UPDATE: On December 23, 2021, the parties reached a settlement, as Southwest filed an unopposed motion for entry of final judgment and a permanent injunction containing the same restrictions as the temporary injunction issued in September. Under the proposed permanent injunction, Kiwi would be barred from scraping flight and fare information from Southwest’s site, publishing any Southwest flight or fare information on kiwi’s site or app (or selling any Southwest flights), or otherwise using Southwest’s site for any commercial purpose or in a manner that violates Southwest’s site terms.

UPDATE: On November 1, 2021, the parties filed a Joint Notice of Settlement indicating that they have reached a settlement agreement in principle.  The terms of the settlement were not disclosed.

UPDATE: On October 28, 2021, the defendant Kiwi.com, Inc. filed a notice of appeal to the Fifth Circuit seeking review of the district court’s ruling granting Southwest Airlines Co.’s motion for a preliminary injunction.

On September 30, 2021, a Texas district court granted Southwest Airline Co.’s (“Southwest”) request for a preliminary injunction against online travel site Kiwi.com, Inc. (“Kiwi”), barring Kiwi from, among other things, scraping fare data from Southwest’s website and committing other acts that violate Southwest’s terms. (Southwest Airlines Co. v. Kiwi.com, Inc., No. 21-00098 (N.D. Tex. Sept. 30, 2021)). Southwest is no stranger in seeking and, in most cases, obtaining injunctive relief against businesses that have harvested its fare data without authorization – ranging as far back as the 2000s (See e.g., Southwest Airlines Co. v. BoardFirstLLC, No. 06-0891 (N.D. Tex. Sept. 12, 2007) (a case cited in the current court opinion)), and as recently as two years ago, when we wrote about a 2019 settlement Southwest entered into with an online entity that scraped Southwest’s site and had offered a fare notification service, all contrary to Southwest’s terms.

In this case, the Texas court found that Southwest had established a likelihood of success on the merits of its breach of contract claim. Rejecting Kiwi’s arguments that it did not assent to Southwest’s terms, the court found that Kiwi had knowledge of and assented to the terms in multiple ways, including by agreeing to the terms when purchasing tickets on Southwest’s site. In all, the court found the existence of a valid contract and Kiwi’s likely breach of the terms, which prohibit scraping Southwest’s flight data and selling Southwest flights without authorization. The court also found that Southwest made a sufficient showing that Kiwi’s scraping and unauthorized sale of tickets, if not barred, would result in irreparable harm. In ultimately granting Southwest’s request for a preliminary injunction, the Texas court also found that Southwest also demonstrated the threatened injury if the injunction is denied outweighed any harm to Kiwi that will result if the injunction is granted and that the injunction would be in the public interest.

What made this result particularly notable is that the preliminary injunction is based on the likelihood of success on the merits of Southwest’s breach of contract claim and Kiwi’s alleged violation of Southwest’s site terms, as opposed to other recent scraping disputes which have centered around claims of unauthorized access under the federal Computer Fraud and Abuse Act (CFAA).

In a closely-watched appeal, the Supreme Court, in a 6-3 decision, reversed an Eleventh Circuit decision and adopted a narrow interpretation of “exceeds unauthorized access” under the Computer Fraud and Abuse Act (CFAA), ruling that an individual “exceeds authorized access” when he or she accesses a computer with authorization but then obtains information located in particular areas of the computer – such as files, folders, or databases – that are off limits to him or her. (Van Buren v. United States, No. 19-783, 593 U.S. ___ (June 3, 2021)). The majority equated “exceed[ing] authorized access” with the act of “entering a part of a system to which a computer user lacks access privileges,” rejecting the Government’s contention that a person who is authorized to access information from a protected computer for certain purposes violates CFAA Section 1030(a)(2) by accessing the computer with an improper purpose or motive. Put simply, the court’s view suggests a “gates-up-or-down” approach where the CFAA prohibits accessing data one is not authorized to access.

Although the case involved a criminal conviction under the CFAA, Van Buren gave the Supreme Court the opportunity to resolve a long-standing circuit split and heavily-litigated issue that arose in both criminal and civil cases under the CFAA’s “unauthorized access” provision. This provision of the CFAA is routinely pled in cases against former employees that have accessed proprietary data in their final days of employment for an improper purpose (e.g., for use in their new job or competing venture). It is also a common claim in disputes involving unwanted web scraping. On the latter point, the Court’s narrow interpretation of the “exceeds authorized access” provision would appear to be right in line with the narrow interpretations of the CFAA enunciated by the Ninth Circuit in its blockbuster hiQ opinion, which held that that when a computer network generally permits public access to its data, a user’s accessing that publicly available data will not constitute access “without authorization” under the CFAA and in its Power Ventures precedent, which held that, in the context of unwanted data scraping, a violation of the terms of use of a website, without more, cannot be the basis for civil liability under the CFAA.

