A NEW COMMON LAW of WEB SCRAPING of WEB SCRAPING LAW a NEW COMMON Affiliate, Berkman Klein Center for Internet & Society, Harvard University

Home , Clearview AI

43059-lcb_25-1 Sheet No. 82 Side A 03/17/2021 10:17:28 * by 147 147 isting legal remedies give aggrieved plain-aggrievedgive remedies legal isting Benjamin L.W. Sobel Sobel L.W. Benjamin A NEW COMMON LAW OF WEB SCRAPING OF WEB SCRAPING LAW A NEW COMMON Affiliate, Berkman Klein Center for Internet & Society, Harvard University. I am grateful grateful am I University. Harvard Society, & Internet for Center Klein Berkman Affiliate, Section II argues that the Ninth Circuit’s hiQ decision marks, at least for the the least at for decision hiQ marks, Circuit’s Ninth the Section that argues II Section IV catalogs familiar common law claims to argue that no conduct established that harm relational the captures fully claim contract or tort, property, new a proposes V Section users. Internet individual on wreaks Clearview’s like plaintiffs aggrieved that can provide service, of of terms breach faith tort, bad forms and compiled them into a facial recognition available database to law that enforcement and it private industry. To made make matters hiQ in worse, decision Circuit’s Ninth the after months just light to came scandal the violate not does probably web public the scraping that held which LinkedIn, v. the Computer Fraud and Abuse Act (CFAA). Before hiQ, the CFAA would have seemed like the surest route to redress against Clearview. This Article analyzes the implications of the hiQ decision, situates the Clearview outrage ex why explains context, historical in In- ordinary to a proposes and tort tiffs to empower little narrow no recourse, Clear- like actors by privacy of breaches gross against action take to users ternet service. of of terms breach faith of bad the tort view: The Clearview The AI Clearview scandal is facial breach recognition a of pri- monumental re- company shadowy A time. inopportune particularly a at arrived that vacy portedly scraped billions of publicly-available images from social media plat- time being, the reascension of common law causes of action in a field that had had fieldthat a in ofaction causeslaw common of reascension the being, time been dominated by the CFAA. Section III shows that the tangle of possible common law theories that courts must now adapt to cyberspace resembles the reck- plaintiffs privacy and jurists that concepts contract and property strained courts, modern that suggests It century. twentieth the of turn the at with oned following the example some of their predecessors set over a century ago, may properly recognize some common law remedies for present-day misconduct. * M K

to Saptarishi Bandopadhyay, Alvaro Bedoya, Dinis Cheian, Gabe Doble, Terry Fisher, John Gold- John Fisher, Terry Doble, Gabe Cheian, Dinis Bedoya, AlvaroBandopadhyay, Saptarishi to Rebecca Smith, Henry Livingstone, Spencer Hopper, Ben Grimmelmann, James Gratz, Joe berg, and arguments, my improved and that have clarified comments for Tushnet, ViljoenSalomé and to the Harvard Law School Project on the Foundations of Private Law for financial support of this project.

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M K C Y 176 176 177 179 168 168 169 174 175 172 172 199 199 189 189 190 192 194 183 183 185 ...... 187 187 ...... 195 195 ...... 157 157 ...... 198 198 ...... 163 163 ...... 166 166 ...... 154 154 ...... 182 182 ...... 173 173 ...... 176 176 ...... 168 168 ...... 156 156 ...... 161 161 ...... 160 160 ...... Consequence of Nonconsensual, Commercial Facial Recognition .. .. Recognition Facial Commercial Nonconsensual, of Consequence ...... Harms 1. Statutes...... State Under Rights Users’ 2...... Claims Tort” “Privacy Users’ 3...... Enrichment Unjust 1...... Interests Property Personal Platforms’ 2...... Interests Property Intellectual Platforms’ 1...... Interests Property Personal Users’ 2...... Interests Copyright Users’ 3...... Rights Users’ Publicity Tort of Bad Faith Breach of Terms of Service of Terms Breach Faith of Bad Tort 1...... of Breach Willfulness 2. 2. Proximate and Certain, Foreseeable, a Is Harm Privacy 3...... Blameworthy Morally Is Conduct Alleged Clearview’s 4. Privacy Biometric Prevent to Is Policy Public California’s 1. 1...... Benefit Users’ for Exist Arguably Covenants Anti-Scraping 1...... Response Fiduciary The Information A. A. Problem Trust-Your-Overlords The D. Interests Relational Platforms’ C. C. Interests Relational Users’ A. A. Interests Property Users’ B. Interests Property Platforms’ D. D. of Formalism Defense Qualified A 167 ...... Problem C. C. Do Can Courts Law What Common B. Contract From Privacy A. A. Property From Privacy C. C. Law?) Common Waxing the (and CFAA Waning The Should Help Us ...... 159 159 ...... Us Help Should D. D. The Breaches: Tortious and Parties Third to Duties Synthesizing B. B. CFAA Burgeoning The C. C. Tortious Be Can Duties Contractual of Breaches Faith Bad A. A. Origins Law Common Cyberlaw’s B. B. Parties to Third Duties Create Can of Service Terms Bilateral with with a proper remedy without sacrificing doctrinal fidelity or theoretical coherence. V. V. 183 ...... Service of Terms of Breach Faith Bad of Tort The IV. IV. Property a than Problem a Contracts Like More Looks Scraping Web III. III. and Can Law Common Again: Why Over All and Brandeis Warren II. II. 153 ...... Turn Law Common Cyberlaw’s 148 148 REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM I. 149 ...... Introduction 43059-lcb_25-1 Sheet No. 82 Side B 03/17/2021 10:17:28 B 03/17/2021 82 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 83 Side A 03/17/2021 10:17:28

, 199 200 201 203 204 IMES T

. (Jan. 31, . 31, (Jan. , N.Y. OUND 28,(Jan. 2020), F EWS N RONTIER EED EED F F UZZ , B Days after Hill’s story broke, a a broke, story Hill’s after Days ...... 201 201 ...... LECTRONIC , E Clearview AI Once Told Cops To “Run Wild”With “Run To CopsTold OnceClearview AI Clearview Clearview AI—Yet Another Example of Why We Need a (Feb. 27, 2020), https://www.buzzfeednews.com/article/ https://www.buzzfeednews.com/article/ 2020), 27, (Feb. I. INTRODUCTION I. INTRODUCTION note 1. 1. note EWS outraged civil society. civil outraged N supra 2020), https://www.nytimes.com/2020/03/05/technology/clearview-

exposé EED , Jennifer Lynch, F 5, Before Clearview Became a Police Tool, It Was a Secret Plaything of the Rich The Secretive Company That Might End Privacy as We Know It Know We as Privacy End Might That Company Secretive The

