United States District Court, District of Columbia
CHRISTIAN W. SANDVIG, et al., Plaintiffs,
JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States, Defendant.
D. BATES, UNITED STATES DISTRICT JUDGE.
a dangerous business, reading the fine print. Nearly every
website we visit features Terms of Service
(“ToS”), those endless lists of dos and
don'ts conjured up by lawyers to govern our conduct in
cyberspace. They normally remain a perpetual click away at
the bottom of every web page, or quickly scrolled past as we
check the box stating that we agree to them. But to knowingly
violate some of those terms, the Department of Justice tells
us, could get one thrown in jail. This reading of federal law
is a boon to prosecutors hoping to deter cybercrime. Yet it
also creates a dilemma for those with more benign intentions.
Plaintiffs in this case, for instance, are researchers who
wish to find out whether websites engage in discrimination,
but who have to violate certain ToS to do so. They have
challenged the statute that they allege criminalizes their
conduct, saying that it violates their free speech, petition,
and due process rights. First, however, they must show that
they have a sufficient injury to make it through the
courthouse door, and that their suit is plausible enough to
continue. For the following reasons, the Court finds that
plaintiffs have standing, and that they can bring one (but
not the rest) of their claims.
case centers on a few sections of the Computer Fraud and
Abuse Act (CFAA), a law dedicated to “deterring the
criminal element from abusing computer technology.”
H.R. Rep. No. 98-894, at 4 (1984). Plaintiffs directly
challenge one section, referred to here as the Access
Provision, which sweeps in the greatest amount of conduct.
The Access Provision states that “[w]hoever . . .
intentionally accesses a computer without authorization or
exceeds authorized access, and thereby obtains . . .
information from any protected computer . . . shall be
punished as provided in subsection (c) of this
section.” 18 U.S.C. § 1030(a)(2)(C). The CFAA
defines “protected computer” to mean, among other
things, “a computer . . . which is used in or affecting
interstate or foreign commerce or communication.”
Id. § 1030(e)(2)(B). This definition
encompasses just about all computers hooked up to the
Internet-including computers that house website servers.
See, e.g., United States v. Nosal, 676 F.3d
854, 859 (9th Cir. 2012). The statute also defines
“exceeds authorized access” as “to access a
computer with authorization and to use such access to obtain
or alter information in the computer that the accesser is not
entitled so to obtain or alter.” 18 U.S.C. §
1030(e)(6). Thus, the Access Provision applies to anyone who
purposely accesses an Internet-connected computer without
authorization, or uses a legitimate authorization to receive
or change information that they are not supposed to, and
thereby obtains information from the computer.
CFAA provides for a fine and/or imprisonment for up to one
year upon a first violation of the Access Provision, or up to
ten years for any further offenses. Id. §
1030(c)(2)(A), (C). However, the punishment for an initial
violation rises to a sentence of up to five years'
imprisonment if the offense (1) “was committed for
purposes of commercial advantage or private financial gain,
” (2) was “in furtherance of any criminal or
tortious act in violation of the Constitution” or state
or federal law, or (3) involved obtaining information valued
at more than $5, 000. Id. § 1030(c)(2)(B).
Thus, meeting one of these three conditions makes a first
violation a felony; if none are met, the first violation is a
in this case are four professors and a media organization:
Christian W. Sandvig of the University of Michigan; Kyratso
“Karrie” Karahalios of the University of
Illinois; Alan Mislove of Northeastern University;
Christopher “Christo” Wilson of Northeastern
University; and First Look Media Works, Inc. (“Media
Works”), which publishes the online news platform
The Intercept. Compl. [ECF No. 1] ¶¶
13-14, 16-17, 19. Plaintiffs are conducting studies to
respond to new trends in real estate, finance, and employment
transactions, which increasingly have been initiated on the
Internet. Id. ¶¶ 15, 18, 55. Data brokers
assemble consumers' information from myriad sources and
place consumers into models that include racial, ethnic,
socioeconomic, gender, and religious inferences about them.
Id. ¶¶ 56-57. After brokers create
consumer profiles, those profiles follow consumers around
online through tracking technologies such as cookies.
