Computer Fraud Law Used To Shield Online Discrimination

The Computer Fraud and Abuse Act is being used to stifle investigations of online discrimination, according to an article in the New Yorker. By prohibiting “unauthorized access” to a protected computer, the law prohibits what has become an important tool used by civil rights organizations as well as government agencies to ferret out discrimination. It’s an unabashedly deceptive technique (but one that has been accepted by the Supreme Court, the writer says) referred to as pair testing. The technique might involve, for example, sending out similar resumes that differ only in that one is under a woman’s name, the other a man’s. Another version of the technique involves in-person rental applications by paired candidates who differ only in their racial identity. Under the CFAA, if a target computer owner can make the case that an on-line application is “unauthorized access,” then the applicants could be subject to civil and possibly criminal liability. There’s been pushback, including a lawsuit filed by the ACLU against Attorney General Loretta Lynch.