The fruits of web scrapingusing code to harvest data and information from websitesare all around us.
People build scrapers that can find every Applebees on the planet or collect congressional legislation and votes or track fancy watches for sale on fan websites. Businesses use scrapers to manage their online retail inventory and monitor competitors prices. Lots of well-known sites use scrapers to do things like track airline ticket prices and job listings. Google is essentially a giant, crawling web scraper.
Scrapers are also the tools of watchdogs and journalists, which is why The Markup filed an amicus brief in a case before the U.S. Supreme Court this week that threatens to make scraping illegal.
The case itselfVan Buren v. United Statesis not about scraping but rather a legal question regarding the prosecution of a Georgia police officer, Nathan Van Buren, who was bribed to look up confidential information in a law enforcement database. Van Buren was prosecuted under the Computer Fraud and Abuse Act (CFAA), which prohibits unauthorized access to a computer network such as computer hacking, where someone breaks into a system to steal information (or, as dramatized in the 1980s classic movie WarGames, potentially start World War III).
In Van Burens case, since he was allowed to access the database for work, the question is whether the court will broadly define his troubling activities as exceeding authorized access to extract data, which is what would make it a crime under the CFAA. And its that definition that could affect journalists.
Or, as Justice Neil Gorsuch put it during Mondays oral arguments, lead in the direction of perhaps making a federal criminal of us all.
Investigative journalists and other watchdogs often use scrapers to illuminate issues big and small, from tracking the influence of lobbyists in Peru by harvesting the digital visitor logs for government buildings to monitoring and collecting political ads on Facebook. In both of those instances, the pages and data scraped are publicly available on the internetno hacking necessarybut sites involved could easily change the fine print on their terms of service to label the aggregation of that information unauthorized. And the U.S. Supreme Court, depending on how it rules, could decide that violating those terms of service is a crime under the CFAA.
A statute that allows powerful forces like the government or wealthy corporate actors to unilaterally criminalize newsgathering activities by blocking these efforts through the terms of service for their websites would violate the First Amendment, The Markup wrote in our brief.
What sort of work is at risk? Heres a roundup of some recent journalism made possible by web scraping:

  • The COVID tracking project, from The Atlantic, collects and aggregates data from around the country on a daily basis, serving as a means of monitoring where testing is happening, where the pandemic is growing, and the racial disparities in whos contracting and dying from the virus.
  • This project, from Reveal, scraped extremist Facebook groups and compared their membership rolls to those of law enforcement groups on Facebookand found a lot of overlap.
  • The Markups recent investigation into Googles search results found that it consistently favors its own products, leaving some websites from which the web giant itself scrapes information struggling for visitors and, therefore, ad revenue. The U.S. Department of Justice cited the issue in an antitrust lawsuit against the company. 
  • In Copy, Paste, Legislate, USA Today found a pattern of cookie-cutter laws, pushed by special interest groups, circulating in legislatures around the country.

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