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ACLU Suit Attacks “Digital Redlining,” Fires a Shot Across the Bow of the Digital Economy

July 2016

The information gathering tactics espoused by the ACLU to analyze disparate impact discrimination are controversial because they can raise security and other concerns. For example, Plaintiffs propose to develop an automated web-browsing agent called a “bot.” “Each bot represents an individual person and is designed to interact with a website as a user might. . . . The bot will be instructed to behave as a number of different users; each of these profiles is a ‘sock puppet.’”  They also would like to “scrape” information from websites they visit.

Bots and scraping are complex and have trade-offs; industry has developed tools to manage their use. Indeed, Plaintiffs acknowledge that “[t]he use of bots is prohibited by many websites that the bot would visit in the course of building the racially-identifiable sock puppets. Scraping is prohibited by the terms of service of virtually all real estate websites.”

For good reason. The use of bots to create fake registrations threatens to distort companies’ data sets and business operations. As one commenter explains, databases that receive spam registration by bots can become “infused with fake data. This skews their data thereby decreasing the credibility of the database. Without accurate data available, these websites have difficulty attracting others to advertise on their site and won’t know for sure who their typical user is.” (R. Soni, LoginRadius Blog, How to Stop Spam Signups Dead in Their Tracks.)  Ironically, this would exacerbate the concern about imperfect data sets that troubles the Plaintiffs.

As for scraping, accessing and pulling information off websites have been subject to legal dispute for decades, as companies from eBay to Facebook protect their sites and content from competitors and others. There are serious and legitimate concerns about scraping, which has federal and state law implications. The ACLU’s request for an exception from the potential reach of the CFAA for some uses of these techniques could have serious and unpredictable practical consequences.

In bringing this suit, the ACLU is firing a shot across the bow of the digital economy.
Regardless of its ultimate merit, the novel claims preview a future of increased scrutiny for online operators, as skeptical third parties and government regulators seek transparency into big data, algorithms, and targeted advertising to ferret out so-called digital redlining. The lengths to which the ACLU goes in this suit to promote the investigation of digital redlining offers another signal that the interest in this is substantial and can only be expected to increase.

(An earlier version of this article, published by Bloomberg BNA’s Electronic Commerce & Law Report, can be found here.)