Supreme Courtroom Ruling is a Win for Investigative Journalists and Civil Rights Researchers

Earlier this week, the Supreme Court issued a ruling interpreting the Computer Fraud and Abuse Act (CFAA), a federal law against hackers from the 1980s that has proven unsuitable for the modern Internet. The Supreme Court ruling in the Van Buren v. United States case, which limits the scope of the CFAA, will have positive ramifications for online civil rights testing, research and data journalism.

At first glance, the decision may not be obviously related to the enforcement of civil rights. The case concerned a police officer who, for money, searched a law enforcement database for information on a license plate. The officer was charged with “exceeding” criminal charges[ing] Authorized Access ”according to the CFAA for violating his employer’s computer usage guidelines. The Supreme Court ruled that not only should the CFAA be read to criminalize violations of computer usage guidelines, but instead prohibit behavior similar to breaking and entering – that is, accessing parts of a computer that someone cannot access at all is allowed to access.

This ruling is vital to the civil rights investigations and data journalism of the 21st century that hold powerful platforms accountable. For many years the federal government and lower courts have interpreted the phrase “exceeding authorized access” in the CFAA to prohibit violations of website terms of use – those unilaterally imposed, selfish terms written by corporations that most Internet users never read . As the Supreme Court recognized, under this interpretation you could be held criminally liable if you use a pseudonym on Facebook or decorate a dating profile in violation of the website’s terms of use.

But website terms of use not only risked turning everyday internet behavior into a crime, they have also been an obstacle to modern civil rights testing – a preliminary investigation designed to track down online discrimination. Testing websites’ algorithms to see how they differ between users based on race, gender, age, or some other protection class status often requires violating the website’s terms of service. This type of screening test is a critical mechanism for detecting discriminatory practices in areas such as housing, credit, and employment.

The ACLU’s amicus briefing to the Supreme Court on behalf of civil rights researchers and journalists provided examples of how these restrictive terms could affect the civil rights review.

Prohibiting the use of incorrect or incomplete information on the website would prevent the creation of tester accounts or fictitious profiles that differ only along one attribute such as race or gender. Credential sharing is often required to collaborate with researchers. Bans on the use of automated means of collecting information, including scraping, would prevent efficient testing. Some terms even prohibit any attempt to understand the mechanisms or systems that underlie a service.

When researchers feared the threat of criminal or civil liability under the CFAA for violations of the terms of use, many understandably foregone investigations that they would otherwise have conducted. And because of this threat of liability, the ACLU filed a lawsuit on behalf of scientists and journalists in 2016 to challenge the constitutionality of the CFAA. Our case resulted in a district court ruling that the CFAA does not alone criminalize website Terms of Use violations. The Supreme Court has now confirmed this interpretation, paving the way for researchers and journalists to use common investigative techniques online without fear of the CFAA being held liable.

The important work of algorithmic reviewers, data journalists, and other researchers has already led to groundbreaking studies of how automated systems and platforms affect our lives. Limiting the scope of the CFAA is a welcome step in encouraging many more people to do the work necessary to enforce civil rights in the digital age.

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June 09, 2021 at 3:33 pm GMT

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