Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

sociallyaware-abajournalweb100-1

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

rubin_aaron_blog_150x150.png

rubin_aaron_common_640x280.jpg

rubin_aaron_heroretina_2700x1160.jpg

rubin_aaron_mobileretina_750x1040.jpg

rubin_aaron_social_600x600.jpg

Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

gallick_lawrence_blog_150x150.png

gallick_lawrence_common_640x280.jpg

gallick_lawrence_heroretina_2700x1160.jpg

gallick_lawrence_mobileretina_750x1040.jpg

gallick_lawrence_social_600x600.jpg

Of Counsel

Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

ramirez_anthony_blog_150x150.png

ramirez_anthony_common_640x280.jpg

ramirez_anthony_heroretina_2700x1160.jpg

ramirez_anthony_mobileretina_750x1040.jpg

ramirez_anthony_social_600x600.jpg

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

Welcome to Socially Aware

240920-socially-aware-header.jpg

Welcome to Socially Aware

240920-socially-aware-header

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

News and Announcements

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides a data-driven look at the Federal Circuit.

Federal Circuitry

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Mofo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

Government Contracts Insights

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

MoFo’s Socially Aware blog provides timely updates and analysis of the many complex and cutting-edge legal and business issues arising out of social media.

Socially Aware

  Linkedin

MoFo LinkedIN

Socially Aware Blog - RSS

Stay Connected

Never miss a post from Socially Aware. Enter your email below to stay up-to-date.

Subscribe

The Law and Business of Social Media

Morrison Foerster - Footer

“Web scraping” or “web harvesting”—the practice of extracting large amounts of data from publicly available websites using automated “bots” or “spiders”—account

Blogs -  Home Button

Home

Blog - Topics

Web Scraping

Advertising

Antitrust

Arbitration

Artificial Intelligence

Asia

Autonomous Vehicles

Bankruptcy

Big Data

Blockchain

Class Actions

Cloud Computing

Compliance

Contracts

COPPA

Copyright

Crowdsourcing

Cyberbullying

Cybersecurity

Data Security

Defamation

Digital Content

Disappearing Content

Discovery

DMCA

E-Commerce

E-Discovery

E-Personation

Electronic Contracts

Employment Law

Endorsement Guides

Ephemeral Messaging

Ethics

European Union

Event

Fair Use

FDA Regulations

Financial Institutions

First Amendment

Fraud

Free Speech

GDPR

Hacking

Influencer Marketing

Infographic

Internet of Things

Investment Management Law

JOBS Act

Labor Law

Litigation

Live streaming

Marketing

Mobile

Online Contracts

Online Endorsements

Online Promotions

Online Reviews

Patent

Privacy

Product Liability

Protected Speech

Right of Publicity

Right To Be Forgotten

Section 230 Safe Harbor

Securities Law

Social Media Policy

Statistics

Status Updates

Stored Communications Act

Supreme Court

Terms of Use

Trademark

UK High Court

User-Generated Content

Wearable Computers

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

Data for the Taking: Using the Computer Fraud and Abuse Act to Combat Web Scraping

Data for the Taking: Using the Computer Fraud and Abuse Act to Combat Web Scraping | Socially Aware

