The American Civil Liberties Union (ACLU) field a lawsuit against the U.S. government saying that The Computer Fraud and Abuse Act, which was designed to stave off hackers, in fact helps racist sites fly under the radar.
Under the law, any user that violates a site’s Terms of Service can face charges and get convicted. This was the case of the famous computer programmer and digital rights hacktivist Aaron Hillel Swartz who committed suicide after having been sentenced to 35 years in prison for breaking into MIT’s network and downloading thousands of academic journal articles for research purposes.
The ACLU claims that the law is too burdening for journalists and researchers who will sometimes need to violate sites’ terms of service for their work to expose online discrimination.
The federal rules consider any “unauthorized access” of a computer system illegal and promise hefty fines and prison time to hackers and researchers that may use fake IDs and phony accounts alike.
One method researchers use to learn whether a website is discriminatory is to create fake online profiles that lie about age, gender, or race. Yet, these profiles are a direct violation of some sites’ terms of service and thus illegal under the federal law.
ACLU lawyers argued that in order to test how fair a website really is, researchers often need to be dishonest, especially when they seek a truthful answer to racist questions. Paradoxically, in the real world researchers can lie about their intentions to get a job or home when they want to document instances of discrimination.
For instance, ACLU testing involves lying about wanting a job on careers websites to test the site’s propensity to discriminate on age, sex, or race. ACLU calls these lies “socially useful misrepresentations” which should be protected by the U.S. government in the digital world too.
ACLU also said that it is as simple as clicking the “I Agree” button under a company’s terms of service to allow the Department of Justice to prosecute you if you lied about your identity and you are considered a bad actor.
Too often firms that mine online private data for commercial purposes, also known as data brokers, discriminate against low-income minorities. During a 2014 investigation, the FTC found that these firms call low-income communities of African-Americans and Hispanics “Mobile Mixers” and “Urban Scrambles.”
ACLU suspects that retailers, real estate agents and businesses may also discriminate against their customers and employees.
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