Can I get prosecuted for not reading the unreadable?
The creative deployment of anti-hacking statutes to effectively criminalize a common industry practice (Google uses bots and spiders to index sites for its search engine) raises serious policy and constitutional questions. The Electronic Frontier Foundation (EFF), a leading public-interest digital rights boutique and participant in several of the cases, has argued that such an interpretation gives site owners the ability to unilaterally classify activity they don’t like (including competitive activity that may be in the public interest) as criminal, as well as denying site users constitutionally required fair notice of what constitutes an offense (since no one surfing the web can be expected to read 12 pages of tortured legalese and understand what is illegal).
These issues came to a head in Facebook, Inc. v. Power Ventures, Inc., No. C-08-05780 (N.D. Cal. July 20, 2010), an important marker in the evolving law of data scraping. The facts are relatively simple. Power, through its website at Power.com, provided social media users with tools to enable them to aggregate their data (their own profile and activity data) across several social media sites. When users accessed Facebook through Power.com, the site deployed bots to access their data, violating the explicit terms of Facebook’s user agreement. Facebook warned Power that it considered such access a violation of California Penal Code §502. Facebook then used IP-blocking measures to prevent further pings from the Power IP address. However, Power circumvented these measures so that Facebook could not recognize the source of the pings. A lawsuit inevitably followed, into which the EFF injected itself by filing a brief in support of Power.
Scrape, but don’t get caught?
To scrape or not to scrape? In the wake of Power Ventures, that is certainly the question.