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UPDATE:  On February 22, 2018, the district court granted 3taps’s motion to relate its action to the ongoing hiQ v. LinkedIn litigation. This motion was based upon a local Northern District of California rule that holds that cases should be related when the actions concern substantially the same parties, transaction or event, and there would be an “unduly burdensome duplication of labor…or conflicting results” if the cases were heard before different judges.  As a result, the 3taps case, over the opposition of LinkedIn, was reassigned to Judge Edward Chen, who also presided over the lower court proceedings in the hiQ v. LinkedIn litigation.

In the latest development in the legal controversy over scraping, 3taps, Inc. (“3taps”), a data aggregator and “exchange platform” for developers, filed suit against LinkedIn seeking a declaratory judgment that 3taps would not be in violation of the Computer Fraud and Abuse Act (CFAA) if it accesses and collects publicly-available data from LinkedIn’s website. (3Taps Inc. v. LinkedIn Corp., No. 18-00855 (C.D. Cal. filed Feb. 8, 2018)).  The basis of 3Taps’s complaint is last year’s hotly-debated California district court ruling (hiQ Labs, Inc. v. LinkedIn, Corp., 2017 WL 3473663 (N.D. Cal. Aug. 14, 2017)), where the court granted a preliminary injunction compelling LinkedIn to disable any technical measures it had employed to block a data analytics company from scraping the publicly available data on LinkedIn’s website. The hiQ ruling essentially limited the applicability of the CFAA as a tool against the scraping of publicly-available website data.  [For an analysis of the hiQ lower court decision, please read the Client Alert on our website].

Facebook recently announced that it would make changes to its news feed to prioritize content that users share and discuss and material from “reputable publishers.”  These changes are part of what Mark Zuckerberg says is a refocusing of Facebook from “helping [users] find relevant content to helping [users] have…

UPDATE: In June 2021, the Ninth Circuit affirmed the dismissal of claims in the Gonzalez case, mostly on § 230 grounds. Subsequently, on October 3, 2022, the Supreme Court granted certiorari in Gonzalez (see our follow-up post).

UPDATE:  In a subsequent opinion, the court dismissed the plaintiffs’ third amended complaint. (See Gonzalez v. Google, Inc., 335 F.Supp.3d 1156 (N.D. Cal. 2018)).

Following the reasoning of several past decisions, a California district court dismissed claims against Google under the Anti-Terrorism Act (ATA), 18 U.S.C. § 2333, for allegedly providing “material support” to ISIS by allowing terrorists to use YouTube  (temporarily, before known accounts are terminated) as a tool to facilitate recruitment and commit terrorism.  (Gonzalez v. Google, Inc., 2017 WL 4773366 (N.D. Cal. Oct. 23, 2017)). The court rejected the plaintiffs’ arguments that Google provided the terrorists with material support by allowing them to sign up for accounts (or regenerate shuttered accounts) and then allegedly serve targeted ads alongside such posted videos.  It ruled that even careful pleadings cannot change the fact that, in substance, plaintiffs’ attempt to hold Google liable as a publisher of the terrorist’s detestable content was barred by Section 230 of the Communications Decency Act (“CDA Section 230” or “CDA”).   

This past week, the Supreme Court denied the petitions for certiorari in two noteworthy Ninth Circuit decisions that had interpreted the scope of liability under the federal Computer Fraud and Abuse Act (CFAA) in the context of wrongful access of company networks by employees and in instances involving unwanted data…

In a new development in an important scraping dispute, LinkedIn appealed the lower court’s decision to grant a preliminary injunction compelling LinkedIn to disable any technical measures it had employed to block the defendant’s data scraping activities.  LinkedIn’s brief was filed on October 3, 2017.  In it, LinkedIn asserts that…

A Green Light for Screen Scraping? Proceed With Caution…

UPDATE:  As expected, LinkedIn appealed the lower court’s decision to grant a preliminary injunction compelling LinkedIn to disable any technical measures it had employed to block the defendant’s data scraping activities.  LinkedIn’s brief was filed on October 3, 2017.  In…

UPDATE: In late October 2016, the parties notified the court that they were in discussions to settle the matter and would jointly stipulate to a dismissal of the action without prejudice.  On November 2nd, the court dismissed the action.