UZZ note 1. 1. note

(Mar. , B 1. 1...... Unlimited Is Tort The 2. 2...... Consequences of Knowledge or to Recklessness 3. Covenant...... Breached of Materiality 2...... Limited Too Is Tort The 3...... Amendment? First the About What supra The company’s CEO initially claimed that the software was “strictly for for “strictly was software the that claimed initially CEO company’s The E. E. Objections Threshold Some Answering IMES IMES Kashmir Kashmir Hill, Hill, See generally, e.g. Kashmir Hill, Hill, Kashmir T On January 18, journalist 2020, the Kashmir Hill investigative abroke sensa-

The Clearview Clearview did not invent facial recognition technology or pioneer a particularly particularly a pioneer or technology recognition facial invent not did Clearview

2 3 4 1 M K dinner dates. dinner ban-law-enforcement-use-face; Ryan Mac et al., al., et Mac Ryan ban-law-enforcement-use-face; Its Facial Recognition Tool. It’s Now Facing Legal Challenges ryanmac/clearview-ai-fbi-ice-global-law-enforcement. ryanmac/clearview-ai-fbi-ice-global-law-enforcement. N.Y. very activity. very tional tional story: a “secretive” startup, Clearview AI, offers facial recognition software that identifies persons of interest against a database of nearly three billion photographs. VI...... Conclusion 206 law enforcement,” but later reporting revealed that Clearview’s app was also used by by used also was app Clearview’s that revealed reporting later but enforcement,” law private to companies even by to private surveil premises—and individuals their vet 2020), 2020), https://www.eff.org/deeplinks/2020/01/clearview-ai-yet-another-example-why-we-need- (Jan. (Jan. 18, leakof subsequent a but applications, 2020), enforcement law on focused report Hill’s recognition.html. https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial- Clearview’s client list revealed that it also offered its services to private entities. Ryan Mac et al., Clearview’sFacialRecognition JusticeHasBeentheUsedbyApp Department, ICE,Macy’s,Walmart,

2021] 2021] SCRAPING WEB 149 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM investors.html; Mac et al., Now Recognition Face of Use Enforcement Law Ban on https://www.buzzfeednews.com/article/ryanmac/clearview-ai-cops-run-wild-facial-recognition- just just “scraped” publicly-accessible photographs from sites like Facebook, YouTube, Twitter, and Instagram. That is, Clearview harvested images in bulk, using automated software—in violation of the sites’ Terms of Service, which prohibited that powerful algorithm. Nor did Clearview develop a business model that allowed it to it to allowed that model a business develop Clearview did Nor algorithm. powerful license a singularly comprehensive photo database. Instead, Clearview reportedly and the NBA C Y 43059-lcb_25-1 Sheet No. 83 Side A 03/17/2021 10:17:28 A 03/17/2021 83 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 83 Side B 03/17/2021 10:17:28

M K C Y 360 360 , 24 , N.Y. AW No. 20 No. 20 , and and the Twitter Twitter , L hiQ ]. ]. ruling strengthens Mutnick hiQ

The length and breadth an The ar- court acknowledged prohibiting LinkedIn from blocking a a from blocking LinkedIn prohibiting , the Ninth Circuit had held that scraping Senator Ed Markey sent Clearview an inquiry into into inquiry an Clearview sent Markey Ed Senator Given the factual similarities between between similarities factual the Given But even if the CFAA may not prohibit Clearview’s Clearview’s prohibit not may CFAA the if even But

hiQ hiQ v. LinkedIn Embattled Startup Clearview AI on Uncertain Legal Footing Twenty Years of Web Scraping and the Computer Fraud and Abuse Act Abuse and Fraud Computer the and Scraping Web of Years Twenty Twitter Tells Facial Recognition Trailblazer to Using Photos Stop Site’s Trailblazer Recognition Facial Tells Twitter L. 372, 377 (2018) (“Most often the legal status of scraping is characterizedis scraping of the legalstatus often (“Most 372,(2018) 377 L.

. ECH T

& , 938 F.3d at 1004. 1004. at F.3d 938 ,

CI https://www.markey.senate.gov/imo/media/doc/Clearview%20letter%202020.pdf; https://www.markey.senate.gov/imo/media/doc/Clearview%20letter%202020.pdf; S.B. Andrew Sellars, Sellars, Andrew Ben Kochman, hiQ S hiQ Labs, Inc. v. LinkedIn Corp.,995 2019). 985,hiQ 938 (9th v. Cir. LinkedIn F.3dInc. Labs, Id. First Amended Class Action Complaint at 19–32, Mutnick v. Clearview AI, Inc. Kashmir Hill, Letter from Senator Edward J. Markey to Hoan Ton-That, CEO, Clearview AI (Jan. 23,

(Jan. 22, 2020), https://www.nytimes.com/2020/01/22/technology/clearview-ai-twitter- The The CFAA would have been the most obvious statute that platforms could The timing of the Clearview revelations seemed particularly inopportune. Just Just inopportune. particularly seemed revelations Clearview the of The timing J.

8 9 10 11 12 5 6 7 IMES scraping scraping is a legal enigma. Clearview’s legal position. Clearview Clearview scandal, commentators have observed that the have used in a civil action against Clearview—although even under the CFAA, web web CFAA, the under even Clearview—although against action civil a in used have letter.html. letter.html. 2020), B.U. sent Clearview a that letter demanding Clearview desist from scraping Twitter and collected. had it data the delete

as something just shy of unknowable, or a matter entirely left to the whims of courts, plaintiffs, or prosecutors.”). (Feb. 28, 2020), https://www.law360.com/articles/1242123/embattled-startup-clearview-ai-on- uncertain-legal-footing. lawsuits. lawsuits. T 150 150 putative class action violations and its againstalleging was filed founder, Clearview related to rights of statute, constitutional of privacy violations an biometric Illinois Clearview’s collaboration with law enforcement, and unjust enrichment. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM its partnerships with law enforcement, and a New York state legislator introduced a a introduced legislator state York New a and enforcement, law with partnerships its technology. recognition facial of use police prohibit to bill S7572, 2020 Leg., 243rd Sess. (N.Y. 2020). 2020). (N.Y. Sess. 243rd Leg., 2020 S7572, list of claims that an aggrieved party might still assert against a scraper: “trespass list to a of that claims party “trespass an against aggrieved scraper: still might assert chattels . . . claims copyright infringement, misappropriation, unjust enrichment, .” . . . privacy of breach or contract, of breach conversion, alleged conduct, the company is hardly immune from liability. Aware of the vacuum vacuum the of Aware liability. from immune hardly is company the conduct, alleged a laundry enumerated Circuit Ninth the the of CFAA, interpretation its by created late late the Fraud and Abuse Computer Act (CFAA). four months earlier, four in earlier, months may not on LinkedIn vio- profiles from professional information available publicly gument that LinkedIn users might “retain some privacy interests” in the information information the in interests” privacy some “retain might users LinkedIn that gument on an profiles, their but affirmed injunction data-scraping. startup’s C 4676667Ill. C 512,202012,(N.D. [hereinafter2020) WL Aug. FAC, 43059-lcb_25-1 Sheet No. 83 Side B 03/17/2021 10:17:28 B 03/17/2021 83 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 84 Side A 03/17/2021 10:17:28 , it- See platforms Facial Facial Recognition Technology Without legislative inter- (June 11, 2015), https://www. OST Ben Sobel, Sobel, Ben P

. ASH Rather, the CFAA,and the moreplausible

they engender dutiesthat extend beyond the , W See generally obscures something obscures fundamentally more bizarre

preserve the trust and goodwill of its members . . .” and concludedmembers and its . . .” of goodwill and trust the preserve note 10, at 372–75 (“Given its utility, the technique has been adopted supra supra Sellars, Sellars, LinkedIn’s own briefing reveals this point. It argued, “LinkedIn acted legitimately to See has which (BIPA), Act Privacy Information Biometric Illinois’s is exception clear one The But treating the Clearview episode as just a test of the CFAA (and the common common the (and CFAA the of test a just as episode Clearview the treating But This Article’s central claim is that, in limited circumstances, users are not pow- not are users circumstances, limited in that, is claim central Article’s This , text accompanying notes 172–173. 15 13 14 M K Is Everywhere. It May Not Be Legal. been the basis of other class actions and already is the basis for the lawsuit against Clearview. Clearview. against lawsuit for the basis the is already and actions class of other basis the been infra widely. widely. One company estimates that about a quarter of all current web traffic comes from web scrapers.”).

washingtonpost.com/news/the-switch/wp/2015/06/11/facial-recognition-technology-is-everywhere- may-not-be-legal/. 2021] 2021] of this list illustrates the diverse thicket of legal interests that web scraping impli- cates. It also shows the profound and persistent legal indeterminacy of an activity years. for commonplace been that has SCRAPING WEB 151 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM vention, it seems like users must delegate the enforcement of their interests to major major to interests their of enforcement the delegate must users like seems it vention, as platforms—even against actors who have behaved as outrageously as Clearview has. allegedly view under the CFAA or related common law claims. claims the Ninth Circuit suggests might replace it, give a right of action to to action of right a give it, replace might suggests Circuit Ninth the claims Clear- sue platforms as sidelines the on sit would users Aggrieved users. their not to protect member privacy and to and privacy member protect law theories that might it) replace about the controversy. Despite widespread perceptions that Clearview’s undertak- ings have harmed individual Internet users, most of those users have itself. Clearview no against action of surefire cause erless against actors like Clearview. Instead, it proposes that a courts it Instead, proposes nar- recognize that like Clearview. actors erless against of tort the Clearview: against assert could platforms targeted of users that claim row of misalignment the redress helps a claim Such service. of terms of breach faith bad incentives between dominant platforms and the users who having to currently addition In terms. depend their of on violations harmful parties’ third police to them Throughout appeal, of precedent. the cause is action in functional rooted relevant the the twentieth century, common law courts have recognized that certain contracts that significant so and pervasive so are parties to a particular legal instrument. And for the same reasons, courts have held victims which for harms emotional cause contracts certain of breaches faith bad that may recover in tort. These same precedential principles justify a narrow, modern of service. terms of breach faith bad of tort its brief by observing, “hiQ’s data-scraping is ‘not only LinkedIn contrary users, it is to contrary to the the public interest.’” Appellant’s interestsReply Brief at 14–15, of 28, hiQ individual Labs, Inc. v. LinkedIn Corp., 938 F.3d 985 (9th Cir. 2019) (No. 17-16783) (internal citations omitted). C Y 43059-lcb_25-1 Sheet No. 84 Side A 03/17/2021 10:17:28 A 03/17/2021 84 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 84 Side B 03/17/2021 10:17:28 M K

C Y . 193 EV R

. ARV , 4 H The The Right to Privacy and predictive. It first explains the un- y, today, Internet users’ privacy interests e. It also illuminates the the tort problem e. It also illuminates note 16. 16. note supra may deploy these concepts. The construction of of The construction these concepts. deploy may Repudiations of Warrenand Brandeisby turn-of-the-century Already, plaintiffs in various jurisdictions have asserted imagi- asserted have jurisdictions various in plaintiffs Already, . Warren & Brandeis, Section V.A.1. Samuel Samuel D. Warren & Louis D. Brandeis, See infra See generally Section Section III situates those common law forms in historical context. It argues A historical perspective reveals more than just a powerful doctrinal basis for the the for basis doctrinal powerful a just than more reveals perspective historical A Section Section II of this Article is expository Section V explains the “trust-your-overlords” problem: the mismatched incen- mismatched the problem: “trust-your-overlords” the explains V Section Section IV explicates the plausible common law claims that users and platforms platforms and users that claims law common plausible the explicates IV Section 16 17 18 that that the legal indeterminacy of reveal web to scraping unraveled resembles Brandeis and the Warren tangle that law of case nineteenth- property and contract century a right to privacy. certain legal status of unauthorized scraping of public information and introduces the myriad legal doctrines that could govern the activity. Next, Section II predicts that common will the law embrace forms judiciary to the determine CFAA’s reach it. fall beyond that cases adjudicate and to it helps predict how today’s courts courts today’s how predict helps it as privacy a and dates of back hybrid contracts interests property implied personal in synthesized Brandeis Louis and Warren Samuel that jurisprudence English the to Privacy to Right The (1890). indispensable contracts to create “special relationships” and tort duties to third par- third to duties tort and relationships” “special create to contracts indispensable fiduciaries.” “information for proposals modern-day of origins the explains ties jurists reveal how these same contract and property doctrines might operate against against operate might doctrines property and contract same these how reveal jurists today’s privacy plaintiffs. Finally, examining how courts have interpreted socially- 152 152 REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM tives and capabilities that can prevent platforms from protecting users against third against third users protecting from platforms prevent can that and capabilities tives “information an of, criticisms and for, proposals discusses It abuses. privacy parties’ native property and contractual claims against Clearview. These claims, both factu- both claims, These Clearview. against claims contractual and property native parallel the made claims in that ally and plaintiffs turn-of-the-century analytically, to right law common a of distillation Brandeis’s and Warren following cases privacy privacy. Judicial responses to the vanguard privacy torts of con- the privacy twentieth today’s for century redress providing in courts the of role proper the illuminate cerns, as well as the argumentative strategies that might serve or disserve today’s plaintiffs. tort of bad faith breach of of terms servic would help to solve. History explains wh law—and property and contract both from forms legal competing on hinge to seem states, today’s law leaves users with no clear recourse. recourse. clear no with users leaves law today’s states, might assert against unauthorized scraping. It observes that the law of personal and and personal of law that the observes It scraping. unauthorized against assertmight cre- has CFAA waning the void the fill to ill-suited generally is property intellectual ated, at least with respect data. to Established relational scraping publicly-available all almost in inadequate: own their on are but problem, the address better doctrines 43059-lcb_25-1 Sheet No. 84 Side B 03/17/2021 10:17:28 B 03/17/2021 84 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 85 Side A 03/17/2021 10:17:28 considered considered —differenti- ’s precise holding holding precise ’s the common law’s hiQ take lessons from Labs, Inc. v. Corp. LinkedIn

