On March 30, 2018, a D.C. federal district court denied a motion to dismiss an ACLU case filed against the government to challenge the constitutionality of the Computer Fraud and Abuse Act (CFAA), which makes it a federal crime to access a computer in a manner that “exceeds authorized access.” Sandvig v. Sessions, No. 1:16-cv-01368, Dkt. 24 (D.D.C. Mar. 30, 2018). The court held that the plaintiffs could proceed with their claim that the Free Speech and Free Press Clauses of the First Amendment, as applied, bar prosecution under the CFAA because it would restrict the plaintiffs’ ability to report on publicly available information, and even information available only following user registration on a site is generally available to the public.

The particular facts of the Sandvig case are unsurprisingly aimed at highlighting a potentially extreme application of the CFAA. The named plaintiffs are four professors and a media organization investigating whether automated decision-making and ad targeting technologies employed by various websites would result in potentially discriminatory practices against protected classes. For example, they want to analyze whether a real estate or employment website would discriminate against a user based on race. To perform the necessary analysis, they intend to use web scraping, bots, fake accounts (“sock puppets”) and other data collection techniques to conduct outcomes-based audit testing of websites and uncover such practices. These activities are typically prohibited by websites’ terms of service (TOS) and therefore unauthorized activity.Continue Reading D.C. federal court rules that web scraping does not violate the CFAA and may be protected by the First Amendment

Two recent cases serve as a reminder of the key role an online service provider’s (OSP) terms of service play in social media marketing. The courts in Darnaa, LLC v. Google, Inc., 2015 WL 7753406 (N.D. Cal. Dec. 2, 2015) and Lewis v. YouTube, LLC, 2015 BL 428281 (Cal. App. 6th Dist. Dec. 28, 2015), came to differing interpretations of YouTube’s Terms of Service, leading to disparate results for similar plaintiffs.

In Darnaa, YouTube moved plaintiff Darnaa’s music video “Cowgirl” to a new location and reset its view count on the grounds that Darnaa used automated tools in violation of YouTube’s Terms of Service to increase its view count. Darnaa sued, alleging YouTube’s actions were a breach of the covenant of good faith and fair dealing. The United States District Court for the Northern District of California found that it was unclear whether YouTube’s Terms of Service allowed it to unilaterally remove videos and their “view counts” whenever YouTube determined those Terms had been violated. Accordingly, the court ruled that the allegations in Darnaa’s complaint were sufficient to support a claim for a breach of the covenant of good faith and fair dealing. Though the court dismissed Darnaa’s claims on the procedural grounds that it was filed late, it permitted Darnaa to refile if she could plead a compelling justification for her late filing.
Continue Reading YouTube Rulings Emphasize the Importance of an OSP’s Terms of Service in Social Media Marketing