Reform the CFAA
The Computer Fraud and Abuse Act is badly in need of reform. It currently criminalizes violations of terms of services for websites, even when those terms of service are written in a narrow way and the violation is being done for the public good.
Specifically, the CFAA keeps researchers from understanding how algorithms work. As an example, Julia Angwin’s recent work on recidivism modeling, which I blogged about here, was likely a violation of the CFAA:
A more general case has been made for CFAA reform in this 2014 paper, Auditing Algorithms: Research Methods for Detecting Discrimination on Internet Platforms, written by Christian Sandvig, Kevin Hamilton, Karrie Karahalios, and Cedric Langbort.
They make the case that discrimination audits – wherein you send a bunch of black people and then white people to, say, try to rent an apartment from Donald Trump’s real estate company in 1972 – have clearly violated standard ethical guidelines (by wasting people’s time and not letting them in on the fact that they’re involved in a study), but since they represent a clear public good, such guidelines should have have been set aside.
Similarly, we are technically treating employers unethically when we have fake (but similar) resumes from whites and blacks sent to them to see who gets an interview, but the point we’ve set out to prove is important enough to warrant such behavior.
Their argument for CFAA reform is a direct expansion of the aforementioned examples:
Indeed, the movement of unjust face-to-face discrimination into computer algorithms appears to have the net effect of protecting the wicked. As we have pointed out, algorithmic discrimination may be much more opaque and hard to detect than earlier forms of discrimination, while at the same time one important mode of monitoring—the audit study—has been circumscribed. Employing the “traditional” design of an audit study but doing so via computer would now waste far fewer resources in order to find discrimination. In fact, it is difficult to imagine that a major internet platform would even register a large amount of auditing by researchers. Although the impact of this auditing might now be undetectable, the CFAA treats computer processor time as and a provider’s “authorization” as far more precious than the minutes researchers have stolen from honest landlords and employers over the last few decades. This appears to be fundamentally misguided.
As a consequence, we advocate for a reconceptualization of accountability on Internet platforms. Rather than regulating for transparency or misbehavior, we find this situation argues for “regulation toward auditability.” In our terms, this means both minor, practical suggestions as well as larger shifts in thinking. For example, it implies the reform of the CFAA to allow for auditing exceptions that are in the public interest. It implies revised scholarly association guidelines that subject corporate rules like the terms of service to the same cost-benefit analysis that the Belmont Report requires for the conduct of ethical research—this would acknowledge that there may be many instances where ethical researchers should disobey a platform provider’s stated wishes.