Researchers May Challenge the Constitutionality of the CFAA “Access” Provision as Applied to Web Scraping
Such Scraping “Plausibly Falls within the Ambit of the First Amendment”
In a preliminary decision, a district court held that the plaintiffs have standing and allowed their as-applied constitutional challenge to the CFAA to go forward with regard to the activity of creating fictitious accounts on web services for research purposes. The decision contains vivid language on the nature of the public internet as well as how the plaintiffs’ automated collection and use of publicly available web data would not violate the CFAA’s “access” provision even if a website’s terms of service prohibits such automated access (at least with respect to the facts of this case, which involves academic or journalistic research as opposed to commercial or competitive activities).
The Plaintiffs’ Action for Declaratory Relief
The CFAA was enacted in 1984 to enhance the government’s ability to prosecute computer crimes and target hackers. The CFAA, 18 U.S.C. §1030, prohibits a number of different computer crimes, the majority of which involve accessing computers without authorization or in excess of authorization, and then taking specified forbidden actions, ranging from obtaining information to damaging a computer or computer data. The statute also provides for a civil right of action for violations, and such a claim is regularly pled by website owners against unwanted data scrapers and by employers against departing employees who access proprietary company data for improper purposes.
The plaintiffs in this action directly challenge the so-called “Access Provision,” 18 U.S.C. §1030(a)(2), which provides for criminal penalties: “[w]hoever . . . intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer . . . shall be punished as provided in subsection (c) of this section.” [The statute does not define the phrase “without authorization”].
In looking at the application of the CFAA’s Access Provision to the plaintiffs’ activities, the court noted that the law is uncertain regarding whether violating a website’s terms of service “exceeds authorized access” under the statute. Importantly, with regard to web scraping, the court declined the invitation to carve out an exception from the CFAA for harmless terms of service violations, suggesting that such a construction is untenable. After a deep examination into how the statutory terms “access without authorization” and “exceeds authorized access” have been construed by various courts, the court espoused a narrow interpretation of the Access Provision and noted the risks of enforcement: “By incorporating ToS that purport to prohibit the purposes for which one accesses a website or the uses to which one can put information obtained there, the CFAA threatens to burden a great deal of expressive activity, even on publicly accessible websites—which brings the First Amendment into play.”
Ultimately, the court noted that much of the plaintiffs’ proposed activities fall outside the CFAA’s reach and that the CFAA “prohibits far less than the parties claim (or fear) it does.”
“Scraping or otherwise recording data from a site that is accessible to the public is merely a particular use of information that plaintiffs are entitled to see. The same goes for speaking about, or publishing documents using, publicly available data on the targeted websites. [….] Employing a bot to crawl a website or apply for jobs may run afoul of a website’s ToS, but it does not constitute an access violation when the human who creates the bot is otherwise allowed to read and interact with that site. [citation omitted]”
Thus, out of all the plaintiff’s proposed activities, the court held that only the researchers’ plans to create fictitious user accounts on employment sites would violate the CFAA because such activities do not occur on portions of websites that anyone can view, but on pages that are limited to “those who meet the owners’ chosen authentication requirements and targeted to the particular preferences of the user.” At this stage, the court allowed the plaintiffs’ as-applied constitutional challenge to go forward based on such potential sock puppeting activities, because, absent any evidence that the speech would be used to gain a material advantage, such false speech retains First Amendment protection and “rendering it criminal does not appear to advance the government’s proffered interests.”
Implications for Data Scraping
Some additional considerations:
The plaintiffs’ non-commercial activities for the purpose of academic research are much different than data scraping performed by an upstart competitor seeking to collect website content for data aggregation or a completely new service, or by an investor scraping available web data to gain knowledge on market conditions. Presumably, the court would have reached a different result if the plaintiffs were not professors or big data researchers test auditing websites as opposed to data scrapers seeking commercial gain or otherwise engaging in what a website owner might deem “free riding.” Secondly, the plaintiffs’ activities were also not so extensive as to affect the various websites’ server loads or provision of service to real customers, so there was no threat of irreparable harm to the websites’ operations in this case from the plaintiff’s “unauthorized access.”
The Sandvig decision is focused on the criminal CFAA issue and does not address the availability of civil causes of action for bypassing robots.txt, CAPTCHAs or other technical measures (e.g., common law trespass or the DMCA anti-circumvention provisions, if the content protected by a technological measure was copyrighted).
The decision also does not address civil liability for breach of contract based upon a violations of a site’s terms, though certain dicta in the opinion suggest that the court believes publicly available web data presents different issues under the CFAA than data behind a paywall or authentication scheme. (“The First Amendment does not give someone the right to breach a paywall on a news website any more than it gives someone the right to steal a newspaper. But simply placing contractual conditions on accounts that anyone can create, as social media and many other sites do, does not remove a website from the First Amendment protections of the public Internet”).
Entities engaging in web scraping will certainly be buoyed by other dicta in the opinion that characterizes the scraping of public website data for research purposes as implicating First Amendment interests or merely “a technological advantage that makes information collection easier” (the latter characterization brings to mind a recent Ninth Circuit decision interpreting automated scraping activities with respect to the California state computer access law). While courts have considered scraping activities under various legal causes of action over the past decade, rarely has a court made such sweeping pronouncements about the utility and expressive nature of web scraping and the openness of the public web. Moreover, the court ruled that certain of the plaintiff’s methods of access (e.g., scraping publicly accessible web data, publishing academic content using such data, or employing a bot to interact with a website when such activity is allowed for a human user) fell outside the Access Provision of the CFAA. Still, the court did not consider the same activities in the civil context, or if such interpretation would change if a website operator has expressly revoked a user’s access to a public website in a cease and desist letter, an issue that the Ninth Circuit is poised to resolve.