Id. ¶¶ 58-59. Tracking allows websites and
advertisers to display content targeted at particular groups,
based on consumers' inferred characteristics or the sorts
of websites they visit. Id. ¶¶ 59-60. But
plaintiffs are concerned, “[g]iven the . . . history of
racial discrimination in housing and employment, ” that
this technology may be “harnessed for discriminatory
purposes.” Id. ¶ 61. They are also
concerned that, “when algorithms automate decisions,
there is a very real risk that those decisions will
unintentionally have a prohibited discriminatory
effect.” Id. ¶ 62.
to determine whether members of protected classes are being
discriminated against is to engage in “outcomes-based
audit testing.” Id. ¶ 67. Such testing
commonly involves accessing a website or other network
service repeatedly, generally by creating false or artificial
user profiles, to see how websites respond to users who
display characteristics attributed to certain races, genders,
or other classes. Id. ¶ 70. This method is
similar to classical paired testing procedures, in which
multiple people-identical but for one legally protected
trait-apply for the same house or job. Such procedures are
often used to uncover violations of housing and employment
discrimination laws in the physical world. Id.
¶¶ 41, 50, 52.
plan to engage, and are engaging, in such audit testing.
Sandvig and Karahalios are investigating whether computer
programs that decide what to display on real estate websites
discriminate against users based on race or other factors.
Id. ¶ 82. They are writing a computer program
that will create bots-automated agents that will each browse
the Internet and interact with websites as a human user
might. Id. ¶ 88. Each bot will create a number
of distinct user profiles, each of which is called a
“sock puppet.” Id. ¶ 89. Sandvig
and Karahalios will program the bots to visit real estate
websites and search for properties, while also engaging in
behaviors correlated with members of a particular race.
Id. ¶¶ 90-91. Sandvig and Karahalios will
use an automatic data recording technique known as scraping
to record the properties that each bot sees on the real
estate sites. Id. ¶¶ 90, 92. They can then
examine their data to determine whether race-associated
behaviors caused the sock puppets to see different sets of
properties. Id. ¶ 93.
Mislove and Wilson plan to conduct a study to see whether
hiring websites' algorithms end up discriminating against
job seekers based on protected statuses like race or gender.
Id. ¶ 107. They will first use bots to crawl
the profiles of a random selection of job-seekers to obtain
baseline demographic data, then create fake employer profiles
so that they can search for candidates and record how the
algorithms rank those candidates. Id. ¶¶
114-17. They will also create fictitious sock-puppet job
seeker profiles, and have the fictitious seekers-who will
vary along different demographic axes-apply for fictitious
jobs, to examine how the algorithms rank the candidates.
Id. ¶¶ 118-19, 121-22. Mislove and Wilson
will prevent real people from applying for the false jobs by
giving them titles that say “[t]his is not a real job,
do not apply, ” and will delete the fictitious accounts
and jobs when they finish. Id. ¶ 120.
Works and its journalists seek to investigate online
companies, websites, and platforms, including by examining
any discriminatory effects of their use of algorithms.
Id. ¶ 130.
and Wilson plan to publish their findings in academic papers,
and to bring the results of their research to the public.
Id. ¶ 123. Media Works intends to use the
results of its journalistic investigations to inform the
public about online business practices. Id. ¶
132. Sandvig and Karahalios do not explicitly claim that they
will publish their work, but state that their findings
“would produce important new scientific knowledge about
the operation of computer systems, discrimination, and
cumulative disadvantage.” Id. ¶ 94.
are all aware that their activities will violate certain
website ToS. Id. ¶¶ 95, 124, 131. All
intend to use scraping to record data, which is banned by
many of the websites plaintiffs seek to study. Id.;
see id. ¶¶ 70-71. Many of the housing
websites that Sandvig and Karahalios will study prohibit the
use of bots. Id. ¶¶ 71, 95. All of the
hiring websites that Mislove and Wilson will study prohibit
the use of sock puppets, and most prohibit crawling.
Id. ¶¶ 71, 124. Additionally, some
websites control when and how visitors may speak about any
information gained through the site-even in other forums-by
including non-disparagement clauses in their ToS.
Id. ¶ 72. Some sites also have ToS that require
advance permission before using the sites for research
purposes, which, plaintiffs allege, creates the possibility
of viewpoint-discriminatory permission schemes. Id.
