Position Statement on Online Algorithmic Bias and Federal Anti-Hacking Law

Submitted by Baldeep Singh Gill and Ritansha Lakshmi, Research Interns on Online Algorithmic Bias and Federal Anti-Hacking Law.

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Introduction

• British Data Scientist and Mathematician, Clive Humby coined the phrase “Data is the new oil” and affirmed that data, if left unrefined, cannot be used effectively. Humans may deplete the oil reservoirs one day, but that is not the case with data. We believe that data is an indispensable resource for the digital economy and the Fourth Industrial Revolution. To process data and get the desired results, algorithms are used which result in smart automated decisions. The increased use of algorithms has raised profound concern that such automated choices will produce discriminatory results and algorithmic bias.

Computer Fraud and Abuse Act (CFAA)

• Enacted in 1986, the Computer Fraud and Abuse Act (CFAA) is the United States’ federal legislation for cybersecurity and cyber fraud. CFAA has been amended several times and is now believed to be completely unruly. Exceedingly broad and ambiguous provisions of the CFAA are deeply troubling. Under the Act, several activities can be identified as a crime, leading to overcriminalisation. Internet activist Aaron Swartz’s death explains the atrocious impact of federal law. 

Sandvig v. Barr

• In a recent development on CFAA, the American Civil Liberties Union (ACLU) on behalf of computer science academicians challenged the constitutionality of 18 U.S.C. §1030 of the CFAA and the former being a restriction on the Right to Speech (First Amendment of United States Constitution).

• The District Court of Columbia astoundingly ruled that academic research into online algorithms to uncover whether the former results in racial, gender, age or other discrimination doesn’t breach America’s anti-hacking law, CFAA. The federal court further approved the proposed research plans and concluded that such research does not attract felony charges under CFAA.

• ACLU’s Speech, Privacy, and Technology Project staff attorney, Esha Bhandari accurately enunciate that, “This decision helps ensure companies can be held accountable for civil rights violations in the digital era”.

• We believe Investigative journalism is a public service and the same should not fear the federal prosecution threat under CFAA. Investigating online websites’ algorithms would rule out the discriminatory and rights-violating data practices of such websites. The future of AI requires independent research and ruling of this decision allow people to learn about new forms of discrimination and ensure that company to be held accountable and civil rights protection remain effective in the digital era.

• Algorithms can overcome the harmful effects of cognitive biases and put the employers in an unbiased position towards the potential employees. Equivalent academic studies will provide constructive insights for developing non-biased algorithms to avoid racial or other discriminations.

To understand this development, please refer to: https://www.aclu.org/press-releases/federal-court-rules-big-data-discrimination-studies-do-not-violate-federal-anti

https://www.aclu.org/sandvig-v-barr-memorandum-opinion