The ACLU is suing to repeal parts of the Computer Fraud and Abuse Act (CFAA), a 1980s-vintage hacking law that makes it a felony to "exceed authorization" on a remote computer, and which companies and the US government have used to prosecute researchers who violated websites' terms of service.
The CFAA is the statute under which Aaron Swartz was prosecuted; Swartz had used a script to download scholarly papers from the MIT network. Though he was allowed to access and download these papers, the network's terms of service required him to access them by manually clicking on links, instead of using a script. Because Swartz violated these terms, a US federal prosecutor argued that he should spend 35 years in prison. Swartz hanged himself in 2013, as his case was taking a turn for the worse.
Later that year, Andrew "Weev" Auernheimer was imprisoned for editing the URL showing in his location bar while he viewed his billing details for AT&T, revealing that AT&T was exposing over a hundred thousand of its customers' financial details to anyone who repeated the tactic (Auernheimer was later released after a successful appeal).
Given the severe penalties for CFAA violations, it's not surprising that researchers are leery of running afoul of its provisions. A group of researchers — academics and journalists — say that they are unable to scrape websites in order to determine whether the companies behind them are engaged in illegal discrimination (for example, to see whether men are showed higher-paying jobs than women on job-search sites, or whether people of color are "steered" to high-interest loans when they qualify for cheaper, better forms of credit).
Even when companies don't deliberately discriminate, their software may end up illegally amplifying the existing bias in our system, thanks to well-understood problems with machine learning systems (if women are generally paid less than men, a machine learning system may determine that higher-paying jobs are a better match for male searchers).
The ACLU is suing on behalf of these researchers, arguing that the First Amendment protects the kind of research that the CFAA prevents.
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." 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").
The problem is that those are the very methods that are necessary to test for discrimination on the internet, and the academics and journalists who want to use those methods for socially valuable research should not have to risk prosecution for using them. 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.
As more and more of our transactions move online, and with much of our internet behavior lacking anonymity, it becomes easier for companies to target ads and services to individuals based on their perceived race, gender, or sexual orientation. Companies employ sophisticated computer algorithms to analyze the massive amounts of data they have about internet users. 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. In one example, a Carnegie Mellon study found that Google ads were being displayed differently based on the perceived gender of the user: Men were more likely to see ads for high-paying jobs than women. In another, preliminary research by the Federal Trade Commission showed the potential for ads for loans and credit cards to be targeted based on proxies for race, such as income and geography.
ACLU Challenges Computer Crimes Law That is Thwarting Research on Discrimination Online [Esha Bhandari and Rachel Goodman/ACLU]
(Image: Allway Tools 3-Inch Stiff Steel Metal Wall Scraper, Amazon)