Federal Court Says Scraping Court Records Is Most Likely Protected By The First Amendment:
Automated web scraping can be problematic. Just look at Clearview, which has leveraged open access to public websites to create a facial recognition program it now sells to government agencies. But web scraping can also be quite useful for people who don't have the power or funding government agencies and their private contractors have access to.
The problem is the Computer Fraud and Abuse Act (CFAA). The act was written to give the government a way to go after malicious hackers. But instead of being used to prosecute malicious hackers, the government (and private companies allowed to file CFAA lawsuits) has gone after security researchers, academics, public interest groups, and anyone else who accesses systems in ways their creators haven't anticipated.
Fortunately, things have been changing in recent years. In May of last year, the DOJ changed its prosecution policies, stating that it would not go after researchers and others who engaged in "good faith" efforts to notify others of data breaches or otherwise provide useful services to internet users. Web scraping wasn't specifically addressed in this policy change, but the alteration suggested the DOJ was no longer willing to waste resources punishing people for being useful.
Web scraping is more than a CFAA issue. It's also a constitutional issue. None other than Clearview claimed it had a First Amendment right to gather pictures, data, and other info from websites with its automated scraping.
Clearview may have a point. A few courts have found scraping of publicly available data to be something protected by the First Amendment, rather than a violation of the CFAA.
In an important victory, a federal judge in South Carolina ruled that a case to lift the categorical ban on automated data collection of online court records – known as "scraping" – can move forward. The case claims the ban violates the First Amendment.
The decision came in NAACP v. Kohn, a lawsuit filed by the American Civil Liberties Union, ACLU of South Carolina, and the NAACP on behalf of the South Carolina State Conference of the NAACP. The lawsuit asserts that the Court Administration's blanket ban on scraping the Public Index – the state's repository of court filings – violates the First Amendment by restricting access to, and use of, public information, and prohibiting recording public information in ways that enable subsequent speech and advocacy.
The bottom line is this: automated access to government records is almost certainly protected by the First Amendment. What will be argued going forward is how much the government can restrict this access without violating the Constitution. There's not a lot on the record at the moment, but this early ruling seems to suggest this court will err on the side of unrestricted access, rather than give its blessing to unfettered fettering of the presumption of open access that guides citizens' interactions with public records.
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https://arstechnica.com/tech-policy/2024/03/charges-against-journalist-tim-burke-are-a-hack-job/
Caitlin Vogus is the deputy director of advocacy at Freedom of the Press Foundation and a First Amendment lawyer. Jennifer Stisa Granick is the surveillance and cybersecurity counsel with the ACLU's Speech, Privacy, and Technology Project. The opinions in this piece do not necessarily reflect the views of Ars Technica.
Imagine a journalist finds a folder on a park bench, opens it, and sees a telephone number inside. She dials the number. A famous rapper answers and spews a racist rant. If no one gave her permission to open the folder and the rapper's telephone number was unlisted, should the reporter go to jail for publishing what she heard?
If that sounds ridiculous, it's because it is. And yet, add in a computer and the Internet, and that's basically what a newly unsealed federal indictment accuses Florida journalist Tim Burke of doing when he found and disseminated outtakes of Tucker Carlson's Fox News interview with Ye, the artist formerly known as Kanye West, going on the first of many antisemitic diatribes.
[...]
According to Burke, the video of Carlson's interview with Ye was streamed via a publicly available, unencrypted URL that anyone could access by typing the address into your browser. Those URLs were not listed in any search engine, but Burke says that a source pointed him to a website on the Internet Archive where a radio station had posted "demo credentials" that gave access to a page where the URLs were listed.The credentials were for a webpage created by LiveU, a company that provides video streaming services to broadcasters. Using the demo username and password, Burke logged into the website, and, Burke's lawyer claims, the list of URLs for video streams automatically downloaded to his computer.
And that, the government says, is a crime. It charges Burke with violating the CFAA's prohibition on intentionally accessing a computer "without authorization" because he accessed the LiveU website and URLs without having been authorized by Fox or LiveU. In other words, because Burke didn't ask Fox or LiveU for permission to use the demo account or view the URLs, the indictment alleges, he acted without authorization.
(Score: 5, Insightful) by Anonymous Coward on Saturday January 28 2023, @10:40AM (1 child)
R.I.P. Aaron Swartz , who would be scraping everything in the afterlife if that was possible
https://en.wikipedia.org/wiki/Aaron_swartz [wikipedia.org]
(Score: 2) by Freeman on Monday January 30 2023, @03:23PM
I mean, I get it, but that's not what got him into trouble. He was copying articles wholesale from database vendors via the connections that his school (MIT?) provided. I.E. Elsevier, ProQuest, Wall Street Journal, etc. (Just examples, I have no idea, if they were involved at all.) Elsevier is uncaring enough to have done so, though. The entire premise of court documents not being public record or having to pay for access to them in any way. Has always sat wrong with me. This should be a publicly funded effort and should be readily available to all citizens, irrespective of their economic status.
Joshua 1:9 "Be strong and of a good courage; be not afraid, neither be thou dismayed: for the Lord thy God is with thee"
(Score: 5, Interesting) by Brymouse on Saturday January 28 2023, @01:10PM (12 children)
Publishing court records (a public document) still opens you up to being sued in several states.
I'm currently spending quite a bit of money to defend myself from a lawsuit in a state I've not been to over a public figure suing me for posting his court records. Many states don't recognize protections under the 1st amendment for non-news papers or broadcasters (eg blogs) either.
