Researchers have been trying to make sure that discrimination doesn't happen on websites, with an emphasis on sites that present job opportunities and real estate sales. They say that the problem is that the algorithms in use could accidentally take things like gender or race into account when displaying search results. If so, this could be viewed as illegal discrimination. After all, if a person is not shown certain jobs because he's black or because she's a woman, that is entirely unfair and could violate prohibitions against discrimination in hiring.
However, the researchers are running into some limitations due to an old hacking law, and they're now suing the government. They claim that the law is unconstitutional.
One of the problems they have with the law is that it's fairly open-ended, making it so that activities that violate the terms of service (TOS) on a site can be prosecuted as hacking-related activities. This could include, among other things, making fake profiles.
The researchers want to be able to create these fake profiles, though, because they can then cater them to their specific situations to test the site. For example, they could see if it will return the same results for a 25-year-old black woman as it would for a 40-year-old white man. Researchers need this flexibility, but they're afraid of prosecution -- especially if they find that certain sites do discriminate.
The researchers claim that the First Amendment gives them the right to make fake profiles, as it's a "speech activity". They also say that the Fifth Amendment and the right to due process are violated because companies have the ability to alter their TOS without telling them, meaning activities that didn't previously violate the TOS could suddenly become illegal and lead to criminal charges under the Computer Fraud and Abuse Act.
The government has been notoriously bad at making computer-related laws, as the technology is rather new and laws often can't keep up with reality. Those who are facing charges for computer-related violations need to know what rights they have, and they should carefully watch this case to see if those rights are going to change.
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