ACLU sues feds over anti-hacking law

ACLU sues feds over anti-hacking law
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The American Civil Liberties Union (ACLU) on Wednesday sued the government over a law it says hampers research into online discrimination.

The organization is representing Intercept publisher First Look Media’s nonprofit arm and researchers who are challenging the Computer Fraud and Abuse Act (CFAA). They say the law wrongly criminalizes methods to research and report on the issue.

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The law originated in the 1980s in an attempt to thwart increasing cyber crime. The law makes it illegal not to follow a website's terms of service. That can make it unlawful to sign up for more than one account, for example, or collect data on the sites using software. 

But those methods are also employed by researchers studying whether algorithms online disproportionately harm certain groups, including along racial and gender lines, according to the ACLU. The complaint alleges the law violates the First Amendment.

“This chill arises because the CFAA makes it a crime to visit or access a website in a manner that violates that website’s terms of service, while robust audit testing and investigations to uncover online discrimination require violating common website terms of service,” the plaintiffs said in their filing.

“Without online audit testing, policymakers and the American public will have no way to ensure that the civil rights laws continue to protect individuals from discrimination in the twenty-first century.”

The ACLU noted that, increasingly, markets are being created online for housing and other basic goods and services.

The potential for algorithms to discriminate against users in certain demographic groups, and particularly against people of color, is a problem that is becoming more prominent.

Tagging software for Google Photo and Flickr, for example, labeled black faces last year as belonging to gorillas or apes. And some have raised concerns about software used by the criminal justice system to predict whether a defendant poses a future risk.