Title V of the Telecommunications Act of 1996, also known as the “Communications Decency Act of 1996” or “CDA” was signed into law in February 1996.  The goal of the CDA was to control the exposure of minors to indecent material, but the law’s passage provoked legal challenges and pertinent sections of the Act were subsequently struck down by the Supreme Court as unconstitutional limitations on free speech. Yet, one section of the CDA, §230, remained intact and has proven to encourage the growth of web-based, interactive services.

Over the last few years, website operators, search engines and other interactive services have enjoyed a relative stable period of CDA immunity under Section 230 of the Communications Decency Act (CDA) from liability associated with user-generated content.  Despite a few outliers, Section 230 has been generally interpreted by most courts to protect website operators and other “interactive computer services” against claims arising out of third-party content.

However, a recent dispute involving a Snapchat feature known as “Discover” raises new questions under the CDA.  The feature showcases certain interactive “channels” from selected partners who curate content daily.  Last month, a parent of a 14-year old filed a putative class action against Snapchat claiming that her son was exposed to inappropriately racy content, particularly since, as plaintiff alleges, Snapchat does not tailor its feeds for adult and younger users.  (Doe v. Snapchat, Inc., No. 16-04955 (C.D. Cal. filed July 7, 2016)).  The complaint asserts that while Snapchat’s terms of service prohibit users under 13 from signing up for the service, it does not include any warnings about any possible “offensive” content on Snapchat for those under 18, beyond stating some “Community Guidelines” about what types of material users should not post in “Stories” or “Snaps.”

UPDATE: On January 18, 2019, the Ninth Circuit affirmed the award of damages and injunctive relief in favor of Facebook. (Facebook, Inc. v. Power Ventures, Inc., No. 17-16161 (9th Cir. Jan. 18, 2019) (unpublished)). The California district court in 2017 had awarded Facebook almost $80,000 in CFAA damages, representing only the period after Facebook sent its cease and desist letter to the defendant and including expenses both for technical measures to block Power Ventures from accessing Facebook servers and expenses for negotiating with Power Ventures to voluntarily stop its activities and destroy the data.  The lower court also granted Facebook’s request for a permanent injunction barring defendant from, among other things, accessing Facebook for a commercial purpose without permission.

  • Unauthorized Access: A former employee, whose access has been revoked, and who uses a current employee’s login credentials to gain network access to his former company’s network, violates the CFAA. [U.S. v. Nosal, 2016 WL 3608752 (9th Cir. July 5, 2016)]
  • Data Scraping: A commercial entity that accesses a public website after permission has been explicitly revoked can be civilly liable under the CFAA. However, a violation of the terms of use of a website, without more, cannot be the basis for liability under the CFAA, a ruling that runs contrary to language from one circuit level decision regarding potential CFAA liability for screen scraping activities (See e.g., EF Cultural Travel BV v. Zefer Corp., 318 F.3d 58 (1st Cir. 2003)). [Facebook, Inc. v. Power Ventures, Inc., No. 13-17102 (9th July 12, 2016)]

This past week, the Ninth Circuit released two important decisions that clarify the scope of liability under the federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030.  The Act was originally designed to target hackers, but has lately been brought to bear in many contexts involving wrongful access of company networks by current and former employees and in cases involving the unauthorized scraping of data from publicly available websites.

As we have previously written about, there are several ongoing biometric privacy-related lawsuits alleging that facial recognition-based systems of photo tagging violate the Illinois Biometric Information Privacy Act (BIPA).  Add one more to the list.  A Chicago resident brought a putative class action against Google for allegedly collecting, storing…

As we have previously noted, there are several ongoing privacy-related lawsuits alleging that facial recognition-based systems of photo tagging violate the Illinois Biometric Information Privacy Act (BIPA). The photo storage service Shutterfly and the social network Facebook are both defending putative class action suits that, among other things, allege…