Is Social Media "Harvesting" or "Scraping" a Crime?

Is Social Media "Harvesting" or "Scraping" a Crime?

Most of us are well aware that savvy computer people can use social media sites like Facebook to obtain information that members don't want them to have, or to use it in ways the members would not want it. But what can be done if that happens? Are there any federal criminal statutes that would apply? In this Emerging Issues commentary, Kirsten Koepsel, Carey Lening and Ron Weikers explain the possible crimes committed in such "scraping" or "harvesting" of data off the Web. They write:

"Under the Computer Fraud and Abuse Act of 1986 ('CFAA'), the first question that arises is whether the consultant intentionally accessed a computer without authorization or exceeded authorized access, and thereby obtained information from a protected computer. The network was intentionally accessed, according to the consultant's blog post, but was his access unauthorized or in excess of his authorization? Facebook's 'About' page describes the site's stated purpose as: 'Giving people the power to share and make the world more open and connected.' Users of Facebook communicate their activities, thoughts and photos through their own pages, through friends' pages, and through private e-mails."

"Furthermore, the same harvesting could be done by any Internet user by going to the Facebook directory and clicking on every publicly available name and then recording the URL associated with the name. Such access not only is granted freely to users of the site, but is openly available to any user of the Internet. Some news stories also noted that the same information provided in the BitTorrent download is also available through search engines such as Google and Bing."

"Although the harvested material is accessible to any user of the Internet, Facebook states that by 'using or accessing Facebook, you agree ... [y]ou will not collect users' content or information, or otherwise access Facebook, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission.' Courts have held that scraping and harvesting violate the CFAA; therefore, the consultant violated the terms of use of Facebook. Under the Facebook terms of use, the user also agrees not to 'use Facebook to do anything unlawful, misleading, malicious, or discriminatory.' The consultant could be prosecuted under CFAA for his harvesting activities."

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Kirsten Koepsel is Director, Legal Affairs & Tax, Aerospace Industries Association in Arlington, VA.

Carey Lening is an intellectual property, privacy and technology attorney in Washington, DC.

Ron Weikers is Managing Partner of Weikers & Co. | in Manchester, NH, and Adjunct Professor of Law at Franklin Pierce Law Center in Concord, NH.