By Esha Bhandari, Deputy Director, National ACLU Speech, Privacy, and Technology Project

Earlier this week, the Supreme Court issued a decision interpreting the Computer Fraud and Abuse Act (CFAA), a federal anti-hacking law from the 1980s which has proven ill-suited to the modern internet. The Supreme Court’s opinion in Van Buren v. United States, narrowing the scope of the CFAA, will have positive consequences for online civil rights testing, research, and data journalism.

At first glance, the decision may not seem obviously related to civil rights enforcement. The case concerned a police officer who searched for information about a license plate in a law enforcement database in exchange for money. The officer was criminally charged with “exceed[ing] authorized access” under the CFAA because he violated his employer’s computer use policies. The Supreme Court held that the CFAA should not be read to criminalize violations of computer use policies alone, but instead prohibits behavior akin to breaking and entering — i.e. accessing parts of a computer that someone does not have authority to access at all.

This ruling is critically important for the twenty-first century civil rights investigations and data journalism that hold powerful platforms accountable. For many years now, the federal government and lower courts have interpreted the “exceeds authorized access” language in the CFAA to prohibit violations of website terms of service — those unilaterally imposed, self-serving conditions written by companies, and which most internet users never read. As the Supreme Court recognized, under this interpretation, you could be criminally liable for using a pseudonym on Facebook, or embellishing a dating profile in violation of website terms.

But websites’ terms of service not only risked turning everyday internet behavior into a crime, they were a barrier to modern civil rights testing — an investigative process meant to ferret out discrimination online. Testing websites’ algorithms to see how they distinguish among users on the basis of race, gender, age, or other protected class status often requires violating website terms of service. This kind of investigative testing is a critical mechanism for exposing discriminatory practices in housing, credit, and employment, among other areas.

The ACLU’s amicus brief to the Supreme Court on behalf of civil rights researchers and journalists provided examples of how these restrictive terms could interfere with civil rights testing.

Website prohibitions on the use of inaccurate or incomplete information would prevent the creation of tester accounts or fictitious profiles that vary only along one attribute like race or gender. Sharing log-in information is often necessary for researcher collaboration. Prohibitions on the use of any automated means to capture information, including scraping, would inhibit efficient testing. Some terms even prohibit any attempt to understand the mechanisms or systems underlying a service.

When researchers had to fear the threat of criminal or civil liability under the CFAA for terms of service violations, many understandably chose to forego investigations they might have otherwise undertaken. And because of this threat of liability, the ACLU filed a lawsuit in 2016 on behalf of academics and journalists to challenge the constitutionality of the CFAA. Our case resulted in a district court decision that the CFAA does not criminalize website terms of service violations alone. Now, the Supreme Court has validated that interpretation, clearing the way for researchers and journalists to use common investigative techniques online without the fear of CFAA liability.

The important work of algorithmic auditors, data journalists, and other researchers has already led to groundbreaking studies on the ways that automated systems and platforms are affecting our lives. Limiting the scope of the CFAA is a welcome step to encouraging many more people to undertake the necessary work of civil rights enforcement in the digital age.

George Floyd was a father, a brother, and a son. He loved spending time with his family and friends, who have said his smile would light up a room. He should still be alive today.

The murder of George Floyd by a Minneapolis police officer a year ago today sparked racial justice protests across our state and across the world. Thousands of Nevadans took to the streets to call for an end to racial profiling and police violence, and although many state leaders expressed solidarity with the Black Lives Matter movement — the Legislature even declared racism a public health crisis — they have tackled only modest reforms.

Nevada leaders should not be using the memory of George Floyd to promote meager reforms. Little has been accomplished to bring greater transparency and accountability to Nevada’s law enforcement establishment. To truly honor George Floyd, our state must get serious about racial justice and ending police violence.

With the close of the 2021 session just days away, the Nevada Legislature is considering Senate Bill 452, an incredibly dangerous bill that will give Nevada casinos the green light to engage in deadly and discriminatory stop-and-frisk encounters between police and civilians. Across the U.S., stop-and-frisk policies, masked by talking points about improving public safety, have led to racially biased enforcement, and for people of color who are already disproportionately impacted by law enforcement policies, the proposition is especially dangerous.

The only remotely redeemable legislation remaining is Assembly Bill 116, which would decriminalize minor traffic offenses and eliminate the practice of issuing arrest warrants to those who cannot afford to pay traffic fines and fees. But if our state leaders are serious about honoring the memory of George Floyd, the casino stop-and-frisk bill must not move forward.

“Legislative leaders promised to deliver meaningful racial justice policies, yet here we are, on the anniversary of George Floyd’s murder, fighting back a stop-and-frisk bill," ACLU of Nevada policy director Holly Welborn said. "It doesn’t honor George Floyd, and it’s completely tone deaf. SB452 will expose people of color to volatile and potentially deadly police encounters.”

The ACLU of Nevada's executive director, Athar Haseebullah, said casinos and police have routinely engaged in racial profiling against people of color, especially Black men and women.

"SB452 creates a new and deadly pipeline for increasing unwanted interactions between police and civilians at the discretion of individual casinos, and does so under a public safety justification, much the same way stop-and-frisk was justified in New York City," he said. "If we learned anything from the murder of George Floyd, it’s that reducing unwanted and unnecessary interactions between police and communities of color is critical to preserving life. To reverse course now and subject people of color to unwanted contact with police unknowingly is reckless. Even police think this bill is dangerous.” 

By Diamante Asberry, ACLU of Nevada Communications Intern

As the 2021 Nevada legislative session nears its end, many crucial prison reforms have been halted in their tracks.

Nevada’s criminal justice system desperately needs reform to lessen the amount of human rights violations it perpetuates, but legislators have failed to deliver that change. Unresolved fiscal notes have led to a standstill on multiple important pieces of legislation.

Here are some prison reform bills currently stuck in Finance Committee:

Senate Bill 187, sponsored by Senator Spearman, seeks to limit the number of days that an incarcerated person can be placed in solitary confinement.

Senate Bill 258, sponsored by Senator Scheible, seeks to update the Department of Corrections regulations to meet prevailing standards of care for incarcerated people who are transgender and gender nonconforming.

Senate Bill 365, sponsored by the Senate Committee on Judiciary, seeks to establish a pilot program for juvenile offenders who are convicted as adults to be housed in the custody of the Division of Child and Family Services until age 18, rather than being housed in adult correctional facilities.

Solitary confinement is inhumane, transgender prisoners deserve better protections, and minors do not belong in adult correctional facilities. The legislature has failed to address these important issues. Nevadans deserve better.

The legislature must act, and act fast, to ensure that the criminal justice system gets these necessary reforms. Let them know that time is running out.

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