engagement. Broadband also fulfills a medical need, providing better access to healthcare through avenues such as remote monitoring and telehealth. However, according to a Pew Research Center survey, “[d]isabled Americans are about three times as likely as those without a disability to say they never go online.” Adults with disabilities are also less likely to have broadband at home. President Biden’s commitment to invest $20 billion in rural broadband infrastructure, direct the federal government to support cities and towns that want to build municipally owned broadband networks, and increase funding for states to expand broadband will help communities tackle the digital divide. Broadband access alone is not sufficient to create social engagement, but ensuring equitable access is an important first step.

A next step is supporting research into how today’s technologies and tools can be leveraged to better include and engage people living with disabilities. How can we best use broadband and internet-enabled platforms to promote social engagement? How can instrumental enablers of engagement like broadband and social media, accessible transportation, DME, and others be combined with behavioral and educational interventions, volunteer activities, and online communities to reduce social isolation? These are empirical questions that need study and demonstration, coupled with evidence-based policymaking, to drive a new era of inclusiveness for all people with disabilities. And if we as a nation can develop the science to address isolation for Americans with physical and communication challenges, we can use that same science to help reduce isolation for all Americans. This will lead to the more connected and inclusive nation President Biden has been calling for and that we all wish to see.

Finally, reducing social isolation and promoting engagement—as well as simply making it easier to get around one’s community —for those with disabilities demands a concerted effort to address transportation challenges. While investing in better, nimbler DME is a start, new strategies and investments are also needed to improve the transportation infrastructure for the disabled community. Making it easier for people with disabilities to go out in the world makes it easier for them to take advantage of broader opportunities for employment, volunteering, and social engagement, leading to an increase in well-being for individuals and strengthening the overall fabric of our society.

Priority Area 3. Affordable access to care

People with disabilities often have more complex medical needs as well as greater difficulty obtaining quality care. The WHCD should draft forward-leaning access to care policies that agencies can implement, including policies related to telehealth, transportation to medical appointments, and others. Additionally, many forms of disabilities typically require specialized care, including care that sometimes cannot be provided within the person’s home state. Accessing out-of-state care can be challenging, especially for people covered by Medicaid or CHIP. Even after a state Medicaid program or Medicaid Managed Care Organization (MCO) has already authorized out-of-state care, delays in accessing that care may follow. This is an area that the WHCD should examine and propose policy solutions or pilots to address.

People with disabilities often have more complex medical needs as well as greater difficulty obtaining quality care. Additionally, many forms of disabilities typically require specialized care, including care that sometimes cannot be provided within the person’s home state. The WHCD should draft forward-leaning access to care policies that agencies can implement, including policies related to telehealth, transportation to medical appointments, and access to distant specialty services.

Conclusion

The Americans with Disabilities Act (ADA) is a laudable piece of civil-rights legislation. But this 30-year-old law certainly does not solve the many challenges encountered by Americans with disabilities today. ADA current rules are insufficient – three decades ago it was about getting people into places and securing legal protections, but we’re facing a different set of problems now like access to Broadband, self-driving cars, and telemedicine.

Now is the time to put into motion a coordinated federal effort to empower people with disabilities to engage with the world on their own terms. The problems are complex and require coordination of federal agencies and leadership from and within the White House. The Establishment of the WHCD could ensure that legislative policy fixes and agency implementation go hand in glove.

The Biden campaign’s Plan for Full Participation and Equality for People with Disabilities provides a solid foundation for ensuring that people with disabilities are well served by federal policy and decision-making. A coordinating body can bring the President’s vision to life and ensure that government agencies are implementing complementary policies and avoiding bureaucratic silos. A new White House Council on Disabilities (WHCD) can serve these functions.

Within 6 months of formation, the WHCD should develop and release a detailed National Strategy on Disabilities that covers topics such as innovation in technologies that enable those living with disabilities to engage with the world as they choose, ensuring affordable access to those technologies, and promoting economic security by expanding employment opportunities for those living with disabilities. These actions can and must be informed by the communities they affect. The WHCD should prioritize listening sessions with those living with disabilities and their care partners. It will also be important to bring together other key stakeholders from the disabilities community, including nonprofits, advocates, medical providers, payers, technologists, and others. By working together, we can do much to empower people with disabilities to live independently and to the fullest.

