IN THE AGE of big data analytics, the proprietary algorithms web sites use to determine what data to display to visitors have the potential to illegally discriminate against users. This is particularly troublesome when it comes to employment and real estate sites, which could prevent users from having a fair crack at jobs and housing simply by failing to display certain listings to them based on their race or gender.
But four academic researchers who specialize in uncovering algorithmic discrimination say that a decades-old federal anti-hacking statute is preventing them from doing work to detect such discrimination. They say a provision of the Computer Fraud and Abuse Act could be used to criminally prosecute them for research that involves scraping publicly available data from these sites or creating anonymous user accounts on them, if the sites’s terms of service prohibit this activity.
The researchers, along with First Look Media Works, which publishes The Intercept, filed a lawsuit today against the Justice Department, asserting that opening fake profiles to pose as job and housing seekers constitutes speech and expressive activity that is protected under the First Amendment. They further argue that because sites can change their terms of service at any time without informing visitors, this can suddenly turn any speech or activity on the site into a criminal act—a violation, they say, of the Fifth Amendment right to due process, which requires proper notice to the public of what constitutes criminal behavior…
