Failure to obtain informed consent would be considered a deceptive or unfair practice subject to enforcement by the Federal Trade Commission (FTC). The bill also directs the FTC to study the efficacy of data de-identification given AI’s advancement.
Importantly, the legislation attempts to define what constitutes express informed consent. A simple contract of adhesion or inclusion buried somewhere in lengthy terms and conditions would not suffice “such consent is obtained independently from the covered entities’ terms of service agreement”). Specifically, the legislation would prohibit conditioning use of a service on providing consent for the use of consumer data in developing AI.
The legislation directs the FTC to “provide a standard for what constitutes a clear and conspicuous disclosure.”
Consumers would have to be informed of their legal rights as well as procedures for revoking consent after consent is obtained (“the option to withhold or revoke consent shall be at least as prominent as the option to accept and shall take the same number of steps or fewer as the option to accept.” The FTC would also have to consider and attempt to minimize consumer fatigue related to disclosures.
The contemplated disclosures—and their design—have wider application outside of AI development and provide an impetus for independent rulemaking in other contexts where consumer disclosure is required.
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