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Competitive job markets are critical to the success of the national economy, spurring innovation while boosting wages and labor equality. The moment is ripe for the new administration to foster competitive job markets by banning noncompete agreements (noncompetes). New empirical evidence shows that noncompetes have harmful effects on job mobility, wages, competition, entrepreneurship, and equality. Yet noncompetes are widely included in employment contracts. And inconsistent state rules on noncompetes (and their enforcement) have led to employee confusion and disputes among state courts.

A tough, consistent federal strategy to eliminate noncompetes is needed. Several recent federal and state initiatives addressing noncompetes have created momentum that the new administration can build on to rapidly address this issue. The Biden-Harris administration should (1) adopt a federal ban on noncompetes, (2) actively educate the public about their labor-mobility rights (and actively support those rights), and (3) take proactive steps to ensure compliance with labor-mobility policy. Specific steps the new administration could consider include:

• Barring noncompete agreements through legislation or executive order. If barring all noncompetes is not yet feasible, a federal ban on noncompetes imposed on low-wage and unskilled workers would be a good first step.
• Issuing executive orders that (i) restrict or eliminate government contracting with companies that use noncompetes; and (ii) require employers in states that restrict noncompetes not to sign noncompetes with employees in those states, and/or to give prominent notice of the unenforceability of noncompetes in those states.
• Requiring employment contracts to include a notice about employees’ right to leave their employer.
• Banning secrecy imposed by employers regarding salary information.
• Requiring the Department of Labor, Federal Trade Commission, and Department of Justice Antitrust Division to collaborate to actively enforce laws and policies governing noncompetes nationwide.

Challenge and Opportunity

Noncompetes Hurt Workers and the Economy

Noncompete agreements are contracts that prohibit employees from working for or becoming a competitor for a certain period of time. By restricting employees from switching employers or starting their own competing businesses, noncompetes have harmful economic effects. They depress wages, reduce entrepreneurship, and impede efforts to correct inequities in labor markets. In the past decade, a wealth of research—including diverse empirical, experimental, and theoretical studies—have revealed the adverse effects of noncompete contracts and similar restrictions on the free movement of human capital. As a 2018 article states, “policymakers, economists, and legal scholars…overwhelmingly conclude that the harms of noncompetes far outweigh their potential benefits.” The research shows that lifting noncompete restrictions—thereby increasing job mobility—is good for entrepreneurship, wages, industry and regional economic growth, and equality.

Entrepreneurship

Increased enforcement of noncompetes favors large, incumbent firms. Studies find that markets become more concentrated when noncompetes are adopted and enforced. When employees sign noncompetes with established firms, start-up companies have difficulty recruiting talent. Indeed, a ban on noncompetes in California generated greater and faster innovation because employees with good ideas that their employer did not want to use were able to take those ideas elsewhere.

Wages

Noncompetes decrease wages. Employers calibrate compensation largely based on competing external offers. When external offers are reduced, employers face less pressure to increase wages. In 2015, Hawaii passed a law banning noncompete and non-solicitation clauses from employment contracts in the high-tech industry. A recent study found that Hawaii ban increased employee mobility in the high-tech sector by 11% and increased new-hire salaries by 4%. Noncompetes even decrease wages for employees who have not signed them. In a market that enforces noncompetes, wages and mobility are lower for everyone, including those not directly bound by noncompetes. These impacts can last a long time. A 2017 study found that post-employment restrictions have persistent wage-suppressing effects that last throughout a worker’s job and employment history. 

Equality

Restrictions on job mobility have a disproportionate negative effect on certain demographics. In job markets, discovering one is competitive depends on the frequency with which one is exposed to information about one’s comparative options in the market. In job markets where workers don’t often move from job to job, the “price” of labor (i.e., the terms and conditions of an employee’s contract) will lag behind an employee’s true market value. If an employee discovers their undervalued labor compensation by receiving an external (better) offer from a competitor employer, the employee can use that information to negotiate a higher salary with their current employer. If the current employer offers to match the higher salary, the competitor employer can come back with an even higher offer. This process continues until one employer backs down, leaving the employee better and more fairly compensated as a result.

The existence of noncompetes cause this process to break down by taking away employee bargaining power. Noncompetes harm equality in several ways as a result. First, noncompetes exacerbate the gender pay gap. Women are more likely to have geographic constraints based on family and spousal obligations. Noncompetes that restricts employee capacity to compete within a region therefore disproportionately hurt woman. Second, taking away employee capacity to entertain outside offers can cause historical pay gaps to persist or widen. Employees cannot discover their true value without external offers. The more external offers are available, the more equity norms and competitive pressures from mobility drive employers to raise wages as retention efforts. Third, white women and people of color are more likely to have non-monetary preferences for a workplace that is free of discrimination and hostility and that values diversity. For example, if a woman discovers that her employer systematically allows harassment of its female employees, she will have a strong interest in examining other opportunities in the market. A noncompete restricting her mobility will prevent her from escaping the discriminatory workplace.

