ACLU suit challenges CFAA for thwarting studies on discrimination

Criminal prohibitions posed by the Computer Fraud and Abuse Act (CFAA) stand in the way of “research and testing necessary to uncover online discrimination in everything from housing to employment” lawyers for the American  Civil Liberties Union (ACLU) said Wednesday, explaining a lawsuit filed Wednesday on behalf of journalists, academic researchers and computer scientists.

“Our plaintiffs want to investigate whether websites are discriminating, but they often can't. Courts and prosecutors have interpreted a provision of the CFAA —one that prohibits individuals from ‘exceed[ing] authorized access' to a computer—to criminalize violations of websites' ‘terms of service,'” ACLU Staff Attorneys Esha Bhandari and Rachel Goodman wrote in a blog post. Terms of service are the rules that govern the relationship between a website and its user and often include, for example, prohibitions on providing false information, creating multiple accounts, or using automated methods of recording publicly available data (sometimes called ‘scraping').

Those methods, though, are the very ones the plaintiffs need “to test for discrimination on the internet,” the attorneys wrote, noting that since the number of online transactions has swelled and the lack of anonymity, it's easier for companies to target ads and services to users according to gender, race or sexual orientation.

“Companies employ sophisticated computer algorithms to analyze the massive amounts of data they have about internet users,” they wrote. “This use of “big data” enables websites to steer individuals toward different homes or credit offers or jobs—and they may do so based on users' membership in a group protected by civil rights laws.” 

Bhandari and Goodman contended that the CFAA is in violation of the First Amendment because it curbs people “from gathering the publicly available information necessary to understand and speak about online discrimination.”

Sanvig v. Lynch, filed in U.S. District Court for the District of Columbia seeks to take on “the overbroad and indeterminate nature of the

Challenged Provision [that] prohibits and chills a range of speech and expressive activity protected by the First Amendment,” according to court documents. The provision is in violation of the due process clause and alsoconfers an “unconstitutional delegation of power” to private entities that lets them “determine which conduct is criminal,” the suit said.

“The CFAA perversely grants businesses that operate online the power to shut down this kind of testing of their practices,” the ACLU attorneys wrote. “Even though terms of service are imposed by websites, whose interests may be adverse to anti-discrimination testing, the CFAA makes violating those terms a crime, even where there is no harm to a business.”

The pair noted longstanding complaints about the CFAA, including its vagueness and broad application which would scoop up “everyday internet behavior” in its net. “It is also nearly impossible to comply with terms of service at all times, both because they're so lengthy and because they can change at any time,” they wrote. “Most users can't realistically read them for every single website visited (each time they visit!).”

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