When it comes to web-scraping legal issues, people want easy answers. They want to know if web scraping is legal or it isn’t.
Unfortunately, the truth is rarely as simple as that.
The reason is two-fold: First, context always matters in web scraping. The nuances of when, where, what, and how you’re scraping matter in assessing legality. That requires a case-by-case analysis.
And second, there is considerable variation in different jurisdictions in terms of how the laws governing web scraping are interpreted.
Most people don’t think about state-by-state legal differences when they think about web-scraping laws. And very few people appreciate just how much variation there is among the legal doctrines that apply to web scraping.
When it comes to lawsuits and web scraping, where they happen matters as much as anything in determining the outcome.
Introducing the “Circuit Split”
A circuit split happens when two or more of the thirteen U.S. Courts of Appeals (the “circuits”) issue conflicting rulings on the same federal legal question, so the rule is applied one way in some parts of the country and a different way in others. Because the Constitution makes those appellate decisions binding only within each circuit’s geographic region, a circuit split means similarly situated people can face different legal outcomes simply depending on where their case is heard.
These disagreements matter because the Supreme Court views resolving them as a prime reason to take a case: when national law is fractured, the Court often grants certiorari to restore uniformity. But until the Supreme Court (or Congress) steps in, a circuit split remains, leaving businesses, individuals, and lower courts to navigate a patchwork of rules across the country.
There is a certain gravity associated with circuit splits that means that they are likely to be resolved over time. When there are consequential circuit splits, the Supreme Court tends to address those differences eventually. Granted, it can take years or even decades for this to happen, but it usually happens. Notably, the Supreme Court resolved a major circuit split with the CFAA in Van Buren, when it decided that one “exceeds authorized access”under 18 U.S.C. § 1030(a)(2) only when they enter parts of a computer—such as files, folders, or databases—that their authorization does not permit them to access. Accessing data one is otherwise entitled to see, but for an improper or prohibited purpose, does not violate that clause.
But that circuit split had been percolating for more than a decade when the Supreme Court finally decided to deal with it, illustrating how slow the process for judicial alignment can be. Not only that, but the Supreme Court left many important questions still undecided in that opinion.
State-by-State Differences
Further complicating matters, different states have different laws, and except for when they impermissibly conflict with federal laws, there is no legal process in the United States to resolve their differences. There is nothing wrong or unusual about having a law in California or Texas that is inconsistent with a law in Florida or New York. And so it is often the case that conduct that is permissible in one state is illegal in another. In the boundary-less and frictionless world of the internet, that makes it challenging for people trying to run a business.
And depending on the state, the laws that might govern web-scraping, such as state computer trespassing laws, are often under-litigated. And so in addition to known differences between laws, there are unknowable and unpredictable variations in states where the key issues associated with web scraping simply have not been litigated before.
Not a Gray Area
It is a common and lazy assumption to categorize web-scraping as a “gray area” of the law. But private litigants have been litigating issues associated with web-scraping for more than a quarter of a century now. There is plenty of legal precedent with web scraping; it’s just hard to sum it up in a tidy and simple way. It’s not that web scraping is a gray area of the law. It’s that there are dozens of laws implicated by web scraping in the United States alone. And those laws are often interpreted differently by courts. And so you have to get deep into the weeds to speak intelligently about the laws of web scraping.
You have to analyze web scraping with a detailed and granular approach across a wide range of laws, or you will get it wrong. And most people don’t know the right questions to ask to get the right answers, and they aren’t willing to get into the level detail to get it right.
An Introduction to the State-by-State Differences
The goal of this series of blog posts will be to introduce some of the more noteworthy ways in which there are state-by-state differences or “circuit splits” that impact web scraping. I’m going to highlight ten legal regimes where there are differences among courts that impact litigation and web-scraping disputes. To be clear, this is not even a comprehensive list of state-by-state differences, but it should serve as an introduction to nuance with web scraping and the law.
I plan to analyze ten different legal issues that relate to web-scraping that have material differences depending on US jurisdictions.
The ten issues are:
- Copyright preemption of state-law claims
- Variations in legal interpretations of the DMCA
- State-law interpretations of constructive knowledge for online terms of use
- Interpretations of what constitutes “technological harm” under the CFAA
- Interpretations of “without authorization” under the CFAA
- Differences in how misappropriation is treated in the context of web scraping
- Whether public data can be “trade secrets”
- Differences in how trespass to chattels is analyzed with web scraping
- State law computer-trespass claims
- Privacy and data broker laws
Stay tuned.