The American Civil Liberties Union is challenging a key computer crime law, arguing that it violates the Constitution and specifically prevents researchers from identifying systemic discrimination, such as those related to housing and job searches.
The group is backing several anti-discrimination researchers and First Look Media — publishers of the Intercept — in a legal challenge filed Wednesday. At issue is the Computer Fraud and Abuse Act (CFAA). This law, among other things, makes it a jailable offense to break the terms of service of any Internet company. (That means that, technically, using a pseudonym on Facebook or lying to let a 12-year-old create a Google account breaks the law.)
The researchers and journalists say that breaking those rules can be necessary for research, and argue that simply violating websites' rules shouldn't carry such a heavy penalty. In particular, the lawsuit says that those looking to investigate whether housing and job sites discriminate against applicants often must create several fake accounts to test how sites' algorithms view similar candidates.
"The law has long protected such socially useful misrepresentation in the offline world," the complaint reads. "In the online world, however, conducting the same kind of audit testing generally violates websites’ terms of service," the filing notes, which in turn violates the CFAA.
The complaint also argues that researchers must be able to scrape sites — using tools to pull massive amounts of information from them — to collect the datasets they need to conduct their research. Companies tend not to like this, as it pulls what they may consider proprietary data from the businesses they've built.
The researchers and the ACLU argue that the CFAA, as written, violates the First and Fifth amendments by preventing news organizations and researchers from conducting their investigations without fear of harsh punishment. They also argue that the law puts too much power in the hands of companies, which can change their terms at any time — and, in doing so, criminalize any number of behaviors.
The CFAA has been sharply criticized in the past for being overly broad, poorly defined and disproportionately harsh. The debate came to the fore after the 2013 suicide of noted programmer Aaron Swartz, who was facing jail time for scraping information from the academic site JSTOR.
A reform law, called Aaron's Law, was introduced some months later, and proposed that those who violate terms of service should be punished for any damage caused, rather than simply for breaking the rules. The bill has languished in Congress ever since.
By highlighting how the CFAA specifically prevents further research into housing and job discrimination, the ACLU and researchers have found a way to use the government's own priorities against itself. The Obama administration has repeatedly called for close study of whether companies use big data in a discriminatory way. The Federal Trade Commission, for example, asked explicitly whether the use of big data is inclusive or exclusive. And the White House itself released a major report last month cautioning that, used poorly, big data can perpetuate damaging stereotypes.
"Without deliberate care, these innovations can easily hardwire discrimination, reinforce bias, and mask opportunity," the report's authors — including U.S. chief technology officer Megan Smith — said in a blog post.