“Web scraping” or “web harvesting”—the practice of extracting large amounts of data from publicly available websites using automated “bots” or “spiders”—accounted for 18% of site visitors and 23% of all Internet traffic in 2013. Websites targeted by scrapers may incur damages resulting from, among other things, increased bandwidth usage, network crashes, the need to employ anti-spam and filtering technology, user complaints, reputational damage and costs of mitigation that may be incurred when scrapers spam users, or worse, steal their personal data.Though sometimes difficult to combat, scraping is quite easy to perform. A simple online search will return a large number of scraping programs, both <a href="http://scraping.pro/software-for-web-scraping/">proprietary</a> and <a href="http://scrapy.org/">open source</a>, as well as <a href="http://blog.hartleybrody.com/web-scraping/">D.I.Y. tutorials</a>. Of course, scraping can be beneficial in some cases. Companies with limited resources may use scraping to access large amounts of data, spurring innovation and allowing such companies to identify and fill areas of consumer demand. For example, <a href="https://www.mint.com/">Mint.com</a> reportedly used screen scraping to aggregate information from bank websites, which allowed users to track their spending and finances. Unfortunately, not all scrapers use their powers for good. In one case on which we <a href="https://www.sociallyawareblog.com/2014/04/10/jerked-around-did-the-ftcs-jerk-com-complaint-just-turn-api-terms-into-federal-law/">previously reported</a>, the operators of the website <a href="http://jerk.com/">Jerk.com</a> allegedly scraped personal information from Facebook to create profiles labeling people “Jerk” or “not a Jerk.” According to the <a href="http://www.ftc.gov/news-events/press-releases/2014/04/ftc-charges-operators-jerkcom-website-deceiving-consumers">Federal Trade Commission</a> (FTC), over 73 million victims, including children, were falsely told they could revise their profiles by paying $30 to the website.Website operators have asserted various claims against scrapers, including <a href="http://www.internetlibrary.com/pdf/Ticketmaster-Tickets.com-SJ-Motion.pdf">copyright claims</a>, <a href="http://law.justia.com/cases/federal/district-courts/FSupp2/100/1058/2478126/">trespass to chattels claims</a> and <a href="http://law.justia.com/cases/federal/appellate-courts/F3/356/393/539823/">contract claims</a> based on allegations that scrapers violated the websites’ terms of use. This article, however, focuses on another tool that website operators have used to combat scraping: the federal <a href="http://www.law.cornell.edu/uscode/text/18/1030">Computer Fraud and Abuse Act</a> (CFAA).The CFAA imposes liability on “whoever…<a href="http://www.law.cornell.edu/uscode/text/18/1030">intentionally accesses a computer without authorization or exceeds authorized access</a>, and thereby obtains…information from any protected computer…” While the CFAA is primarily a criminal statute, it also provides for a civil remedy where a plaintiff suffers more than $5,000 in aggregate losses during any one-year period arising from a violation of the CFAA. For large website operators asserting CFAA claims against scrapers, the $5000 damages requirement has not proven to be a difficult obstacle to overcome. For example, in CollegeSource, Inc. v. AcademyOne, Inc., the District Court for the Eastern District of Pennsylvania found that the plaintiff’s cost of initiating an internal investigation of the defendant’s website, hiring a computer expert to analyze the scope of the defendant’s actions and implementing increased security measures were well in excess of $5,000. Similarly, in <a href="https://www.eff.org/files/filenode/facebook_power_order.pdf">Facebook, Inc. v. Power Ventures, Inc.</a>, the District Court for the Northern District of California found that the plaintiff’s expenditures made in response to defendant’s specific acts, which included three to four days of engineering time, $75,000 in outside counsel costs and the costs of responding to a minimum of 60,000 instances of spamming by defendant, were well in excess of the statutory threshold. The more difficult question is whether scraping violates the CFAA at all.The CFAA was originally intended as an anti-hacking statute and its application to scraping—which, after all, usually involves accessing publicly-available data on a publicly-available website—is not always a foregone conclusion. Does a scraper access a website “without authorization” or “exceed authorized access” when it harvests publicly available data on a publicly available website? Plaintiffs often argue that scrapers act without authorization because the websites’ online terms of use prohibit scraping and/or prohibit the scrapers’ use of the data that they harvest. As discussed below, such claims have met with success in some cases, but courts have been less willing to find a CFAA violation in other scraping cases.In <a href="https://h2o.law.harvard.edu/collages/41836">Cvent, Inc. v. Eventbrite</a>, Cvent sued Eventbrite for scraping Cvent’s website to obtain venue information and using the information in Eventbrite’s “Venue Directory.” Cvent claimed that this was a violation of the CFAA because Cvent’s terms of use specifically stated that such activities were unauthorized. The District Court for the Eastern District of Virginia held that Eventbrite’s actions did not constitute “hacking” in violation of the CFAA because the information was publicly available; Cvent’s website did not require any login, password or other individualized grant of access; and Cvent’s terms of use were difficult to locate. Therefore, the court granted Eventbrite’s motion to dismiss, concluding that Eventbrite was authorized to access the information on Cvent’s website, and that the mere allegation that Eventbrite used the information inappropriately was not grounds for relief under the CFAA.Power Ventures, the defendant in Facebook, Inc. v. Power Ventures, Inc., operated a social media account integration site. As part of