Online Ad Researchers Challenge Anti-Hacking Law
by Wendy Davis, Staff Writer @wendyndavis, June 29, 2016
The White House recently warned that companies can draw on so-called Big Data to discriminate against people based on race or class.
The administration’s well-publicized paper specifically mentioned research by Latanya Sweeney, former chief technologist at the Federal Trade Commission, who reported that Google searches for black-identifying names, like “DeShawn and Darnell,” were more likely to generate ads that contain the word “arrest” than searches for white-identity names, like “Geoffrey and Jill.”
Several years prior to Sweeney’s report, The Wall Street Journal investigated price discrimination at Staple’s e-commerce site. For the project the newspaper built software that enabled it to simulate visits from different computers.
Now, a group of researchers and the news organization First Look Media say they want to conduct online tests to determine whether Web sites are considering users’ presumed race when displaying real estate and job ads.
The problem, according to the researchers, is that the Computer Fraud and Abuse Act — a 1980s era anti-hacking law — potentially criminalizes this kind of testing. That’s because the Computer Fraud and Abuse Act includes provisions that make it a crime for users to exceed their “authorized access” to a Web site. Arguably, people can exceed their authorized access to a site by violating its terms of service.
But according to the researchers, the terms of service at many of the most popular real estate and job sites effectively prohibit testing — even for purposes of uncovering discrimination. In many cases the sites’ terms of service prevent scraping, and prohibit people from entering incorrect information. Some popular job sites specifically tell users not to create more than one account.
Today, the researchers asked a judge to declare a portion of the Computer Fraud and Abuse Act unconstitutional on the grounds that it violates their free speech rights as well as their right to due process of law.
“The plaintiffs in this case, academics and a media organization, wish to conduct audit testing or related investigative work to determine whether online websites — including those that advertise or provide a means by which individuals can apply for housing and employment — are treating users differently based on their membership in a protected class, but they are limited by the ToS of target websites,” the researchers allege in a lawsuit brought in Washington, D.C. federal court by the ACLU. “Some of the plaintiffs have already engaged in such research and testing activities and must now fear prosecution.”
The researchers add that the law’s prohibition on exceeding “authorized access” to sites effectively criminalizes activity that is otherwise perfectly legal.
“Any speech or expressive activity that the private operator of a website has prohibited as a condition of access to its website becomes a criminal violation,” the lawsuit alleges. “In a good number of cases, a website’s ToS will prohibit speech that cannot constitutionally be prohibited.”
MediaPost.com: Search Marketing Daily
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