Noncompetes are on the Rise

The use of noncompetes is on the rise in the United States. Employment agreements routinely prohibit workers from accepting a competitor’s job offer, and/or from working in a competing business for a specified period in a certain geographic area. The Treasury Department recently estimated that nearly 30 million workers are bound by noncompete provisions. A study of executive employment contracts found that 70% of the firms investigated imposed noncompetes on their top employees. A forthcoming 2021 study found that noncompetes are also common for non-executive employees with base salaries below $100,000 per year. A 2019 report noted that “the use of noncompetes is so pervasive that even volunteers in non-profit organizations, in states that do not even enforce them, are asked to sign away their post-employment freedom.”

Workers currently have limited recourse when it comes to contesting noncompetes. Court decisions in cases involving noncompetes are highly unpredictable, and litigation can be prohibitively expensive and burdensome for individual employees. Some states—recently including Massachusetts, Washington, Maryland, and New Hampshire—have passed laws voiding most noncompetes, but this state-specific legislative patchwork can be difficult for workers to understand. Many employees, especially those outside the professional class, end up complying with noncompetes even if they aren’t enforceable in the state in which they work (or are planning to move for a new job). Moreover, more and more people are employed at companies with a national presence. Such companies often demand adherence to a noncompete nationwide, even for employees in a state that won’t enforce noncompetes. Inconsistent state rules have also led to conflicts across state lines when an employee bound by a noncompete moves to a state that doesn’t enforce them. This has resulted in a “race to the courthouse” when employees change jobs, as each side tries to get its own state law to apply. It has even led to the unseemly spectacle of courts in different states attempting to prohibit each other from enforcing their respective state policies. Finally, the complex legal landscape surrounding noncompetes further entrenches established companies. Companies with substantial legal and financial resources can be more aggressive in using noncompetes to drive out competition even when their legal claims are on weak grounds. Incumbents may even use a reputation for suing employees who leave as a strategy to deter other employees from leaving.

National Leadership is Needed

Noncompetes aren’t just bad for workers, but for our economy and society as a whole. We do better when workers can easily move between jobs. Increased mobility makes it easier for employees to find employers that most value their skills, and for employers to find employees who are good fits. But without guaranteed labor mobility, the anti-competitive impulses of individual firms create a collective-action problem. Smart policy is needed to ensure everyone benefits from a continuous, high-quality, and flexible labor pool over time. The problem of noncompetes is not a problem that can be solved by states on their own. National leadership is needed. Several federal bills limiting the use of noncompetes (either entirely or just for low-wage workers) have already been drafted. The White House issued a Call for Action in 2016 urging states to limit the use of post-employment restrictions. Also in 2016, the U.S. Treasury Department issued a report on noncompetes warning that when noncompetes are enforced, “innovations spread more slowly, possibly inhibiting the development of industrial clusters like Silicon Valley.” In 2020, the Federal Trade Commission convened a meeting to consider a rule prohibiting noncompete clauses. But so far the FTC has taken no action.

The Biden-Harris Administration can build on this momentum to eliminate noncompetes in the United States once and for all.

Plan of Action

To support talent mobility and enhance human capital, the Biden-Harris Administration should (1) adopt a federal ban on noncompetes, (2) actively educate the public about their labormobility rights (and actively support those rights), and (3) take proactive steps to ensure compliance with labor-mobility policy. Below, we recommend specific steps that the new administration could take towards these goals.

Adopt a Federal Ban on Noncompetes

A federal ban on noncompetes could potentially be achieved by a Federal Trade Commission (FTC) rule barring noncompetes, action through the Department of Justice (DOJ), an executive order, and/or legislation. If barring all noncompetes is not yet politically feasible, targeting noncompetes imposed on low-wage and unskilled workers would be a good first step. 

FTC rule/DOJ action

The FTC and the DOJ’s Antitrust Division have only recently started to consider anti-competitive practices in the labor market to be within their scope of regulating competition and unfair trade practices. The FTC could use its regulatory power under Section 5 of the FTC Act’s prohibition on “unfair methods of competition” to issue a federal rule to ban noncompetes nationwide in appropriate circumstances, such as concentrated markets. The FTC could enforce this rule by bringing action against employers who use, or seek to use, noncompetes to restrict employee mobility in ways that interferes with competition. 