¶ 73. Aside from their ToS violations, plaintiffs'
experiments will have at most a minimal impact on the
operations of the target websites. Id. ¶¶
96, 125. All plaintiffs but Media Works have already begun
some of the activities involved in their research plans,
including activities that require violating websites'
TOS. Id. ¶¶ 98, 126.
claim that they must either refrain from conducting research,
testing, and investigations that (they argue) constitute
protected speech or expressive activity, or else expose
themselves to the risk of prosecution under the Access
Provision of the CFAA. Id. ¶ 137. Plaintiffs
therefore filed this suit against the Attorney General,
raising four causes of action: (1) a facial overbreadth and
as-applied challenge under the Free Speech and Free Press
Clauses of the First Amendment, id. ¶¶
180-86; (2) a First Amendment Petition Clause challenge,
¶¶ 187-93; (3) a vagueness claim under the Fifth
Amendment's Due Process Clause, id. ¶¶
194-98; and (4) a claim of unconstitutional delegation to
private parties under the Fifth Amendment, id.
¶¶ 199-202. The government has moved to dismiss
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)
for lack of standing and failure to state a claim.
See Mot. to Dismiss [ECF No. 10].
begin with the familiar standards that govern Rule 12(b)
analysis. When facing a Rule 12(b)(1) motion to dismiss for
lack of subject-matter jurisdiction, a plaintiff “bears
the burden of showing that he has standing.”
Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009). Just because a plaintiff makes it through the
courthouse doors on one claim does not mean that other claims
can tag along; rather, a plaintiff “must demonstrate
standing for each claim he seeks to press and for each form
of relief that is sought.” Town of Chester v. Laroe
Estates, Inc., 137 S.Ct. 1645, 1650 (2017) (citation
omitted). On a motion to dismiss, plaintiffs must plead facts
that, taken as true, raise a plausible standing claim.
See Humane Soc'y of the U.S. v. Vilsack, 797
F.3d 4, 8 (D.C. Cir. 2015). The Court must take all facts
alleged in the complaint as true and make all reasonable
inferences in plaintiffs' favor. See Gulf Coast Mar.
Supply, Inc. v. United States, 867 F.3d 123, 128 (D.C.
Cir. 2017). However, the Court “may consider materials
outside the pleadings in deciding whether to grant a motion
to dismiss for lack of jurisdiction.” Id.
survive a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a complaint must “contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility does not mean certainty, or that a
claim is more likely to succeed than not, but rather that the
claim at issue rises “above the speculative
level.” Twombly, 550 U.S. at 555. In other
words: if what plaintiffs lay out in the complaint actually
happened, is it more than merely possible that the law has
been violated? Plaintiffs cannot meet this standard through
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 678. Likewise, a court need not
accept a plaintiff's legal conclusions, even if they are
dressed up as factual allegations. See Sickle v. Torres
Advanced Enter. Sols., LLC, 884 F.3d 338, 345 (D.C. Cir.
2018). However, courts must accept as true all facts stated
in the complaint, making all reasonable inferences in
plaintiffs' favor. Id.
The Internet as Public Forum
outset, it is necessary to answer a question that affects
both the standing and the merits inquiries in this case: what
is the First Amendment status of the Internet? And, more
particularly, what powers does the government possess to
regulate activity on individual websites?
government bases much of its argument that plaintiffs do not
have standing, and that they have not alleged a First
Amendment violation, on the premise that this case is about
“a private actor's abridgment of free expression in
a private forum.” Reply in Supp. of Def.'s Mot. to
Dismiss (“Def.'s Reply”) [ECF No. 15] at 2;
see Mem. of P. & A. in Supp. of Def.'s Mot.
to Dismiss (“Def.'s Mem.”) [ECF No. 10-1] at
10-13, 22-24. This argument finds some support in Supreme
Court case law, which has rejected the First Amendment claims
of individuals who wished to distribute handbills or
advertise a strike in shopping centers against the wishes of
the property owners. See Hudgens v. NLRB, 424 U.S.
507, 520 (1976); Lloyd Corp. v. Tanner, 407 U.S.