On January 14, 2021, Southwest Airlines Co. (“Southwest”) filed a complaint in a Texas district court against an online travel site, Kiwi.com, Inc. (“Kiwi”), alleging, among other things, that Kiwi’s scraping of fare information from Southwest’s website constituted a breach of contract and a violation of the Computer Fraud and Abuse Act (CFAA). (Southwest Airlines Co. v. Kiwi.com, Inc., No. 21-00098 (N.D. Tex. filed Jan. 14, 2021)). Southwest is no stranger in seeking and, in most cases, obtaining injunctive relief against businesses that have harvested its fare data without authorization – ranging as far back as the 2000s (See e.g., Southwest Airlines Co. v. BoardFirst, LLC, No. 06-0891 (N.D. Tex. Sept. 12, 2007), and as recently as two years ago, when we wrote about a 2019 settlement Southwest entered into with an online entity that scraped Southwest’s site and had offered a fare notification service, all contrary to Southwest’s terms.

According to the current complaint, Kiwi operates an online travel agency and engaged in the unauthorized scraping of Southwest flight and pricing data and the selling of Southwest tickets (along with allegedly charging unauthorized service fees), all in violation of the Southwest site terms. Upon learning of Kiwi’s scraping activities, Southwest sent multiple cease and desist letters informing Kiwi of its breach of the Southwest terms. It demanded that Kiwi cease scraping fare data, publishing fares on Kiwi’s site and using Southwest’s “Heart” logo in conjunction with the selling of tickets. Kiwi responded and sought to form a business relationship, an overture that Southwest refused.  According to Southwest, when discussions failed to yield a resolution, Kiwi allegedly continued its prior activities, prompting the filing of the suit.

On November 30, 2020, the Supreme Court held oral argument in its first case interpreting the “unauthorized access” provision of the Computer Fraud and Abuse Act (CFAA). The CFAA in part prohibits knowingly accessing a computer “without authorization” or “exceeding authorized access” to a computer and thereby obtaining information and causing a “loss” under the statute. The case concerns an appeal of an Eleventh Circuit decision affirming the conviction of a police officer for violating the CFAA for accessing a police license plate database he was authorized to use but used instead for non-law enforcement purposes. (See U.S. v. Van Buren, 940 F. 3d 1192 (11th Cir. 2019), pet. for cert. granted Van Buren v. U.S., No. 19-783 (Apr. 20, 2020)). The issue presented is: “Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.”

The defendant Van Buren argued that he is innocent because he accessed only databases that he was authorized to use, even though he did so for an inappropriate reason.  He contended that the CFAA was being interpreted too broadly and that such a precedent could subject individuals to criminal liability merely for violating corporate computer use policies. During oral argument, Van Buren’s counsel suggested that such a wide interpretation of the CFAA was turning the statute into a “sweeping Internet police mandate” and that the Court shouldn’t construe a statute “simply on the assumption the government will use it responsibly.”  In rebuttal, the Government countered that Van Buren’s misuse of access for personal gain was the type of “serious breaches of trust by insiders” that statutory language is designed to cover.

In continuing its efforts to enforce its terms and policies against developers that engage in unauthorized scraping of user data, this week Facebook brought suit against two marketing analytics firms, BrandTotal Ltd (“BrandTotal”) and Unimania, Inc. (“Unimania”) (collectively, the “Defendants”) (Facebook, Inc. v. BrandTotal Ltd., No. 20Civ04246

In what could be prove to be an important decision within the context of scraping of “public” data, in a recent case the Eleventh Circuit reversed a lower court’s dismissal of trade secret claims relating to the scraping of insurance quotes. (Compulife Software, Inc. v. Newman, No. 18-12004 (11th Cir. May 20, 2020)). The appellate court agreed with the lower court that while Compulife’s insurance quote database was a trade secret, manually accessing life insurance quote information from the plaintiff’s publicly web-accessible database would generally not constitute the improper acquisition of trade secret information.  However, the court disagreed with the lower court in finding that the use of automated techniques to scrape large portions of the database could constitute “improper means” under state trade secret law.  In reversing the lower court’s dismissal of the trade secret claims, the appeals court stressed that “the simple fact that the quotes taken were publicly available does not automatically resolve the question in the defendants’ favor.”   Even though there was no definitive ruling in the case – as the appeals court remanded the case for further proceedings – it is certainly one to watch, as there are very few cases where trade secrets claims are plead following instances of data scraping.