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upstart writes:

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.

Original Submission