Theday of the decision, one of thefore- hiQ

(Sept. 9,2019), https://reason.com/2019/09/09/scraping-a-public-

Scraping A Public Website Doesn’t Violate the CFAA, Ninth Circuit (Mostly) II. CYBERLAW’S COMMON LAW TURN TURN LAW COMMON II. CYBERLAW’S ONSPIRACY C , 938 F.3d at 999. 999. at F.3d 938 , hiQ at 991.at

1001. at ’s digestible takeaway is that scraping a publicly-available websitedoes not a is publicly-available that scraping ’s digestible takeaway . OLOKH hiQ Labs, Inc. v. LinkedIn Corp., 9852019). hiQ938 (9th v. Cir.LinkedIn F.3dInc. Labs, Id Id. S. Orin Kerr, See TheNinth Circuit concludedthat hiQ raiseda seriousquestion as to whether In September In 2019, the September Ninth of Circuit issued its latest interpretation major hiQ , V , 19 20 21 22 23 M K breaches a material covenant in the terms of service, with knowledge or disregard reckless that its actions will harm the plaintiff. The new cause of action will not singlehandedly fix the discontents of networked capitalism. But a novel other common that solutions comprehensive more the than implement to easier far is tort law scholarscommentatorsand have proposed, couldand providerelief while sweeping us. elude changes Act.the Abuse and Computer Fraud modern life makes it appropriate to award tortious damages against and in breach faith. intentionally V them bad princi- Section these synthesizes two parties who of service. of terms faith breach of bad the tort action: of a new cause ples to derive third a against recover to platform Internet an with privity in users permits tort The party that is also in privity with the platform, when that third party willfully website-doesnt-violate-the-cfaa-ninth-circuit-mostly-holds/. website-doesnt-violate-the-cfaa-ninth-circuit-mostly-holds/. Holds responses to other pervasive and consequential contracts. The California Supreme non- to duties to rise give to services significant socially for contracts read has Court parties. The court has also recognized that the importance of certain contracts in

2021] 2021] focused jurists that observes V Section incentives. these correct to system fiduciary” on regulating platforms’ terms of service can SCRAPING WEB 153 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM its conduct was proscribed by the CFAA. the by proscribed was conduct its hood that the CFAA preempts a state law tortious interference claim interference tortious law a state preempts CFAA the hood that violate the CFAA, even if the site’s terms of service prohibit that scraping. This legal legal This scraping. that prohibit service of terms site’s the if even CFAA, the violate However, significance. practical case’s the be may proposition ap- posture—an convoluted idiosyncratic, case’s The qualifications. several contains peal from a district court’s grant of a the reviewing injunction, preliminary likeli- ates it from a final judgment on the merits. The Ninth Circuit is just one appellate appellate one is just Circuit The Ninth on the merits. a final judgment ates it from most computer trespass scholars called it a “hugely jurisprudence. CFAA important” development in against against hiQ, a data analytics company that automatically (“scraped”) collected information and that LinkedIn’s copied users had uploaded to their public profiles. whether the professional networking website LinkedIn could invoke the CFAA C Y 43059-lcb_25-1 Sheet No. 85 Side A 03/17/2021 10:17:28 A 03/17/2021 85 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 85 Side B 03/17/2021 10:17:28 M K C Y

29 Notably, Notably, often argued argued often effectively effectively held eBay v. Bidder’s . 1964). 1964). . NST hiQ hiQ I

No. No. 19-1116 (U.S. June , L.

. M Bidder’s Edge Bidder’s s[es] s[es] or intermeddl[es] with a chattel in the §§ 218217, (1965) (A ORTS T OF OF ) her use impairs the chattel “as to its condition, quality, quality, condition, its to “as chattel the impairs use her

The court reasoned that denying injunctive relief to eBay eBay to relief injunctive denying that reasoned court The and ECOND (S The high-water mark of trespass to chattels remains remains chattels to trespass of mark high-water The This Section traces the history of cybertrespass actions—from common common actions—from cybertrespass of history the traces Section This , 938 F.3d at 1004. 1004. at F.3d 938 , at 1069. 1069. at

ESTATEMENT Petition Petition for Writ of Certiorari, LinkedIn Corp. v. hiQ Labs, Inc., No. 19-1116 (U.S. hiQ R 2000). Cal. (N.D. 1071–72 1058, 2d Supp. F. 100 Inc., Edge, Bidder’s v. Inc. eBay, Id. Id. The earliest cases in the “cybertrespass” genre resuscitated old common law Early scholarly responses to cybertrespass cases like Qualifications notwithstanding, this Qualifications notwithstanding, Section accepts that , a 2000 case in which eBay sued an auction aggregator site for “crawling” eBay’s eBay’s “crawling” for site aggregator auction an sued eBay which in case 2000 a , 24 25 26 27 28 29 Edge site in order to copy and display information about eBay’s auctions. Even though bandwidth, server eBay’s of amount negligible a consumed crawlers Edge’s Bidder’s a district federal court found eBay likely to succeed on its California state-law trespass to claim. chattels would invite unrestricted crawling of its site, and the aggregate effect of these nega- these of effect aggregate the and site, its of crawling unrestricted invite would tive interferences could substantially impair eBay’s computer systems. Mar. 9, 2020); Brief in Opposition, LinkedIn Corp. v. hiQ Labs, Inc. 2020). 25, possession of another” of another” possession law to an expansive CFAA and back again—and predicts a renewed invigoration of of invigoration renewed a predicts again—and back and CFAA expansive an to law concepts. law common under-theorized Origins Law Common Cyberlaw’s A. known also chattels, to trespass for claim A chattels. to trespass like action, of causes as trespass to personal property, can have several formulations. As applied to elec- is tortfeasor a pertinent: most is following the servers, computer to trespasses tronic liable for trespass to chattels if she “u eBay also asserted a claim under the CFAA, but the court did not rule on it. on not rule did the court but the CFAA, under a claim asserted also eBay

154 154 petitioned has LinkedIn finally, And issues. cyberlaw on leader a albeit jurisdiction, the Court to Supreme the review and Ninth Circuit’s decision, hiQ has responded request. Court’s at the REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM that real and personal property were poor analogues to cyberspace, and that early richment, richment, conversion, breach of contract, or breach of privacy” claims may all be available. that scraping publicly-available information does not violate the CFAA. jurispru- cyberlaw Such of era an earlier an to return a represents CFAA the of interpretation dence that favored common law causes of action. In fact, the Ninth Circuit enu- vic- as themselves view that “entities that illustrate to action of causes these merated state apply: not does CFAA the if even resort, without not are scraping data tims of law trespass to . . . chattels copyright infringement, misappropriation, unjust en- or value.” 43059-lcb_25-1 Sheet No. 85 Side B 03/17/2021 10:17:28 B 03/17/2021 85 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 86 Side A 03/17/2021 10:17:28

, , , . , the the , ’s holding holding ’s usesof oth- Bidder’s Bidder’s Edge , for example, aff’d as modified Hamidi

hiQ Against Cyberproperty Against Intel v. Hamidi v. Intel eBay v. Bidder’s Edge Bidder’s v. eBay de minimis de In 2003’s . CV997654HLHVBKX, 2003 WL CV997654HLHVBKX,WL 2003. , however, common law claims claims law common however, , r’s legally protected interest in the in the interest protected legally r’s hiQ Because Intel had not demonstrated that that demonstrated not had Intel Because f-contract claim, and that a grant of an injunction The Court clarified that that clarified Court The No. H-16-1670, 2017 WL 8794877, at *4–7 (S.D. Tex. Tex. (S.D. *4–7 at 8794877, WL 2017 H-16-1670, No.

