Disclaimer: This article does not, by any means, constitute legal advice. Views expressed are purely opinion and are not legally binding. Consult with your local legal counsel for advice specific to your project, country or application.
In our previous article, Is the platform Scraping Legal?, we discussed two influential cases of legal action taken against web scrapers: the platform v HiQ and Facebook v Power Ventures, which both involved tech giants confronting small companies in the court of law for attempts at scraping data from their website, claiming violations of the Computer Fraud and Abuse Act (CFAA), a law designed to to prevent hackers from accessing a computer system without “authorisation”.
The outcome, however, was starkly different; the district court found Power liable under all claims and was ordered to pay almost $3 million in damages, whereas HiQ was granted a preliminary injunction that allowed the analytics company to continue to collect the platform’s public data.
For those unaware, web scraping is the act of extracting desired information and data from websites in order to make data mining more efficient and systematic. In the case of small companies like Power Ventures and HiQ, web scraping is seen as integral for their survival; their business model revolves around taking data and processing them for their consumers’ needs. But some website owners find web scraping ultimately harmful to their Internet presence. It could be because scrapers are infringing on copyrights and trademarks, or because they slow down the servers, hence negatively impacting their revenue streams.
Whatever the reason, it is inevitable that this issue will be brought to court. The two cases mentioned highlight the legal repercussions of bulk scraping and how it is seen in the eyes of the law. But the platform seems to be unhappy with the outcome, so they have decided to escalate this matter further.
What has happened since then?
In March 2020, the platform filed a petition for a writ of certiorari to Supreme Courts to challenge 9th circuit decision which says that HiQ scraping the platform member profiles without the platform’s permission did not make any violation against federal hacking laws.
the platform put forth several arguments as to why the Court should grant its petition. the platform argues that there is a circuit split regarding the interpretation of the CFAA’s “unauthorised access” provision with respect to scraping. Although the Ninth Circuit has stated that using automated means to scrape a public site is in no violation of the CFAA, the First Circuit may rule that acts of scraping can be seen as a CFAA violation if they are in direct breach of the website’s terms of use against such acts. the platform makes it a point that the Internet recognises no borders and an inconsistency of how the CFAA is applied is unjustified.