ACLU Challenges Law Preventing Studies on ‘Big Data’ Discrimination
First Amendment Lawsuit Brought on Behalf of Academic Researchers and Journalists Who Fear Prosecution Under the Computer Fraud and Abuse Act
A group of university professors and journalists filed a lawsuit on June 29, 2016, arguing that a federal computer crimes law unconstitutionally criminalizes research aimed at uncovering whether online algorithms result in racial, gender, or other illegal discrimination in areas such as employment and real estate.
The case, brought by the American Civil Liberties Union, challenges a section of the Computer Fraud and Abuse Act that makes it a crime to violate a website’s terms of service. Those terms, which are arbitrarily set by individual sites and can change at any time, often prohibit things like creating multiple accounts, providing inaccurate account information, or using automated methods to collect publicly available data like search results and ads.
Those same practices are used by researchers to test whether sites are, for example, more likely to show higher interest rate loan ads to people of color or show higher paying jobs to men who search employment listings. Studies like these necessarily require researchers to create dummy online identities and record what content is served up to those identities.
The discriminatory results are often the result of algorithms relying on “big data” analysis to classify people based on their web browsing habits or other information collected by data brokers — and then steer them towards various products or services.
Equivalent studies to find discrimination offline — for example, where pairs of individuals of different races attempt to secure housing and jobs and compare outcomes — have been encouraged by Congress and the courts for decades in order to ensure that civil rights laws like the Fair Housing Act are not being broken. Such laws prohibit practices that result in discrimination, regardless of whether it is intentional.
“The work of our clients has a clear social benefit and is protected by the First Amendment,” said Esha Bhandari, staff attorney with the ACLU Speech, Privacy, and Technology Project. “This law perversely grants businesses that operate online the power to shut down investigations of their practices.”
The plaintiffs include Christian Sandvig, an associate professor of information and communication studies at the University of Michigan, and Karrie Karahalios, an associate professor of computer science at the University of Illinois. They are conducting a study to determine whether the computer programs that determine what to display on real estate sites are discriminating against users by race or other factors.
“Being able to run socially beneficial studies like ours is at the heart of academic freedom,” said Sandvig. “We shouldn’t have to fear prosecution just because we’re doing our jobs.”
The other academic plaintiffs are Alan Mislove and Christo Wilson, associate and assistant professors of computer science at Northeastern University, respectively. They are conducting a study to test whether the ranking algorithms on major online hiring websites produce discriminatory results by systematically ranking specific classes of people — such as people of color or women — below others.
“Big data-based targeting opens up vast potential for discrimination against marginalized communities, including people of color, women, and others,” said Rachel Goodman, staff attorney with the ACLU Racial Justice Program. “This law stymies the ongoing fight for civil rights as our day-to-day habits and transactions move steadily online.”
The ACLU also represents First Look Media, which publishes The Intercept. The journalists there wish to investigate websites’ business practices and outcomes, including any discriminatory effects of big data and algorithms. The work of journalists often involves collecting public data from websites and other activities that may violate terms of service. The lawsuit argues that the potential for prosecution under the CFAA has an impermissible chilling effect, violating the freedom of speech and of the press protected by the First Amendment.
In reports from the White House and the Federal Trade Commission, the federal government itself has recognized the potential danger for big data algorithms to reinforce racial, gender, and other disparities.
The lawsuit, Sandvig v. Lynch, was filed in the U.S. District Court for the District of Columbia. The attorneys on the case are Bhandari and Goodman of the ACLU and Arthur B. Spitzer and Scott Michelman of the ACLU of the Nation’s Capital.
A blog post written by the attorneys on the case: