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Sandvig v. Barr

United States District Court for the District of Columbia

March 27, 2020, Decided; March 27, 2020, Filed

Civil Action No. 16-1368 (JDB)

Opinion

MEMORANDUM OPINION

Plaintiffs are academic researchers who intend to test whether employment websites discriminate based on race and gender. In order to do so, they plan to provide false information to target websites, in violation of these websites' terms of service. Plaintiffs bring a pre-enforcement challenge, alleging that the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030, as applied [*2]  to their intended conduct of violating websites' terms of service, chills their First Amendment right to free speech. Without reaching this constitutional question, the Court concludes that the CFAA does not criminalize mere terms-of-service violations on consumer websites and, thus, that plaintiffs' proposed research plans are not criminal under the CFAA. The Court will therefore deny the parties' cross-motions for summary judgment and dismiss the case as moot.

Background

A. Research Plans

Christopher Wilson and Alan Mislove are professors of computer science at Northeastern University. Decl. of Pl. Christopher "Christo" Wilson ("First Wilson Decl.") [ECF No. 48-1] ¶ 1; Decl. of Pl. Alan Mislove ("First Mislove Decl.") [ECF No. 48-2] ¶ 1. For their research, Wilson and Mislove "intend to access or visit certain online hiring websites for the purposes of conducting academic research regarding potential online discrimination." Pls.' Statement of Undisputed Material Facts ("SMF") [ECF No. 47-2] ¶ 61. Their plans include "audit testing" to examine whether various hiring websites' proprietary algorithms discriminate against online users "based on characteristics, such as race or gender, that constitute [*3]  a protected class status under civil rights laws." Id. ¶¶ 64, 66. To conduct these audit tests, plaintiffs "will create profiles for fictitious job seekers, post fictitious job opportunities, and compare their fictitious users' rankings in a list of candidates for the fictitious jobs" in order to see "whether [the] ranking is influenced by race, gender, age, or other attributes." Id. ¶ 71.

Wilson and Mislove state that they will take steps to minimize the impact of their research both on the targeted websites' servers and on other users of those websites. Id. at ¶¶ 75-78. For instance, they will make it apparent to real job seekers and employers that their postings are fake by "stat[ing] in any fictitious job posting, or in any fictitious job seeker profile, that the job or the job seeker is not real." Id. at ¶¶ 75-78. Both researchers also intend to "comply with the payment requirement" of certain employment websites. Decl. of Pl. Christopher "Christo" Wilson ("Second Wilson Decl.") [ECF No. 65-1] ¶ 5; Decl. of Pl. Alan Mislove ("Second Mislove Decl.") [ECF No. 65-2] ¶ 5. But Wilson and Mislove acknowledge that their research plan will violate the target websites' terms of service [*4]  prohibiting the provision of false information and/or creating fake accounts. SMF ¶ 86.

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2020 U.S. Dist. LEXIS 53631 *

CHRISTIAN W. SANDVIG, et al., Plaintiffs, v. WILLIAM P. BARR,1 in his official capacity as Attorney General of the United States, Defendant.

Prior History: Sandvig v. Sessions, 315 F. Supp. 3d 1, 2018 U.S. Dist. LEXIS 54339 (D.D.C., Mar. 30, 2018)

CORE TERMS

websites, plaintiffs', authorization, violations, term of service, permission, plans, exceeds, credible threat, terms-of-service, accesses, intend, proscribed, quotation, user, authentication, marks, criminal liability, summary judgment, prosecutions, courts, narrow interpretation, argues, concrete plan, criminalizing, interpreting, fictitious, internet, policies, terms