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Complex Litigation | MONDAY, MAY 22, 2017 | S5
reaffirmed, it, as well as the Second and Fourth Circuits, have interpreted the CFAA such that these activities are not a viola- tion.10 The First, Fifth, Eighth, and Eleventh Circuits, by contrast, extend potential liability to access that falls outside the “purposes for which access has been given.”11 While the Supreme Court recently considered applica- tion of the CFAA, it did not resolve this well- developed circuit split.12
As a result, while a web crawler that access- es websites without authorization or when
For now, businesses using these techniques should tread carefully lest they get caught in the CFAA’s web.
authorization is revoked violates the CFAA, the courts might reach different results for a company that crawls webpages that per- mit public access but prohibit web crawling or other activities in which the company is engaged.
Practical Considerations
The growing interest in web crawling among nancial rms and software compa- nies suggests that disputes will continue to arise as new technologies are developed. It is therefore important for those engaged in web crawling to understand that simply because content and information can be found on the Internet, does not mean that all means of accessing it are permissible. Moreover, courts have held that accessing a website after authorization has been revoked is not permissible.13
That being said, while a careful web crawler might want to review the terms of use of each website it intends to capture to con rm that web crawling is permitted, the Ninth Circuit has expressed concern that requiring such careful analysis is not practical.14 Thus, it has held that “violation of the terms of use of a website cannot itself constitute access without authorization.”15 The First Circuit, by contrast, has held that a “lack of authorization could be established by an explicit statement on the website restricting access,” such as terms of use, but even it has cautioned that “public policy might in turn limit certain
restrictions.”16 Similarly, courts have consid- ered whether use of technological measures, such as the Robots Exclusion Protocol (or robots.txt),17 might be used as a proxy for such restrictions.18
Conclusion
The ongoing litigations referenced in this article and those led in the future may pro- vide greater clarity on the bounds of legal web crawling. For now, businesses using these techniques should tread carefully lest they get caught in the CFAA’s web.
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1. Cf. Adrianne Jeffries, “How Google eats a business whole,” OUTLINE, April 17, 2017, https://theoutline.com/ post/1399/how-google-ate-celebritynetworth-com.
2. eBay v. Bidder’s Edge, 100 F. Supp. 2d 1058 (N.D. Cal. 2000); Am. Online v. LCGM, 46 F. Supp. 2d 444 (E.D. Va. 1998).
3. Associated Press v. Meltwater, 931 F. Supp. 2d 537 (2013); Ticketmaster v. Tickets.Com, No. 99 Civ. 7654, 2003 WL 21406289 (C.D. Cal. March 7, 2003).
4. Facebook v. Power Ventures, 844 F.3d 1058 (9th Cir. 2016).
5. United States v. Nosal, 844 F.3d 1024, 1049 (9th Cir. 2016) (Reinhardt, J., dissenting).
6. EF Cultural Travel BV v. Zefer, 318 F.3d 58 (1st Cir. 2003); CouponCabin v. Savings.com, No. 2:14 Civ. 39, 2017 WL 83337 (N.D. Ind. Jan. 10, 2017), 2016 WL 3181826 (N.D. Ind. June 8, 2016); Craigslist v. 3Taps, 942 F. Supp. 2d 962 (N.D. Cal. 2013); Snap-on Bus. Solutions v. O’Neil & As- socs., 708 F. Supp. 2d 669 (N.D. Ohio 2010).
7. Facebook v. Power Ventures, 844 F.3d 1058, 1067 (9th Cir. 2016). The private right of action under the CFAA also requires that the plaintiff “suffer[] damages or loss,” 18 U.S.C. §1030(g), but loss has been broadly de ned and may include the time that the website opera- tors spends “analyzing, investigating, and responding to [the web crawler’s] actions.” Facebook, 844 F.3d at 1066.
8. Facebook, 844 F.3d at 1067; United States v. Nosal, 844 F.3d 1024, 1036 (9th Cir. 2016); CouponCabin, 2017 WL 83337, at *3.
9. Facebook, 844 F.3d at 1068.
10. Id. (discussing United States v. Nosal, 676 F.3d 854 (9th Cir. 2012)); United States v. Valle, 807 F.3d 508 (2d Cir. 2015); WEC Carolina Energy Solutions v. Miller, 687 F.3d 199 (4th Cir. 2012).
11. United States v. John, 597 F.3d 263, 272 (5th Cir. 2010); see also United States v. Teague, 646 F.3d 1119 (8th Cir. 2011); United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010); EF Cultural Travel BV v. Explorica, 274 F.3d 577, 581-84 (1st Cir. 2001).
12. Musacchio v. United States, 136 S. Ct. 709 (2016). Two petitions for certiorari are currently pending be- fore the court. Power Ventures v. Facebook, No. 16-1105 (U.S.); Nosal v. United States, No. 16A840 (U.S.).
13. Facebook v. Grunin, 77 F. Supp. 3d 965 (N.D. Cal. 2015).
14. Nosal, 676 F.3d at 861.
15. Facebook, 844 F.3d at 1068.
16. EF Cultural Travel BV v. Zefer, 318 F.3d 58, 62 (1st
Cir. 2003).
17. Website operators use the Protocol to tell web
crawler programs what les or folders should not be visited.
18. QVC v. Resultly, 99 F. Supp. 3d 525, 540 (E.D. Pa. 2015); Healthcare Advocates v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627, 648 (E.D. Pa. 2007).
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