TESTING THE LIMITS OF THE FIRST AMENDMENT: HOW ONLINE CIVIL RIGHTS TESTING IS PROTECTED SPEECH ACTIVITY

njdiver

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TESTING THE LIMITS OF THE FIRST AMENDMENT: HOW ONLINE CIVIL RIGHTS TESTING IS PROTECTED SPEECH ACTIVITY

This Note assesses First Amendment freedom of speech claims with regard to online civil rights testing. Transactions that have conventionally occurred in person are now more often completed online, and providers transacting online have been increasingly using algorithms that synthesize users’ data. While these algorithms are helpful tools, they may also be yielding discriminatory results, whether intentionally or unintentionally.

In order to test whether such algorithms are discriminating, civil rights testers and researchers have developed various online auditing methods. Two methods in particular, the “sock puppet” audit and the “scraping” audit, have been considered especially viable in detecting discrimination. In a sock puppet audit, a tester acts as different bona fide patrons of various demographic backgrounds to test whether an algorithm returns disparate results. In a “scraping” audit, the tester creates bots that act as different individuals and then issue repeated queries to an algorithm and record the various responses received.

While these methods are promising, they currently violate many online providers’ terms of service. Further, due to judicial interpretations of the Computer Fraud and Abuse Act (CFAA) as proscribing violations of a website’s terms of service, engaging in these testing methods could give rise to criminal liability.

This Note argues that, in light of precedent related to protected conduct, false speech, investigative journalism, and the tradition of testers in civil rights enforcement, the First Amendment’s protections can and should extend to civil rights testing. Therefore, the CFAA, insofar as it is applied to civil rights testers engaging in online testing activity, infringes upon the First Amendment by criminalizing constitutionally protected conduct.

 

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