551, 567-68 (1972). Private property, the Court determined,
does not “lose its private character merely because the
public is generally invited to use it for designated
purposes.” Lloyd, 407 U.S. at 569. Why, then,
would it violate the First Amendment to arrest those who
engage in expressive activity on a privately owned website
against the owner's wishes?
answer is that, quite simply, the Internet is different. The
Internet is a “dynamic, multifaceted category of
communication” that “includes not only
traditional print and news services, but also audio, video,
and still images, as well as interactive, real-time
dialogue.” Reno v. Am. Civil Liberties Union,
521 U.S. 844, 870 (1997). Indeed, “the content on the
Internet is as diverse as human thought.” Id.
(citation omitted). Only last Term, the Supreme Court
emphatically declared the Internet a primary location for
First Amendment activity: “While in the past there may
have been difficulty in identifying the most important places
(in a spatial sense) for the exchange of views, today the
answer is clear. It is cyberspace . . . .”
Packingham v. North Carolina, 137 S.Ct. 1730, 1735
(2017) (citation omitted).
this special status comes special First Amendment protection.
The Packingham Court applied public forum analysis
to a North Carolina law that banned former sex offenders from
using social media websites, employing intermediate scrutiny
because the law was content-neutral. See id. at
1736. The fact that the statute restricted access to
particular websites, run by private companies, did not change
the calculus. Consider: on one of the sites the Court treated
as an exemplar of social media, LinkedIn, “users can
look for work, advertise for employees, or review tips on
entrepreneurship, ” id. at 1735-the same
activities in which Mislove and Wilson wish to engage for
their research. As the Court warned, the judiciary
“must exercise extreme caution before suggesting that
the First Amendment provides scant protection for access to
vast networks in [the modern Internet].” Id.
at 1736. The government's proposed public/private
ownership distinction cannot account for the Court's
determination in Packingham that privately-owned
sites like Facebook, LinkedIn, and Twitter are part of a
public forum, government regulation of which is subject to
heightened First Amendment scrutiny. The Internet “is a
forum more in a metaphysical than in a spatial or geographic
sense, but the same principles are applicable.”
Rosenberger v. Rector & Visitors of Univ. of
Virginia, 515 U.S. 819, 830 (1995).
analogy to the real world, while necessarily imperfect, may
help illustrate the point. Stroll out onto the National Mall
on any day with decent weather and you will discover a
phalanx of food trucks lining the streets. Those food trucks
are privately owned businesses. Customers interact with them
for the private purpose of buying a meal. If they were a
brick-and-mortar store on private property, they would
encounter no First Amendment barrier to removing a patron who
created a ruckus. Yet if a customer standing on a public
sidewalk tastes her food and then yells at those in line
behind her that they should avail themselves of the myriad
other culinary options nearby, the truck could not call the
police to arrest her for her comments. She is in a public
forum, and her speech remains protected even when she
interacts with a private business located within that forum.
makes good sense to treat the Internet in this manner.
“Each medium of expression . . . must be assessed for
First Amendment purposes by standards suited to it, for each
may present its own problems.” Se. Promotions, Ltd.
v. Conrad, 420 U.S. 546, 557 (1975). Regulation of the
Internet presents serious line-drawing problems that the
public/private distinction in physical space does not. The
decisions in Lloyd and Hudgens concerned
“property privately owned and used nondiscriminatorily
for private purposes only.” Lloyd, 407 U.S. at
568. It is difficult to argue that most websites readily meet
this description. As the Supreme Court has recognized, the
Internet “provides relatively unlimited, low-cost
capacity for communication of all kinds.”
Reno, 521 U.S. at 870. Much of this communication
takes place on websites that, in the physical world, would be
seen solely as private, commercial spaces. Take Amazon.com.
As a “popular retail website, ” Amazon
undoubtedly has a private use “as a seller of
products.” Packingham, 137 S.Ct. at 1741
(Alito, J., concurring in the judgment). Yet the site also
“facilitates the social introduction of people for the
purpose of information exchanges, ” since it
“allows a user to create a personal profile” and,
“[w]hen someone purchases a product on Amazon, the
purchaser can review the product and upload photographs, and
other buyers can then respond to the review.”
