Can Government Agencies Ban Scraping?–NAACP v. Kohn (Guest Blog Post)

by guest blogger Kieran McCarthy

For years, open-Internet advocates have argued that scraping bans infringe on First Amendment rights. After all, access to information is a protected form of speech. But since most scraping cases involve two private litigants, and no direct government actor, those seeking to invoke those First Amendment rights were left with weak Pruneyard-type arguments trying to compare the internet with a public square. Even when you hire a fancy Harvard con law professor to make those arguments on your behalf, those arguments are probably going to lose.

But what happens when the government is the party seeking to ban access to scrapers?

Last month, a federal court held that government bans on scraping potentially infringe on First Amendment rights. In South Carolina State Conference of the NAACP v. Kohn, 2023 WL 144447 (D.S.C. Jan. 10, 2023), the district court denied the government’s motion to dismiss the NAACP’s First Amendment challenge to a law that restricted automated access to public housing data.

The facts are as follows:

The NAACP’s Housing Navigator program engages in eviction protection advocacy. To effectively achieve its goals, the NAACP must access and record the names and addresses of tenants who have eviction actions filed against them, because tenants have only ten days from receipt of an eviction notice to request a hearing.

The NAACP alleges it is impossible for it to find all tenants subject to eviction actions quickly enough to provide the necessary support using manual searching. Although South Carolina Appellate Court Rule 610 (Rule 610) theoretically has an alternative process for bulk data distribution, the NAACP contends it was stymied from utilizing that process. See Rule 610(e) (“The Office of Court Administration may authorize bulk distribution of or compiled information from judicial records if it determines, in its discretion, that the resources are available to compile the information; the substantial public interest will be served through significant scholarly, governmental, journalistic, research, evaluation, or statistical purposes; and the identity of specific individuals is ancillary to the request”).

Id. at *1.

The NAACP says that the Public Index is public data and it should be able to scrape it if it so chooses. The state of South Carolina wants to control the flow of information and prohibit scrapers.

Because this case involves a non-profit organization vs. a government entity, rather than the typical startup scraper vs. the data host/data monopolist, it presents a novel fact pattern that forces the court to consider scraping policy issues from a different perspective.

Here, the NAACP seeks automated data collection to advocate on behalf of its members. And the state of South Carolina doesn’t want to give them that data. Or, at a minimum, it wants to provide a barrier to automatic collection of the data that makes it infeasible for the NAACP to do what it wants to do.

The NAACP says that South Carolina’s categorical prohibition against scraping of the

state’s Public Index of court records violates the First Amendment. The state of South Carolina says that it has an “alternative process” for bulk data distribution called South Carolina Appellate Court Rule 610. The NAACP says it has been “stymied” by that process.

The NAACP sued to get access to the Public Index by scraping. The state of South Carolina filed a motion to dismiss.

In evaluating the motion to dismiss, the court is careful to note that there is no “First Amendment guarantee of a right of access to all sources of information within government control.” Citing to Houchins v. KQED, Inc., 438 U.S. 1, 9 (1978). The court then goes on to say that the standard of whether the First Amendment provides access to a public record is based on a “experience and logic test.” (insert snark emoji here)

Under this test, courts consider two questions: whether the particular record “has historically been open to the press and general public” (experience prong) and whether “public access plays a significant positive role in the functioning of the particular process in question” (logic prong).

South Carolina Conference at *7.

The court determined that these records were historically available and so proceeded to the second step, whether public access plays a significant positive role in the functioning of a particular process.

In the second step, the court determined that the scraping restriction warranted intermediate scrutiny in that it entailed a time, place, and manner restriction that was content-neutral.

The NAACP alleged that without scraping, it would be impossible to gather the information quickly enough to meet the deadlines that it seeks to meet in its advocacy role. It also alleged that scraping poses at most a de minimis burden on the functionality of the website. South Carolina argued that such conduct did burden the website and that it provided sufficient alternatives to access the information.

The court said that those sounded like factual disputes.

These factual disputes render determination of the First Amendment issues more appropriate for a motion for summary judgment. See, e.g., Rice v. Kempker, 374 F.3d 675, 677, 678 (8th Cir. 2004) (affirming grant of summary judgment in similar First Amendment case); Whiteland Woods, 193 F.3d at 183, 185 (same).

Accordingly, the Court will deny the motion to dismiss. Because the preceding discussion is dispositive, the Court need not address the parties’ remaining arguments. See Karsten v. Kaiser Found. Health Plan of Mid-Atlantic States, Inc., 36 F.3d 8, 11 (4th Cir. 1994) (“If the first reason given is independently sufficient, then all those that follow are surplusage; thus, the strength of the first makes all the rest dicta.”).

South Carolina Conference at *8.

While the contours of First Amendment protections for scraping are yet to be decided, this opinion shows that scraping is entitled to some protections with government records. And while this might not have the commercial ramifications of the recent hiQ Labs decisions, this is a landmark decision for certain research and advocacy organizations. Think of this decision as creating an implicit, scalable, automated version of the FOIA request—without having to bother with the trouble of making the request—or dealing with bureaucrats on the other side denying those requests.