At least until The Continuing Expansion of Cyberspace Trespass to Chattels consideredwhetherformeraIntel employee tres- had

by sending unsolicited mass mailings to Intel employees employees Intel to mass mailings unsolicited sending by At least some of these contract claims were held to raise raise to held were claims contract these of some least At The case L.J. 1485 (2007). L.J. 421 (2002); Michael A. Carrier & Greg Lastowka,Greg & Carrier A. Michael(2002); 421 L.J.

Laura Quilter, Quilter, Laura . . Other cases dismissed breach of contract suits predicated on terms terms on predicated suits contract of breach dismissed cases Other , Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238, 248, 251–52 (S.D.N.Y. 126 (S.D.N.Y. Inc., v. 251–52 Verio, Inc. F. Supp. 2d 248, 238, , Register.com, ECH ECH , DHI Grp., Inc. v. Kent, v. Inc. Grp., DHI , , Ticketmaster, Tickets.Com,v.Corp. Inc.,No T T at 301. 301. at 305–06. at 306–07. at

held that a state trespass to chattels claim requires “actual or threatened See, e.g. e.g. See, v. Eventbrite,Cvent, Inc. Va. 937F. Supp. Inc.,(E.D. 2010). 927,739 2d e.g.See, See generally 71 Intel Corp.296, 2003). v. Hamidi, P.3d(Cal. 311 Id. Id. Id. Both breach of contract and trespass to chattels claims appear in contemporary contemporary in appear claims chattels to trespass and contract of breach Both At the same time as they asserted trespass to chattels claims, websites also ERKELEY ERKELEY ERKELEY ERKELEY 35 36 37 38 30 31 32 33 34 M K were often subordinated to the CFAA in actual litigation. In LinkedIn asserted trespass to claims, chattels but and the misappropriation Ninth to the .Circuit .its . “chose[] limited analysis CFAA LinkedIn on to focus because triable issues. 2000) (finding likelihood of 2000) likelihood (finding success on breach of claim, trespass to contract claim, chattels and CFAA claim, and finding injunction Register.com, Inc. warranted v. Verio, for Inc., breach 356 F.3d of 393, plaintiff was 432 not likely contract), to succeed on (2d breach-o Cir. 2004) (Leval, J.) error). clear (finding constituted harm irreparable thaton based 7,*1 (C.D. 21406289,Cal. Mar. 2003). at California California Supreme Court disavowed the broadest interpretation of Hamidi or to possesso the property injury to personal the property.” personal 2021] 2021] rights. overbroad proprietors website gave decisions SCRAPING WEB 155 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

cybertrespasscomplaints well.as cannot be interpreted to state that California law treats even even treats law California that state to interpreted be cannot ers’ bandwidth as trespass to chattels. 22 B 22 diminished the viability of trespass to chattels claims and may have inspired greater greater inspired have and may claims to chattels trespass of the viability diminished claims. CFAA on reliance the record did not support summary judgment in Intel’s favor. in Intel’s judgment summary the not did record support of service on the grounds that “browsewrap” terms did not create enforceable contracts. passed upon Intel’s servers servers Intel’s passed upon accounts. email company used who system,” computer its of use the from loss measurable “some caused emails Hamidi’s brought breach of contract actions against defendants who used automated technol- automated used who defendants against actions contract of breach brought ogies to crawl sites. their Apr. 21, 2017) (examining trespass to chattels, CFAA, and breach of contract claims). 2017) trespass(examining and Apr. breach 21, chattels, CFAA, of contract to 17 B 17 C Y 43059-lcb_25-1 Sheet No. 86 Side A 03/17/2021 10:17:28 A 03/17/2021 86 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 86 Side B 03/17/2021 10:17:28

M K L.

C Y , the hiQ , 63 S.C. and and

Bidder’s Bidder’s Edge What What Does CFAA Mean and Why (Jan. 15, 2013, 8:25 PM), https:// The CFAA also contains a civil provi- civil a contains also CFAA The By its terms, this private right of action action of right private this terms, its By e secrets, nor that it was protected by rea- , https://www.kilpatricktownsend.com/~/media/ iffs might otherwise be confined to state As the CFAA developed into the foremost foremost the into developed CFAA the As AA madeit “a felony to breach a contract.” Shawn Shawn E. Tuma, “ The Computer Fraud and Abuse Act: An Underutilized REDDIT REDDIT OWNSEND see also T The Most Hated Law on the Internet and Its Many Problems ILPATRICK ILPATRICK After several high-profile, draconian criminal prosecutions, the the prosecutions, criminal draconian high-profile, After several note 10, at 376. litigation suggests, somewhere suggests, between litigation , K supra supra —A Primer on the Computer Fraud and Abuse Act for Civil Litigators ” hiQ The CFAA fused stiff penalties to civil offenses: as Lawrence Lessig put put Lessig Lawrence as offenses: civil to penalties stiff fused The CFAA (Apr. 16, 2016), https://www.newsweek.com/most-hated-law-internet-and-its- CFAA claims may permit recovery for substantially the same conduct as Audra Audra Dial & Daniel G. Schulof, Grant Burningham, Lawrence Lessig (@lessig), hiQ Labs, Inc. v. LinkedIn Corp.,995 2019). 985,hiQ 938 (9th v. Cir. LinkedIn F.3dInc. Labs, 181030(a)(2)(C) § (2018). U.S.C. § 1030(g). Sellars, 28 U.S.C. § 1331 (2018); Andrew Sellars has cataloged three phases of CFAA jurisprudence. In the first, first, the In jurisprudence. CFAA of phases three has cataloged Sellars Andrew As As the The CFAA’s prominence can be explained by the advantages it can offer over 44 45 46 39 40 41 42 43 . 141, 160 (2011). (2011). 160 141, . EWSWEEK EV many-problems-cfaa-448567. internet.” statute gained a place in the popular imagination as “the most hated law on the Files/articles/ADial%20DSchulof%20Technology%20Litigation%20Desk%20Reference_The %20Computer%20Fraud%20and%20Abuse%20Act.ashx Jan. 27, 2021). (last visited it in a pithy online comment, the CF comment, online pithy a it in sion that permits sion “[a]ny who permits damage suffers that person or loss by reason of a violation action. civil a maintain to section” of this Litigation Weapon N courts interpreted the CFAA expansively, and found violations when plaintiffs could could plaintiffs when violations found and expansively, CFAA the interpreted courts does not extend to every nominal CFAA violation, but its limitations—such as a satisfy. to easy typically damages—are in $5,000 of minimum R www.reddit.com/r/technology/comments/16njr9/im_rep_zoe_lofgren_im_introducing_aarons_ law_to/c7xmx6j/. 156 156 a defense based on the .” . . . CFAA REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM cybertrespass law, common law claims took on a more marginal role. role. marginal a more on took claims law common law, cybertrespass CFAA Burgeoning The B. CFAA displaced common law claims as the premier cybertrespass cause of action. with- computer a access[ing] “intentionally criminalizes CFAA the part, pertinent In out access, . . authorization authorized or . exceed[ing] and in- obtain[ing] thereby computer.” from formation any protected Should I Care? coterminous state-law claims. It is a federal statute, so it gives rise to federal question question federal to rise gives it so statute, federal a is It claims. state-law coterminous jurisdiction in situations where plaint court. trade trade secret to plaintiffs claims, without that requiring any demonstrate misappro- as trad is information protectable priated measures. sonable 43059-lcb_25-1 Sheet No. 86 Side B 03/17/2021 10:17:28 B 03/17/2021 86 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 87 Side A 03/17/2021 10:17:28 , 140 140 ,

