Elon Musk’s ‘War’ On Possibly Imaginary Scrapers Now A Lawsuit, Which Might Actually Work

Legal Issues

from the killing-the-open-web dept

Elon Musk seems infatuated with bots and scrapers as the root of all his problems at Twitter. Given his propensity to fire engineers who tell him things he doesn’t want to hear, it’s not difficult to believe that engineers afraid to tell Musk the truth are conveniently blaming “scraping” on the variety of problems that Twitter has had since Musk’s YOLO leadership style at Twitter has knocked out some fundamental tools that kept the site reliable in the before times.

He tried to blame bots for spam (which he’s claimed repeatedly to have dealt with, but then gone back to blaming them for other things, because he hasn’t actually stopped automated spam). His attempts to “stop the bots” has resulted in a series of horrifically stupid decision-making, including believing that his non-verification Twitter Blue system would solve it (it didn’t), believing that cutting off free API access would drive away the spam bots (it drove away the good bots), and then believing that rate limiting post views would somehow magically stop scraping bots (which might only be scraping because of his earlier dumb decision to kill off the API).

The latest, though, is that last week Twitter went to court last week to sue ‘John Doe’ scrapers in a Texas court. And while I’ve long argued that scraping should be entirely legal, court precedents may be on Twitter’s side here.

Scraping is part of how the internet works and has always worked. The war on scraping is problematic for all sorts of reasons, and is an attack on the formerly open web. Unfortunately, though, courts are repeatedly coming out against scraping.

So, while I’d argue that this, from the complaint, is utter nonsense, multiple courts seem to disagree and find the argument perfectly plausible:

Scraping is a form of unauthorized data collection that uses automation and other processes to harvest data from a website or a mobile application.

Scraping interferes with the legitimate operation of websites and mobile applications, including Twitter, by placing millions of requests that tax the capacity of servers and impair the experience of actual users.

This is not how any of this should work, and is basically just an attack on the open web. Yes, scraping bots can overwhelm a site, but it’s on the site itself to block it, not the courts.

Twitter users have no control over how data-scraping companies repackage and sell their personal information.

This sounds scary, but again is nonsense. Scraping only has access to public information. If you post information publicly, then of course users don’t have control over that information any more. That’s how information works.

The complaint says that Twitter (I’m not fucking calling it ‘X Corp.’) has discovered IP addresses engaged in “flooding Twitter’s sign-up page with automated requests.” The complaint says:

The volume of these requests far exceeded what any single individual could send to a server in a given period and clearly indicated that these automated requests were aimed at scraping data from Twitter.

This also feels like a stretch. It seems like the more likely reason for flooding a sign up page is to create spam accounts. That’s also bad, of course, but it’s not clear how this automatically suggests scraping.

Of course, there have been a bunch of scraping cases in the past, and there are some somewhat mixed precedents here. There was the infamous Power.com case, that said it could be a CFAA (Computer Fraud and Abuse Act) violation to scrape content from behind a registration wall (even if the user gave permission). Last year, there was the April ruling in the 9th Circuit on LinkedIn/HiQ which notably said that scraping from a public website rather than a registration-walled website could not be a CFAA violation.

Indeed, much of the reporting on Twitter’s new lawsuit is pointing to that decision. But, unfortunately, that’s the wrong decision to look at. Months later, the same court ruled again in that case (in a ruling that got way less attention) that even if the scraping wasn’t a CFAA violation, it was still a a violation of LinkedIn’s terms of service, and granted an injunction against the scrapers.

Given the framing in the complaint, Twitter seems to be arguing the same thing (rather than a CFAA violation, that this is a terms of service violation). On top of that, this case is filed in Texas state court, and at least in federal court in Texas, the 5th Circuit has found that scraping data can be considered “unjust enrichment.”

In other words, as silly as this is, and as important scraping is to the open web, it seems that courts are buying the logic of this kind of lawsuit, meaning that Twitter’s case is probably stronger than it should be.

Of course, Twitter still needs to figure out who is actually behind these apparent scraping IP addresses, and then show that they actually were scraping. And who knows if the company will be able to do that. In the meantime, though, this is yet another case, following in the unfortunate pattern of Facebook, LinkedIn, and even Craigslist, to spit on the open web they were built on.

Filed Under: lawsuits, scraping, terms of service, texas
Companies: twitter