a promotion to gain new members, Power Ventures provided users with a list of their Facebook friends, which Power Ventures obtained through scraping the Facebook website, and asked users to select friends to invite to use the Power Ventures site. Facebook notified Power Ventures that its access was unauthorized and blocked Power Ventures’ IP addresses. However, Power Ventures’ scraping technology was designed to circumvent such technological measures and the scraping continued. The District Court for the Northern District of California held that Power Ventures’ accessing of Facebook was without authorization and violated the CFAA and accordingly, granted summary judgment to Facebook on the CFAA claim.CollegeSource, the plaintiff in CollegeSource, Inc. v. AcademyOne, Inc., maintained an archive of college course catalogs in PDF format and a hyperlink service called CataLink, both of which it made available to paying subscribers. AcademyOne, a CollegeSource subscriber, hired a third party to download college catalogs directly from college websites in order to compile a course description database. However, the third party instead copied some of the PDF documents from CollegeSource through CataLink. AcademyOne removed the CollegeSource documents from its system after receiving a cease and desist letter from CollegeSource, but CollegeSource nonetheless proceeded to bring a number of claims against AcademyOne, including CFAA claims based on the argument that AcademyOne accessed the documents without authorization and exceeded authorized access. The court held, however, that AcademyOne did not access the documents without authorization because those documents were available to the general public. CollegeSource’s argument that AcademyOne exceeded authorized access was based on AcademyOne’s alleged violation of CollegeSource’s terms of use. The Court acknowledged that accessing a website in violation of the applicable terms of use has been held to support a CFAA claim in some cases, but was unconvinced by CollegeSource’s argument here because CollegeSource’s subscription agreement did not cover CataLink. Accordingly, the court granted summary judgment to AcademyOne on the CFAA claims. In <a href="http://www.volokh.com/wp-content/uploads/2013/08/Order-Denying-Renewed-Motion-to-Dismiss.pdf">Craigslist Inc. v. 3Taps Inc.</a>, 3Taps allegedly scraped Craigslist’s website and republished Craigslist ads on its own site, craiggers.com.  In response, Craigslist sent 3Taps a cease and desist letter revoking 3Taps’s authorization to access Craigslist’s website for any purpose, and reconfigured the website to block 3Taps.  When 3Taps allegedly continued its scraping activities by using different IP addresses and proxy servers to conceal its identity, Craigslist brought suit under the CFAA.  Even though Craigslist’s website was publicly available, the District Court for the Northern District of California declined to grant 3Taps’ motion to dismiss the CFAA claim.  According to the court, while Craigslist may have granted the world permission to access its website, it retained the power to revoke that permission on a case-by-case basis, a power it exercised when it sent the cease and desist letter and blocked 3Taps’s IP addresses. Therefore, 3Taps’ continued access was without authorization. The court also rejected 3Taps’ attempt to invoke the Ninth Circuit’s decision in United States v. Nosal.  In Nosal, the Ninth Circuit had held that an employee’s use of information in violation of an employer’s policies did not constitute a CFAA violation where the employee’s initial access to the employer’s computer system was authorized.  The court in 3Tap’s concluded, however, that the “calculus is different where a user is altogether banned from accessing a website,” as was the case with 3Taps.Fidlar, the plaintiff in <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1565&context=historical">Fidlar Technologies v. LPS Real Estate Data Solutions, Inc.</a>, provides its Laredo program to governmental agencies, such as county clerks’ offices, which use Laredo to make public records available for viewing over the Internet. Laredo prevents users from downloading or electronically capturing the documents they view. Users who want a copy of a public record must pay the county a print fee. LPS, a real estate analytics company, contracted with many counties to access their public records using Laredo, but used a scraping program to capture documents electronically without paying any fees. Fidlar sued LPS for violating section 1030(a)(5)(A) of the CFAA, which imposes liability on anyone who “…knowingly causes the transmission of a program, code, or command, and as a result…<a href="http://www.law.cornell.edu/uscode/text/18/1030">intentionally causes damage without authorization, to a protected computer</a>.” The District Court for the Central District of Illinois denied LPS’s motion to dismiss the CFAA claim, holding that Fidlar’s complaint properly alleged that LPS undertook intentional actions that, among other elements of damage, compromised the integrity of Laredo.In light of the cases discussed above, it seems that plaintiffs are likely to have more success asserting CFAA claims against scrapers where they clearly and unambiguously revoke authorization to access their websites and take affirmative steps to block the scrapers, as in 3Taps and Power Ventures. In contrast, when the scraper ceases scraping after access is revoked and takes remedial action, as in CollegeSource, courts may be less willing to impose CFAA liability. As seen in Cvent, a mere terms of use violation, particularly where the scraper may not have actual notice of the terms of use, may not support a CFAA claim. Whether the scraper is simply using software to collect publicly available information more efficiently or to do something else—such as to avoid paying fees for the information, as seen in Fidlar—may also be relevant. In any event, in an era when data is expensive to collect, valuable to have and cheap to take, the CFAA, when properly used, remains a viable tool to combat scrapers.