Moreover, California’s Section 16600 and Section 1 of the federal Sherman Act share the language of prohibiting contracts “in restraint of trade.” The California law has been consistently interpreted to ban employment noncompetes. Using this interpretation as precedent, the DOJ could leverage the language in Section 1 of the Sherman Act to ban employment noncompetes nationwide in appropriate circumstances, such as in concentrated markets.

Executive Order

The Biden-Harris administration can also issue executive orders that (1) restrict or eliminate government contracting with companies that employ noncompetes; (2) require employers in states that restrict noncompetes not to sign them with employees in those states, and/or to give prominent notice of the unenforceability of noncompetes in those states.

Legislation

Two recently proposed federal bills propose legislative solutions to the problem of noncompetes. The Workforce Mobility Act proposed in 2018 would prohibit and prevent enforcement of noncompetes for employees who “engage in commerce or in the production of goods for commerce.” Under the proposed bill, employers would be fined for each employee subject to a violation of this law, or for each week the employer was in violation. The House version of the bill goes further, specifically stating that noncompetes may violate antitrust laws.

The Mobility and Opportunity for Vulnerable Employees (MOVE) Act of 2015—proposes a full or partial ban on noncompetes, in addition to barring noncompete agreements entirely for low-wage workers. The bill would also require companies to notify job applicants ahead of time if they would be asked to sign a noncompete if hired.

The new administration could work with Congress to revive and pass one or both of these bills. Any federal bill governing noncompetes should also grant employees a private right of action for damages if they are asked to sign an overly broad noncompete agreement.

Actively Support and Publicize Labor-Mobility Rights

Even in states that ban noncompetes, a significant number of employers still require employees to sign them. For example, employers in California—a state that bans noncompetes—insert noncompetes into their employment contracts at rates similar to non-California employers. Because employees in these states may not be aware that noncompetes are illegal, unlawful noncompetes can have a significant deterrent effect on employee mobility. The administration should act to educate the public about their labor-mobility rights, and to crack down on employers unlawfully promulgating noncompetes. The Biden-Harris administration should issue an executive order directing the Department of Labor, FTC, and the DOJ Antitrust Division to collaborate to actively enforce existing labor-mobility laws, and to pursue some or all of the actions below.

Require “right-to-leave” notice in employment contracts

The Biden-Harris Administration should require employment contracts to include a notice about employees’ right to leave their employer. The Defend Trade Secrets Act (DTSA), enacted by Congress in 2016, provides a model for this type of mandatory notice. The DTSA gives employees immunity from criminal or civil liability for reporting illegalities at a company even if reporting reveals trade secrets. The DTSA requires employers to include notice of this immunity in “in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.” Similarly, the Federal Government should require employment contracts to include a clause about the rights of an employee to compete with their previous employer after leaving a job. This clause should be required for all contracts in states that ban noncompetes post-employment. If a federal noncompete ban is enacted, it should apply nationwide. The Federal Government could further promote market competition by amending the DTSA to include a notice on the limits of trade secrets explaining that general know-how and information that is readily ascertainable from public searches cannot be deemed secret and proprietary.

Enforce mobility rights beyond formal noncompetes

In employment contracts, restrictive covenants do not simply appear as a formally labeled “noncompete clause”. Employment contracts regularly include other restrictive provisions such as requirements for non-solicitation of customers and coworkers, pre-innovation assignment agreements, nondisclosure agreements, and non-disparagement clauses. Restrictions like these impose harms similar to noncompete clauses: preventing employee mobility, slowing innovation, stifling start-ups, and concentrating industries. Customer non-solicitation requirements in particular effectively function as noncompetes “because a business without clients is like a pool without water.” Coworker non-solicitation clauses essentially reduce the job opportunities of every former co-worker that the employee in question knows, regardless of whether those coworkers agreed to be part of a restrictive regime. Nondisclosure agreements, theoretically designed to protect trade secrets, are often structured to include not just proprietary knowledge, but also readily ascertainable knowledge about customers and coworkers. The knowledge that a departed employee would use to solicit a former coworker—knowledge pertaining to a person’s skills, talent, personality, experience, and salary—is not an employer’s trade secret and should not be restricted by contract. California courts have recently recognized that employee non-solicitation clauses comprise unlawful restraints on trade under Section 16600. The new administration can build on precedent set in California to control proliferation of overly restrictive provisions in employment contracts nationwide.

