This morning the American Civil Liberties Union (ACLU) filed a lawsuit with the U.S. Department of Justice contending that the Computer Fraud and Abuse Act’s criminal prohibitions have created a barrier for those wishing to conduct research and anti-discrimination testing online.
The suit, which was filed by the ACLU on behalf of a group of academic researchers, computer scientists and journalists seeks to remove that barrier to allow for third-party testing and research into potential online discrimination.
The CFAA, which has been used in many high-profile hacking cases, has long been criticized as providing a ‘blank check’ to prosecutors, as it states that anyone breaking a website’s terms of service in order to gather information is guilty of a federal crime.
The ACLU is fighting that prohibition with the Department of Justice, stating that the methods that can best be used by researchers to uncover hidden biases can open those researchers up to prosecution under the CFAA.
A public statement about the lawsuit on the ACLU website states:
“The CFAA violates the First Amendment because it limits everyone, including academics and journalists, from gathering the publicly available information necessary to understand and speak about online discrimination.”
Researchers often use what is referred to as algorithmic research – using a range of different inputs into a closed algorithm to help uncover hidden bias. But as standard terms of service often include prohibitions on providing false information, creating multiple accounts, or automated ‘scraping’ of publicly available information, the standard research protocol for uncovering discriminatory practices is illegal under the CFAA.
In their statement, the ACLU says that it recognizes that discriminatory results in search algorithms may be intentional, or an ‘inadvertent outcome of the way big data is structured and used’. However, they maintain that the data should be open to third-party testing for discriminatory practices.
Companies collect ‘big data’ on their users in order to personalize advertisements and offers tailored to the individual, but those offers may be based on a user’s membership in a group protected by civil rights laws. The ACLU is looking for a Department of Justice review of the CFAA to ensure that third party testing for discrimination is no longer illegal, and to ensure continued protection of user’s First Amendment rights,