marks a This rev- This Generally Generally hiQ

cert.granted are not identical. identical. not are accessible information, use of use Van Van Buren and and depends depends on the scope of the CFAA’s hiQ narrows the CFAA’s scope within the

chnical chnical or a contractual prohibition on ac- hiQ

Van Buren

decision, issued after Sellars published his CFAA sur- CFAA his published Sellars after issued decision, , a police officer’s appeal of a CFAA conviction for using using for conviction a CFAA of appeal officer’s police a , hiQ concerns an authorized individual’s use ofa private database information and restrictions on Finally, Sellars suggests a third phase of CFAA caselaw, in which note 10, at 379.

accessto concerns access to generallyavailable information for proscribedpur- supra supra Van Buren Van hiQ hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 999 (9th Cir. 2019) (“The pivotal United States v. Van Buren, 940 F.3d 1192, 1208 (11th Cir. 2019), Cir. (11th 1208 1192, F.3d 940 Buren, Van v. States United at 379.at Sandvig v. Sessions, 315 F. Supp. 3d 1, 22 n.9 (D.D.C. 2018) (listing cases). 315 221, v. Sessions, 2018) (D.D.C. (listing Sandvig 3d n.9 F. Supp. at 379–80. 379–80. at 380. at 1002. at

Use restrictions are terms that restrict how otherwise accessible data may or Id. Id. Id. See Id. See See Sellars, Sellars, Id. In the second, courts began to narrow the CFAA by differentiating between between In the courts began by second, to differentiating the narrow CFAA The Ninth Circuit’s Circuit’s Ninth The The Supreme Court may soon clarify some issues of CFAA interpretation in 49 50 51 52 53 54 55 47 48 M K scraping and useofLinkedIn’sscrapingand datawas ‘without authorization’ within ofthethe CFAA meaning and thus a violation of the statute.”). departure from the revocation theory. theory. revocation the from departure Law?) Common Waxing the (and CFAA Waning The C. speaking, access restrictions are technical measures that limit access to authenticated authenticated to access limit that measures technical are restrictions access speaking, users. used. be not may S. Ct. 2667 (2020). 2667 Ct. S. CFAA question here is whether once hiQ received LinkedIn’s cease-and-desist letter, any further and permitting CFAA actions to enforce the former but not the latter. not but former the to enforce actions CFAA permitting and

2021] 2021] show that a scraper violated either a te cess. SCRAPING WEB 157 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM Ninth Ninth Circuit and may widen the split between CFAA. circuits’ interpretations of the ocation ocation would typically take the form of a cease-and-desist letter. vey, seems to narrow the CFAA’s theory. “revocation” LinkedIn had issued hiQ a access subsequent hiQ’s that entail not did alone fact that but letter, cease-and-desist acces- publicly remained scraped hiQ data the because authorization,” “without was sible to anyone browsing the web. poses, while while poses, Legally, purpose. for an improper Van Buren v. United States United v. Buren Van a police database for improper purposes. Factually, courts have expanded the statute somewhat to include cases in which cases to a has somewhat include website courts the have statute expanded a restriction. use access partyto inenforce order to a revoked particular restrictions on restrictions C Y 43059-lcb_25-1 Sheet No. 87 Side A 03/17/2021 10:17:28 A 03/17/2021 87 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 87 Side B 03/17/2021 10:17:28 M K C Y In- Hal- But see id. id. see But

The Supreme Supreme The erty erty interests. focuses on the prohibi- presents, there is reason hiQ hiQ hiQ Manhattan Community Access Access Community Manhattan it keeps easy cases it easy.”).keeps easy analysis analysis on prop , a 2018 decision about government By contrast, just two years before before years two just By contrast, ; or it may wait for another vehicle en- rmission to do so, hiQ has ‘accesse[d] a computer rmission ‘accesse[d] to so, has a do hiQ computer hiQ Florida Florida v. Jardines, 569 U.S. 1, 11 (2013) (“One virtue of , 938 F.3d 985 (9th Cir. 2019) (“The key question regarding question key (“The 2019) Cir. (9th 985 F.3d 938 , -rights baseline is that baseline -rights as its opportunity to resolve the cybertrespass issues that that issues cybertrespass the resolve to opportunity its as see also held that a private entity was not a state actor when it oper- when a state actor not was entity private a that held

majority’s basis for rejecting an argument that the public access Carpenter v. United States Van Buren Buren Van aff’d and remanded and aff’d under law.”); law.”); under at 1205, 1207; hiQ Labs, Inc. v. LinkedIn Corp., 273 F. Supp. 3d 1099, 1108 1108 1099, 3d Supp. F. 273 Corp., LinkedIn v. Inc. Labs, hiQ 1207; 1205, at extensively cited Justice Thomas’s concurrence in a 1996 case, which Halleck Halleck id. An even more recent Supreme Court case, case, Court Supreme recent more even An