Ban salary secrecy

The ability to reveal one’s salary to co-workers and others in the industry is protected by both federal and state law. The National Labor Relations Board (NLRB) holds that prohibiting any employee—unionized or not—from discussing salaries violates their rights under the National Labor Relations Act to engage in concerted activity for mutual aid. The NLRB has specifically ruled that confidentiality agreements are invalid when they contain provisions that “prohibit employees from disclosing certain personnel information unless authorized by the Company.” Many state laws also make it illegal for any employer to prohibit pay discussions among employees. Digital platforms such as LinkedIn, Glassdoor, Salary.com, and SalaryExpert make compensation information easily searchable. Yet employers have attempted to claim that use of salary knowledge in recruitment efforts by a former employee of a co-worker can amount to a breach of a nondisclosure agreement. The administration should extend the NLRB rule beyond the context of labor unions, banning salary secrecy.

Ensure Compliance with Labor-Mobility Policy

As discussed above, litigation alone cannot address the widespread use of noncompete clauses. Employees often lack the money, time, expertise, or will needed to challenge a noncompete in court. The Federal Government must instead be proactive in understanding the effects that common employer practices and provisions have on labor mobility. Several state attorneys general have taken such a proactive stance. Illinois and New York in particular have recently investigated employers who required their employees to sign unenforceable contracts. These states used consumer laws worded similarly to the federal FTC Act as bases for prosecution. For example, Illinois’s Consumer Fraud and Deceptive Business Practices Act prohibits “unfair methods of competition and unfair or deceptive acts or practices.” The state attorney general’s office explains that: “An ‘unfair practice’ is one that (1) offends public policy as established by statute, common law or otherwise, (2) is immoral, unethical, oppressive, or unscrupulous, or (3) causes substantial injury to consumers. A non-compete that violates existing common law or statutory restrictions could satisfy each prong of this test, creating a cause of action in states with similar consumer protection statutes or strong unfair competition laws.”80 The Department of Labor and the FTC should collaborate on investigating employers who require their employees to sign unjustifiable noncompetes, using the FTC Act as grounds for investigation.

Conclusion 

The modern economy depends on employee mobility. Our workforce needs to be able to respond to sudden disruptions like COVID-19, which radically shifted demand for workers, and to longer-term geographic and economic trends. Employees should have the freedom to take the jobs that are best for them, or to start new companies if they have innovative ideas that otherwise will never see the light of day. 

Unfortunately, companies are too often able to prevent employees from leaving, either because the law permits it in many states or because employees don’t know their rights. This control depresses wages and employee initiative. It reduces innovation and the adoption of new technologies. And it keeps people stuck in dead-end jobs when they have better alternatives available to them. The current hodgepodge of state laws and the threat of enforcement of a noncompete means that even states that ban noncompetes can’t get the full benefit of the protections they provide to their workers and innovators. It is time for the Federal Government to step in.

Summary

The United States needs to radically enhance its efforts to build community disaster resilience. The frequency and cost of billion-dollar weather and climate disasters have increased significantly over the past decade. According to the National Oceanic and Atmospheric Agency’s estimates, the direct costs of disasters between 2018 and 2019 amounted to over $136 billion. And 2017 Hurricanes Harvey, Irma, and Maria resulted in over $265 billion in damage and displaced many communities. Moreover, accelerated urbanization and climate change continue to exacerbate communities’ vulnerability to climate disasters, rendering the current disaster mitigation, recovery, and emergency response policies untenable in the near future.

Resilience has served as an organizing principle for policymakers, first responders, and businesses in marshalling resources to reduce community vulnerability, stimulate recovery, and ensure reliable access to critical services (e.g., energy, water, shelter, food, health, ecosystems services and mobility) in the aftermath of climate disasters. However, the current set of reactive disaster recovery efforts and resilience policies have proven to be inefficient and costly, contributing to the widening of the `climate gap’ and entrenching vulnerability traps, particularly among marginalized and disadvantaged communities.

The Biden-Harris Administration should invest in information technology, data transparency and convergence research to build data-enabled predictive capabilities that anticipate shifts in communities’ demand for critical services under compound climate disasters, and inform effective resource allocation to equitably mitigate the impacts of climate change. These investments will not only enhance stewardship of taxpayer dollars, create jobs and bolster the economy, but will also shrink the rapidly widening climate gap and save lives.