The American Civil Liberties Union (ACLU) recently filed an action in the US District Court for the District of Columbia challenging the constitutionality of the Computer Fraud and Abuse Act (CFAA). The lawsuit, Sandvig v. Lynch, was brought by the ACLU on behalf of a group of academic researchers and a media organization against US Attorney General Loretta Lynch.
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As explained by the ACLU, “The problem is that those are the very methods that are necessary to test for discrimination on the internet, and the academics and journalists who want to use those methods for socially valuable research should not have to risk prosecution for using them.” The ACLU draws comparisons to audit testing that has been used in an offline context to uncover racial discrimination in housing and employment and to enforce civil rights laws. The ACLU claims that the criminal actions permitted under the CFAA are overly broad and in violation of the First Amendment and the Due Process Clause of the Fifth Amendment.
Given the ubiquity of TOU and the potentially far-reaching implications related to the suit, we will continue to follow its progress.