A group of scholars and journalists joined with the American Civil Liberties Union (ACLU) today (June 29) to file a First Amendment challenge to a law that criminalizes violating a website’s service terms. The suit aims to protect those who research discrimination in big data.
“This lawsuit challenges the constitutionality of a provision of the Computer Fraud and Abuse Act (CFAA) … a federal statute that prohibits and chills academics, researchers and journalists from testing for discrimination on the internet,” reads the complaint behind Sandvig v. Lynch.
The ACLU elaborated in a statement that people who investigate algorithms that may be biased against people from marginalized groups (like the ones in criminal profiling software that ProPublica challenged last month) often must break terms of service agreements to conduct their research. Under the CFAA, steps like creating multiple accounts or deliberately portraying oneself as different in any way—depending on individual websites’ user agreements—can lead to criminal prosecution. The complaint elaborates on the importance of this research:
The CFAA’s prohibition on conducting robust research into online discrimination is of real concern given growing indications that proprietary algorithms are causing websites to discriminate among users, including on the basis of race, gender and other characteristics protected from discrimination under the civil rights laws. Transactions involving the core social goods covered by federal and state civil rights laws—e.g., housing, credit and employment—are increasingly taking place online. Simultaneously, actions on the internet are losing much of their anonymity, as “cookies” and other tracking technologies allow websites to access all kinds of information about visitors, including information that may reveal race, gender, age and sexual orientation.
Companies that operate commercial websites have access to massive amounts of data about internet users and can employ sophisticated computer algorithms to analyze that data. Such “big data” analytics are used by many websites, and usage is constantly increasing and expanding. Big data enables behavioral targeting, meaning that websites can steer individuals toward different homes or credit offers or jobs—including based on their membership in a class protected by civil rights laws. Behavioral targeting opens up vast potential for discrimination against marginalized communities, including people of color and other members of protected classes.
“Being able to run socially beneficial studies like ours is at the heart of academic freedom,” said University of Michigan scholar and plaintiff Christian Sandvig. “We shouldn’t have to fear prosecution just because we’re doing our jobs.”
Three other scholars researching algorithm-based discrimination join Sandvig as plaintiffs in the suit, as well as The Intercept publisher First Look Media. The complaint, filed in U.S. District Court for the District of Columbia, lists U.S. Attorney General Loretta Lynch as the defendant.
Read the full suit here.