Academic journal article Federal Communications Law Journal

The Legality of Web Scraping: A Proposal

Academic journal article Federal Communications Law Journal

The Legality of Web Scraping: A Proposal

Article excerpt

                        TABLE OF CONTENTS  I.     INTRODUCTION                                                 400 II.    A BASIC UNDERSTANDING OF WEB SCRAPING AND THE CFAA           402        A. Web Scraping                                              402        B. The Computer Fraud and Abuse Act                          403 III.   WEB SCRAPING CASES                                           407 IV.    WEB SCRAPING SHOULD NOT BE UNDER CFAA JURISDICTION           408        A. Public Information Is Not Subject to Hacking              408        B. Web Scraping Allows Competition in the Marketplace        410        C. Proportionality, Vagueness, and Alternative Legal           Avenues                                                   412 V.     PROPOSAL: AMENDING THE COMPUTER FRAUD AND ABUSE ACT          414        A. Supporters                                                416           1. Scraping Businesses and Academics                      416           2. Legislators and Policy Groups                          417           3. Online and Technology Communities                      418        B. Opponents                                                 419           1. Scraped Businesses                                     419           2. Consumer Privacy Advocates                             420 VI.    CONCLUSION                                                    42 


When people think of hacking, many may think of people using computers to break into government databases or city records, like in a scene from a television show like Arrow. (1) The scene often involves hurried typing, furrowed brows, instant results, and often, very few punishments for hacking. Hacking, which may feel like a modern innovation due to continual improvements in technology, has been infused into pop culture for years. Certainly, newer television shows like Mr. Robot, Scorpion, and Blacklist show hacking in a variety of lights and taking place in a variety of circumstances. (2) Even in the 1997 movie Independence Day, a satellite technician saves the world by hacking into an alien mothership. (3) Prior to that, Jurassic Park showed a juvenile hacker taking on a UNIX system to reactivate security measures in a dinosaur park gone berserk. (4)

Others may think of hacking as they see it in the news. For instance, the infamous Ashley Madison hack revealed the identities and contact information of the site's users, who frequented the Ashley Madison website with the intention of having discreet extramarital affairs. (5) The Home Depot hack is another infamous incident, where the credit card numbers of almost fifty million customers were revealed. (6) Reports show that over five thousand breaches occurred in 2017, compromising almost eight billion records. (7)

This image of hackers sitting in a dark room, bent over computers, furiously typing complicated computer code is the image that many people tend to associate with the term hacking. (8) Personal information revealed, secrets unleashed, and access to information a person was never supposed to have are all ideas equally associated with hacking. (9) With so much personal data given over to companies and held in electronic formats, (10) people are right to be concerned with hackers and the damage they can do.

However, a lot of this hacking rides on the idea of secrecy. Whether it is information that is given to a company with the condition of confidentiality or unknown information relating to the computer system on an alien spaceship, hacking relies on the idea that the hacker isn't supposed to know or be able to get the information that they are taking. (11) Thus, the idea of hacking publicly available information does not fit into either of these categories. Companies promise to do their best to keep consumer information safe and private. (12) However, if certain information is public, then by definition, all people should have access, and none of it should be a secret. …

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