(Score: 4, Interesting) by MrGuy on Saturday January 28 2023, @01:47PM (11 children)
Interesting. On what theory are they suing?
The First Amendment is, as I understand it, a defense for something that might otherwise be illlegal. It doesn’t make any conduct illegal, it just protects some conduct as explicity legal.
So, for them to sue you, there has to be some theory of you having damaged the public figure or the court in some way. What is it? Do they claim copyright protection no. The court records? That seems problematic (though the most likely) Does the public figure claim defamation? That would only
Hold water if the claim was false. Something else?
(Score: 5, Informative) by mhajicek on Saturday January 28 2023, @02:09PM (6 children)
In the US, you don't have to be right to sue; you can sue over literally anything, requiring your opponent to spend time and money to defend themselves.
The spacelike surfaces of time foliations can have a cusp at the surface of discontinuity. - P. Hajicek
(Score: 3, Insightful) by MrGuy on Saturday January 28 2023, @02:20PM (4 children)
Sure. Which is why many states have anti-SLAPP laws for precisely this sort of situation. Even absent that, at some point the plaintiff will have to allege some theory of why they were damaged to survive getting tossed by a judge. It can be largely BS but it has to be there. So I’m wondering what they’re claiming is the injury.
(Score: 1) by Brymouse on Saturday January 28 2023, @06:26PM (3 children)
The plaintiff can just choose to sue you in a state without such laws. You don't have a right to take it into federal court until you lose in that state.
(Score: 4, Informative) by MrGuy on Saturday January 28 2023, @06:41PM (2 children)
This is doubly false.
A court must have jurisdiction over the matter at issue, or you’ll get thrown out at the outset. If I live in (say) New York, and I allegedly defame someone in New York, they can’t sue me in Alabama because they like the law there better. The court must have subject matter and personal jurisdiction.
And, should there be an issue of federal law involved, or a jurisdictional reason why the case should be in federal court (for example, the parties are from multiple states) then the defendant has the right to “remove” the case to federal court and be heard there instead. You absolutely do NOT have to lose in state court first.
(Score: 1) by Brymouse on Saturday January 28 2023, @10:35PM
You still need to hire an attorney and fight it in that state to get it dismissed.
Even if it's a federal law that's at play you generally cannot go into federal court from the outset in a civil matter.
(Score: 1, Insightful) by Anonymous Coward on Sunday January 29 2023, @06:10PM
I think I've seen lawsuits where it took over a year to resolve the jurisdiction issue, which means tens of thousands of dollars in legal fees racked up.
(Score: 2) by Freeman on Monday January 30 2023, @03:49PM
There should be anti-SLAPP laws in every state and they should have teeth. To prevent monopolies and/or just anyone with more money than you from suing without cause. Currently the experience varies by state and probably doesn't have enough teeth where they have any.
Joshua 1:9 "Be strong and of a good courage; be not afraid, neither be thou dismayed: for the Lord thy God is with thee"
(Score: 2, Interesting) by khallow on Saturday January 28 2023, @04:46PM (2 children)
My take is that someone who does these sort of lawsuits probably has done them before. They might even have deliberately seeded their original court documents with private information in order to expedite these frivolous lawsuits.
(Score: 2) by EvilSS on Sunday January 29 2023, @07:40PM (1 child)
(Score: 1) by khallow on Sunday January 29 2023, @07:54PM
(Score: 3, Interesting) by Brymouse on Saturday January 28 2023, @06:41PM
As to the theory, you're welcome to read the complaint here [w9cr.net].
He's a fairly well known seller of radios [qrz.com] in the enthusiast community. Basically he had me confused with another person, went off on me via IM, and I looked into him [w9cr.net]. I found out he wasn't a "former US Federal Agent" as claimed on his cv/resume, but rather plead guilty in to impersonating a Federal Agent [w9cr.net] in federal court. Needless to say this is rather frowned upon in the hobbyist community (being an interloper with unauthorized transmissions on police radio systems is a big no-no), and it made him look less than professional.
As this is ongoing litigation I have no comment other than the above.
While these are public documents, North Carolina has no public access to court records other than by physically going to the court and paying for copies. If you want telnet access to their search server, you have to pay a monthly fee of ~500 Dollars and then a per search/page displayed on the terminal. It's basically pacer, but without access to the documents, just paying for searches.
(Score: 2, Insightful) by Runaway1956 on Saturday January 28 2023, @07:03PM (2 children)
There is no such thing as erring on the side of freedom. If you read the constitution, the amendments, and discussions & publications of the founding fathers, you will find that everything is free, unless it is locked down. Specifically, if a court should seal records in a case for a good reason, it's locked down, and you can't get it. If it isn't locked down, it is exactly what the phrase suggests: public information.
Anyone can do whatever the hell they want to do with public information. The tech companies are making billions, based upon that fact. Public information is freely available to all.
End of story.
(Score: 2) by Joe Desertrat on Sunday January 29 2023, @01:41AM (1 child)
Perhaps it should be, if we lived in an ideal world. In the real world, unless we have the rare event where a judge is actually aware of this and tosses the case before time and money have to be spent by the defendant, these lawsuits can cause very real harm to defendants without a lot of resources to fight them.
(Score: 2) by Freeman on Monday January 30 2023, @04:07PM
Your state laws should be designed to fight the good fight. Sometimes that has been bought out by the corporations. Maybe, you should elect someone else to ruin your state in a different way. In the event that you're British, tough luck, you don't get all that much say.
Joshua 1:9 "Be strong and of a good courage; be not afraid, neither be thou dismayed: for the Lord thy God is with thee"