yours ManhattanCmty. Access Corp. v. Halleck,139 S. Ct. 1921, 1933–34 (2019). v. North137Packingham Carolina, (2017). 1737 Ct. S. 1730, Denver Area Inc. Educ. v. Consortium, Telecomm. F.C.C., 518 U.S. 727, 828 (1996) See Carpenter v. United States, 138 S. Ct. 2206, 2267–68 (2018) (Gorsuch, J., dissenting) Halleck There There is reason to anticipate formalistic developments in cybertrespass juris- presents; presents; it in may grant certiorari 58 59 60 56 57 , a majority opinion by Justice Kennedy had intimated a more functional con- (“[T]he traditional approach [in Fourth Amendment jurisprudence] asked if a house, paper or effect was (Thomas, J., concurring) (“Our public government has forum held at cases least some have formal easement involved or other government to property treat property the property as its interest own in designating thepermitting in property as a publicthe forum.”). which the channels were a public forum was that “the City does not possess a formal easement easement formal a possess not does City “the that was forum public a were channels deed, deed, the Court may take take may Court hiQ 158 158 prohibition on “exceed[ing] authorized access,” while tion against “access[ing] a computer without . . . .” authorization REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM predicated predicated a First Amendment public-forum Corporation v. Halleck v. Corporation that assertion majority’s on part in the based access public channels, ated television property. private purely were the channels leck ception of the First Amendment’s operation online mod- when the in it listening suggested and that “speaking to using amounted sites media social privately-owned square.” ern public the applicability of the CFAA in this case is whether, by continuing to access public profiles LinkedIn has after explicitly revoked pe LinkedIn CFAA.”). the of meaning the within authorization’ without the Fourth Amendment’s property Amendment’s the Fourth themselves channels the whether is rather, question, key (“The dissenting) J., (Sotomayor, 1941 at (N.D. Cal. 2017), 2017), Cal. (N.D. such’s dissent in jurispru- Amendment Fourth a to return a advocated records, phone cell of searches dence predicated on property interests rather than on reasonable expectations of privacy. tirely. tirely. If and when the Court does the consider issues to think that its will reassert the of resolution law common importance traditional forms. around jurisprudence its to begun center has Court Supreme the because prudence Gor- Justice example, For areas. matter subject various in categories property formal are purely private property.”). are property.”). purely private 43059-lcb_25-1 Sheet No. 87 Side B 03/17/2021 10:17:28 B 03/17/2021 87 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 88 Side A 03/17/2021 10:17:28

.” . 231, 243 243 231, . EV R

W. 282, 288–89 (2019). 288–89 282,

. . AL EV R

L. throws intoquestion.”

. , 49 C 49 , ARV Harvard Law Review Law Harvard Halleck 133 H 133

In response, a commentator observed observed commentator a response, In graphs graphs provide good reason to believe State trial and appellate courts held that that held courts appellate and trial State r, when, and how the Supreme Court will will Court Supreme the how and when, r, Battle for the Disclosure Tort Disclosure the for Battle but in 1902, the New York Court of Appeals re- Appeals of Court York New the 1902, in but In “starkly formalist” reasoning, the Court rejected rejected Court the reasoning, formalist” “starkly In note 16, at 883–84. 883–84. at 16, note So she sued the flour company on a tort claim unprece- claim tort a on company flour the sued she So supra CAN AND SHOULD HELP US US HELP SHOULD AND CAN note 16, at 213. 213. at 16, note supra could support a new property-based orientation to the state action action state the to orientation property-based new a support could , 64 N.E. at 448. 448. at N.E. 64 , , 139 S. Ct. at 1933. 1933. at Ct. S. 139 , 444;JaredA.Wilkerson,

at Halleck Halleck Halleck, v. Corp. Access Community Manhattan Boxv. Rochester Roberson Co., Folding 64 1902). 442442, N.E.(N.Y. Roberson v. Rochester Folding Box Co., 71 N.Y.S. 876, 877–78 (App. Div. 1901); Warren & Brandeis, Roberson Id. When Abigail Roberson discovered When Roberson that discovered photograph Abigail her had been used in ap- This Article cannot anticipate whethe anticipate cannot Article This Warren and Brandeis’s article had distilled a right to privacy by synthesizing 61 62 63 64 65 66 67 M K III. WARREN AND BRANDEIS ALL OVER AGAIN: WHY COMMON LAW LAW COMMON WHY AGAIN: OVER ALL BRANDEIS AND WARREN III. versed the judgments below. requirement of forum analysis . . . . Because the Internet property analysis is so awk- so is analysis property Internet the Because . . . . analysis forum of requirement that practice it—a avoided have courts lower ward, Ms. Roberson stated a claim, Warren & Brandeis, (2012). her into nervous shock. proximately 25,000 advertisements for a flour company without her consent, it sent sent it consent, her without company flour a for advertisements 25,000 proximately then scholars should provide then the provide scholars should with justices formal the reason- most appropriate ing. Section III likens the current moment to the turn of the twentieth century, when courts struggled to bend property and contract doctrines to protect privacy law can from jurists successes andinterests. failures learn of Common the privacy’s day. present the in relief effective and principled plaintiffs offer to order in nascence interpret interpret the CFAA. But the preceding para law— common the from concepts formal on rely will interpretation Court’s the that concepts that jurists law, have for cybertrespass decades articulate avoided to transposing forms to law the common on Internet. If rely will it is justices the that likely

2021] 2021] channels.” those in interest property other or SCRAPING WEB 159 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM the right to privacy set forth in “a clever article in the article clever “a in forth set privacy the right to two lines of jurisprudence that nineteenth-century English jurists invoked to protect protect to invoked jurists English nineteenth-century that jurisprudence of lines two privacy interests: property and contract law. The first line of decisions protected information on the grounds that its in originated disclosure an interference with a property right. The second repudiated Brandeis category and Warren enjoined contracts. implied offensive or express disclosures of breach because a from they arose that that the decision reasserts the primacy of property analysis in cyberlaw jurisprudence: “ dented in New York common law: a theory propounded ten years earlier by Warren Warren by earlier years ten propounded theory a law: common York New in dented to the privacy. right called and Brandeis C Y 43059-lcb_25-1 Sheet No. 88 Side A 03/17/2021 10:17:28 A 03/17/2021 88 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 88 Side B 03/17/2021 10:17:28 M K C Y pro- , a case really really claims deriving from from deriving claims Prince Prince Albert v. Strange in rem Prince Albert v. Strange Albert Prince The presiding chancellor empha- chancellor presiding The was that the defendant had returned the the returned had defendant the that was Gee 64 Eng. Rep. 293, 293 (Ch). 64Eng. Rep.293 293, (Ch).

But even as Warren and Brandeis endeavored to to endeavored Brandeis and Warren as even But letters that the plaintiff had sent to the defendant. Part of the the of Part defendant. the to sent had plaintiff the that letters note 16, at 205. 205. at 16, note property as to entitle the Plaintiff to the preventive remedy remedy preventive the to Plaintiff the entitle to as property supra illustrate how courts should, and should not, respond to to respond not, should and should, courts how illustrate Warren and Brandeis invoke invoke Brandeis and Warren , for example, used a property rationale to sustain an injunction against Warren and Brandeis observed that that observed Brandeis and Warren at 293–94.at Prince Albert v. Strange (1849) at 313.at Warren & Brandeis, Gee v. Pritchard See See id. Id. The defendants in the case apparently had obtained copies of the etchings etchings the of copies obtained had apparently case the in defendants The This This Section observes that the thicket of common law that Warren and In the late 1800s—and arguably today—property doctrine remained the most most the remained doctrine today—property arguably 1800s—and late In the 68 69 70 71 72 The The Right to Privacy Brandeis Brandeis surveyed the resembles thicket of and property relational claims that web begun already have users Internet aggrieved fact, In today. engender might scraping complaints plaintiffs’ These Clearview. against claims law common tenuous assert to inadvert- perhaps and, theories quasi-contractual and theories property both invoke ently, illustrate the shortcomings of either framework asserted alone. This Section [the author] . .. the defendant, if he previously had it, has renounced the right of publication.” sized the plaintiffs’ “entitle[ment] to decide whether, and when, and how, and for defendant’s the that held and of” use made be shall property their advantage, whose such “affects publication of an injunction.” publishing copies of compromising chancellor’s basis for sustaining the injunction in original letters to the plaintiff: when “the Defendant having so much of property in these letters as belongs to the receiver, and of interest in them as possessor, thinks proper to return them to that enjoined the publication thatof a the catalog enjoined createddescribingpublication etchings by Al- Prince bert. surreptitiously, without the Prince’s consent. glosses the history of both the property and the contractual approaches to asserting asserting approaches to the contractual and ofthe property glosses both the history privacy claims and explains the ways in which recent Clearview-related pleadings synthesize a new cause of action from existing legal forms, some courts resisted pri- forms, some courts resisted legal from existing synthesizea of action new cause relief. for claims plaintiffs’ vacy

