By Sam Thielman
On January 29, at the Tow Center for Digital Journalism, Tow and the Knight First Amendment Institute hosted the presentation of findings from fellow and Center for Investigative Reporting general counsel D. Victoria Baranetsky’s fall 2018 report, Data Journalism and the Law, available at the Columbia Journalism Review and Academic Commons.
“What we have seen in the past two years is not just information flooding, but information burnout,” Baranetsky observed. Too much is entering the public discourse and the news, too quickly, she said: “More data has been created in the previous two years than in the entire history of the human race.”
Baranetsky’s report deals with the intricacies of data law as it applies to newsgathering, from the use of the Freedom of Information Act in reportage, to the Computer Fraud and Abuse Act, to the governmental misuse of laws like the Espionage Act to punish whistleblowers. The report also covers some of the novel ways that private companies have tried to use those laws to declare some publicly available information off-limits, in one notable instance by pursuing public data scrapers in the courts.
Alongside her findings, Baranetsky hosted a conversation with BuzzFeed News reporter and “FOIA terrorist” Jason Leopold and a panel discussion with Knight Senior Staff Attorney Alex Abdo, ACLU staff attorney Esha Bhandari, and investigative journalist and engineer Surya Mattu.
Leopold was enthusiastic about the opportunities presented by FOIA but said legal scholars and, in fact, lawyers themselves had become crucial to its use in reporting. “The successes we’ve had [at Buzzfeed] are largely a result of litigating,” he told Baranetsky. “Newsrooms are spooked by it because they’re not investing money in the litigation, but for me, it’s just been crucial in terms of being able to write stories about Guantanamo, the CIA’s torture program, even little stories about how two CIA contractors hacked the vending machine and were under surveillance for six months.”
But efforts to circumvent the law on the part of government bodies that would rather not see their dirty laundry aired publicly are numerous and hard to contest. “We have a case where the state of Texas passed a law requiring head injuries [in sports] to be logged,” Baranetsky recalled. “We requested the database from the University of Texas and they said, ‘Sorry, the database itself is a trade secret.’ It’s essentially an excel spreadsheet.”
The panel discussion touched on problems of accountability for artificial intelligence, a topic Tow has studied closely over the past year. Mattu observed that a tool called COMPAS, used by the justice system in Florida, “was being used to determine someone’s likelihood to commit a crime again.” When the reporting team Mattu worked on at ProPublica studied the tool, they found significant flaws. “We found that African-Americans are twice as likely to get a high score and not commit a crime again, and Caucasians are twice as likely to get a low score and commit a crime again.”
The problem could have been bias in the data set or bias in the algorithm itself, but the ProPublica report made the point that machine learning can only be trusted to do what you tell it to do — it’s much less useful if the user wants it to break down complex human interactions into mathematical certainties.