Id. Conversely, Facebook-to which the Court pointed
in Packingham as a quintessential site for protected
First Amendment activity-allows users to buy and sell
products in its Marketplace, and, like many social media
sites, sells ads to make revenue. Simply put: the public
Internet is too heavily suffused with First Amendment
activity, and what might otherwise be deemed private spaces
are too blurred with expressive spaces, to sustain a direct
parallel to the physical world.
same time, however, it would be ill-advised to “equate
the entirety of the [I]nternet with public streets
and parks.” Id. at 1738 (emphasis added). To
do so would “gloss over the dual public and private
nature of digital arenas, ” and subject to heightened
scrutiny regulations on even the Internet's most secluded
nooks and crannies. Note, First Amendment-Freedom of
Speech-Public Forum Doctrine-Packingham v. North
Carolina, 131 Harv. L. Rev. 233, 238 (2017). Rifling through
a business's confidential files is no less a trespass
merely because those files are located in the cloud. A hacker
cannot legally break into a Gmail account and copy the
account- holder's emails, just as a busybody cannot
legally reach into someone else's mailbox and open her
mail. The First Amendment does not give someone the right to
breach a paywall on a news website any more than it gives
someone the right to steal a newspaper.
separates these examples from the social media sites in
Packingham is that the owners of the information at
issue have taken real steps to limit who can access it. But
simply placing contractual conditions on accounts that anyone
can create, as social media and many other sites do, does not
remove a website from the First Amendment protections of the
public Internet. If it did, then Packingham-which
examined a law that limited access to websites that require
user accounts for full functionality-would have come out the
other way. 137 S.Ct. at 1737; see also Orin S. Kerr,
Cybercrime's Scope: Interpreting “Access”
and “Authorization” in Computer Misuse
Statutes, 78 N.Y.U. L. Rev. 1596, 1658 (2003)
(“Applying a contract-based theory of authorization in
a criminal context . . . may be constitutionally overbroad,
criminalizing a great deal beyond core criminal conduct,
including acts protected by the First Amendment.”).
Rather, only code-based restrictions, which “carve
out a virtual private space within the website or service
that requires proper authentication to gain access, ”
remove those protected portions of a site from the public
forum. Orin S. Kerr, Essay, Norms of Computer
Trespass, 116 Colum. L. Rev. 1143, 1171 (2016). Stealing
another's credentials, or breaching a site's security
to evade a code-based restriction, therefore remains
unprotected by the First Amendment.
return to the National Mall example, suppose that a food
truck remains stationed on the Mall but boards up for the
night, and the owner returns home. By shutting the food in a
truck, perhaps along with her cooking instructions, the owner
has placed a barrier between that property and the public
forum outside. Thus, while the police could not arrest a
customer for telling others in line that the food tastes
terrible, or for reading the menu on the truck's
exterior, they could arrest that customer for
breaking into the boarded-up truck seeking confidential
culinary information. This is true even if the customer
claimed she was doing so in order to broadcast to the world
the truck's substandard ingredients and ill-conceived
recipes. While the First Amendment has free rein on the Mall
generally, it does not protect those who circumvent barriers
that demarcate private areas, even if those private areas are
surrounded by an otherwise public forum. This distinction
guides the Court's analysis here.
reaching the merits of plaintiffs' claims, the Court must
assure itself that they have standing-a sufficient stake to
transform this dispute into one of the “Cases” or
“Controversies” on which federal courts may pass
judgment. U.S. Const. art. III, § 2. “The
‘irreducible constitutional minimum of standing
contains three elements': (1) injury-in-fact, (2)
causation, and (3) redressability.” Rainbow/PUSH
Coal. v. FCC, 330 F.3d 539, 542 (D.C. Cir. 2003)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
560 (1992)). Plaintiffs must plead or prove each element of
standing “with the manner and degree of evidence
required at the successive stages of the litigation.”
Lujan, 504 U.S. at 561. Here, therefore,
“general factual allegations of injury resulting from
the defendant's conduct may suffice” to allege
standing, “for on a motion to dismiss we
‘presum[e] that general allegations embrace those
specific facts that are necessary to support the
claim.'” Id. (alteration in original)
(citation omitted). For any given claim or form of relief,
“the presence of one party with standing is
sufficient” to reach the issue. Rumsfeld v. Forum
for Acad. & Institutional Rights, Inc., 547 U.S. 47,
53 n.2 (2006).
this is a pre-enforcement challenge, plaintiffs must meet
more specific conditions to satisfy the injury-in-fact
requirement. They must plausibly allege “an intention
to engage in a course of conduct  arguably affected with a
constitutional interest, but  proscribed by a statute, and
 [that] there exists a credible threat of prosecution
thereunder.” Susan B. Anthony List v.
