Jan 17, 201912:47 PMLegal Login
with Mindi Giftos
What you need to know about the legal implications of data scraping
(page 2 of 2)
An important distinction under the CFAA that is emerging from the case law is whether or not the targeted data is publicly available or, instead, private and protected — for example, presented behind a paywall, requiring user credentials, and so on. Development in several recent and ongoing cases suggest that courts — at least lower federal courts — are amenable to a constrained interpretation of the CFAA as its applied to publicly available information.
Intuitively, making data publicly available on the internet, at the least, suggests that the owner or operator of the website is willing to grant some form of an implied permission to all web users so that they can access that information. Nonetheless, some website owners have sought to use the CFAA to block unwanted data scraping by arguing that access to publicly available data can be “unauthorized” once the owner or operator revokes any implied permission or authorization through a cease and desist letter or the like. Interestingly, there is currently a split regarding whether or not a website owner can revoke implied authorization to access to publicly available information, and a case on appeal hopes to answer this question.
Given the unsettled nature of this area of the CFAA, it is possible that certain forms of data scraping related to publicly available information could trigger criminal and civil penalties under the CFAA, especially if such activities catch the ire of the website owner or operator. As the courts seek to flesh out this area of the law, we will be watching closely for any developments.
Kris Kappel is a partner at Husch Blackwell LLP and is the co-vice chair of its intellectual property practice group. Liam Reilly is an associate in the firm’s intellectual property group. Both are based in the firm’s Kansas City office.
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