The American Civil Liberties Union filed a lawsuit against the U.S. Attorney General on June 29, arguing that a section of the Computer Fraud and Abuse Act unconstitutionally criminalizes research aimed at determining whether online algorithms result in discrimination against certain races, genders, and other minority groups.

“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 and an attorney on the case. “This law perversely grants businesses that operate online the power to shut down investigations of their practices.”

The law criminalizes the violation of a website’s terms of service, which often prohibit the creation of multiple or dummy accounts, as well as the automated collection of publicly available data such as ads and search results. Researchers, however, use these fake accounts to determine whether websites’ algorithms are serving up content based on discriminatory demographics.

“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,” Bhandari and Rachel Goodman,  a staff attorney for the ACLU Racial Justice Program and attorney on the case, explain in a blog post about the lawsuit.

The ACLU argues that physically conducted investigations of a comparable nature, such as testing whether similar individuals of different races are offered different housing options, are encouraged by Congress and the courts. This law, however, restricts such investigations when they are conducted online.

The Federal Trade Commission (FTC) has already acknowledged that there is discrimination potential in the use of big data, hosting a public workshop in September 2014 to address just such concerns.

“Workshop participants and others have noted how potential inaccuracies and biases might lead to detrimental effects for low-income and underserved populations,” a January 2016 FTC report said. “For example, participants raised concerns that companies could use big data to exclude low-income and underserved communities from credit and employment opportunities.”

The White House, in recognition of the FTC report, released its own series of case studies in May 2016 on the same issue.

The plaintiffs in the suit include Christian Sandvig, an associate professor of information and communication studies at the University of Michigan; Karrie Karahalios, an associate professor of computer science at the University of Illinois; First Look Media Works; and Alan Mislove and Christo Wilson, associate and assistant professors of computer science at Northeastern University, respectively.

“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.”

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Jessie Bur
Jessie Bur
Jessie Bur is a Staff Reporter for MeriTalk covering Cybersecurity, FedRAMP, GSA, Congress, Treasury, DOJ, NIST and Cloud Computing.