Driehaus, 134 S.Ct. 2334, 2342 (2014) (quoting
Babbitt v. United Farm Workers Nat'l Union, 442
U.S. 289, 298 (1979)). The government argues that plaintiffs
cannot meet this test. See Def.'s Mem. at 8-19.
Plaintiffs contend that they do intend to engage in
constitutionally protected speech, and that they have pled a
credible threat of prosecution. See Pls.' Mem.
of P. & A. in Opp'n to Def.'s Mot. to Dismiss
(“Pls.' Mem.”) [ECF No. 13] at 18-30. It is
clear that any injury to plaintiffs is caused by the
government's criminalization of websites' ToS, and
that the declaratory and injunctive relief plaintiffs seek,
see Compl. at 46-47, would redress the injury.
Therefore, the question is whether plaintiffs allege a
sufficient injury in the first place.
speaking, a court's standing analysis must be
“especially rigorous when reaching the merits of the
dispute would force us to decide whether an action taken by
one of the other two branches of the Federal Government was
unconstitutional.” Raines v. Byrd, 521 U.S.
811, 819- 20 (1997). However, the D.C. Circuit has
interpreted the Supreme Court's pre-enforcement standing
doctrine broadly in the First Amendment sphere. Indeed,
“the courts have shown special solicitude to
pre-enforcement challenges brought under the First
Amendment.” N.Y. Republican State Comm. v.
SEC, 799 F.3d 1126, 1135 (D.C. Cir. 2015). Therefore,
the Circuit has found, “the courts' willingness to
permit pre-enforcement review is ‘at its peak' when
claims are rooted in the First Amendment.” Id.
at 1135 (citation omitted). “Pre-enforcement review,
particularly in the First Amendment context, does not require
plaintiffs to allege that they ‘will in fact'
violate the regulation in order to demonstrate an
injury.” U.S. Telecom Ass'n v. FCC, 825
F.3d 674, 739 (D.C. Cir. 2016) (quoting Driehaus,
134 S.Ct. at 2345), reh'g en banc denied, 855
F.3d 381 (D.C. Cir.), cert. docketed, No. 17-504
(U.S. Oct. 3, 2017). Nor need they show that they are likely
to be prosecuted. Rather, “[s]tanding ‘to
challenge laws burdening expressive rights requires only a
credible statement by the plaintiff of intent to commit
violative acts and a conventional background expectation that
the government will enforce the law.'” Id.
(quoting Act Now to Stop War & End Racism Coal. v.
District of Columbia (ANSWER I), 589 F.3d 433,
435 (D.C. Cir. 2009)).
“Arguably Affected With a Constitutional
assert that their conduct falls within three categories of
First Amendment-protected activity. Scraping data from their
target websites, they allege, is subject to the First
Amendment right to record or preserve information. Pls.'
Mem. at 10-14. Moreover, employing bots and sock puppets and
creating false user accounts constitute harmless false
speech. Id. at 14- 17. And their planned
post-research activities are protected by the right to
publish. Id. at 17-18. All of these claims are
sufficiently plausible to conclude that plaintiffs'
proposed conduct is “arguably affected with a
constitutional interest.” Driehaus, 134 S.Ct.
scraping plausibly falls within the ambit of the First
Amendment. “[T]he First Amendment goes beyond
protection of the press and the self-expression of
individuals to prohibit government from limiting the stock of
information from which members of the public may draw.”
First Nat. Bank of Boston v. Bellotti, 435 U.S. 765,
783 (1978). The Supreme Court has made a number of recent
statements that give full First Amendment application to the
gathering and creation of information. Additionally, six
courts of appeals have found that individuals have a First
Amendment right to record at least some matters of public
interest, in order to preserve and disseminate
ideas. That plaintiffs wish to scrape data from
websites rather than manually record information does not
change the analysis. Scraping is merely a technological
advance that makes information collection easier; it is not
meaningfully different from using a tape recorder instead of
taking written notes, or using the panorama function on a
smartphone instead of taking a series ...