160 160 the formal distinction: in both lines of jurisprudence, what courts were tecting was a privacy interest. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM Gee v. Pritchard 36 679670, (1818) Eng. Rep. (Ch). draw on both approaches. Finally, it concludes that common law courts’ responses responses law courts’ common that it concludes Finally, approaches. on both draw to Clearview. against redress seek who plaintiffs Property From Privacy A. tual property claims that reserved to an author the right of first publication of infor- of publication first of right the author an to reserved that claims property tual mation he authored. intuitively intuitively appealing mechanism for asserting privacy interests. The jurisprudence between oscillated that surveyed and Warren Brandeis intellec- law common and print, or manuscript particular a of misappropriation the 43059-lcb_25-1 Sheet No. 88 Side B 03/17/2021 10:17:28 B 03/17/2021 88 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 89 Side A 03/17/2021 10:17:28

enjoined a med- enjoined of those etchings. those of that should be subject res Abernethy description description tual tual property to control factual

rough a “class-action copyright lawsuit” lawsuit” copyright a “class-action rough Tim Wu suggested in a tweet that users users that tweet a in suggested Wu Tim (Jan. 18, 2020, 8:26 AM), https://twitter.com/ plaintiffs are already asserting property claims claims property asserting already are plaintiffs WITTER , an case. 1825 chancery note 16, at 202. 202. at 16, note Instead, the chancellor granted an injunction onthe basis supra was not formally a property case: the chancellor refused to to refused chancellor the case: property a formally not was Asserting personal or intellec or personal Asserting paper.”

, Moore v. Regents of Univ. of California, 793 P.2d 479, 488–93 (Cal. 1990) Abernethy at 204.at Abernethy v. Hutchinson Warren & Brandeis, Id. See, e.g. 8,at AI,Hall v. Clearview Complaint Inc., No. 20-cv-008462020). 5, Ill. (N.D. Feb. Tim Wu (@superwuster), T (1825) 47 (Ch). Rep.Eng. 1316 Abernethy 1313, v. Hutchinson Perhaps because biometric information seems like a Not all the cases that Warren and Brandeis cited bootstrapped a privacy right right a privacy Not all cited bootstrapped and the that Brandeis cases Warren 73 74 75 76 77 78 M K sumed control over the . . .” . property fiable, fiable, personal . . . . property Clearview and CDW, without authorization, as- ers and information, including but not limited to their facial geometries, are identi- are geometries, facial their to limited not but including information, and ers dent is information information extracted, non-rivalrously, from a digital photograph looks a lot like pleading a interest property to enjoin a description of one’s etchings or private letters. And finding against Clearview on a conversion or copyright claim would be claim. property a on Albert Prince for finding as as strained just Contract From Privacy B. against One Clearview. . . . suit alleges biometric identifi- “Plaintiff[’s] conversion: superwuster/status/1218524978225741824. of an implied contract between the audience and the lecturer, by which the attendees attendees the which by lecturer, the and audience the between contract implied an of From From this holding, Warren and Brandeis extrapolated a solicitude for privacy be- that asserted have courts the “Although rights: property of protection the just yond there yet property, to protection of grounds narrow the on decisions their rested they doctrine.” liberal more a of are recognitions to the dominion of its originator, 2021] 2021] stretched the intellectual property rationale by enjoining not the reproduction of summary a of publication the rather but etchings, the SCRAPING WEB 161 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

from from a formal property A interest. second line of plaintiffs’ vindicated precedents control over certain forms of information—or prece- of line information this of Representative law. contract from forms obtained deploying means—by by certain ical journal from publishing lectures that the plaintiff had delivered portantly, orally. Im- . . . and language in sentiments property “a held Dr. Abernethy whether determine on deposited not should assert intellectual property claims th claims property intellectual assert should against Clearview. (discussing, and rejecting, a plaintiff’s claim for conversion against medical researchers who used the develop commercial to permission plaintiff’s pharmaceuticals).cells excised spleen without C Y 43059-lcb_25-1 Sheet No. 89 Side A 03/17/2021 10:17:28 A 03/17/2021 89 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 89 Side B 03/17/2021 10:17:28 M K C Y

Before returning returning Before third party.” third

Pollard Pollard v. Photographic Although hedid not deter- Murray hired Heath to en- to Heath hired Murray , property interests were not Further, the court dismissed the

a contemporary English statutepro- Accordingly,the chancellorenjoined Abernethy like the present-day American rule that concerned a photographer who displayed displayed who photographer a concerned As in in As , further clarifies the distinction inva-between Insteadof these statutoryor commonlaw prop- Pollard Pollard plaintiffs had a statutory entitlement to copyright in in copyright to entitlement a statutory had plaintiffs Pollard Murray v. Heath held that piracy prohibi- had held notdefendant the statutory violated , Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444, 454–55 (S.D.N.Y. 2005) 2005) (S.D.N.Y. 454–55 444, 2d Supp. F. 377 Co., Brewing Coors v. Mannion , , 40 Ch D at 346. 346. at D Ch 40 , While the the While at 1318.at , a case that bears some resemblance to the facts of the Clearview fracas at 985. 985. at 988. 985–86, at 988. at

Murray

Murray v. Heath (1831) 109 Eng. Rep. 984, 986 (KB). Rep. 986 v. Murray Heath 984, (1831)(KB). Eng. 109 Id. Id. Id. Id. Id. (1888)Co. 345 Pollard 40 345, v. Photographic (Ch). D Ch See,e.g. Fine & Act Arts 68.261862,Copyright 25 c. Vict. Pollard Id. Id. An 1831 case, Finally, Finally, in 1888, the English chancery court decided 82 83 84 85 86 87 88 89 90 79 80 81 the photograph at issue, they had not registered that copyright and the defendant’s the and defendant’s copyright at had issue, that the they not registered photograph scope. Act’s the of out therefore was conduct erty erty actions, the lords of the King’s Bench suggested in dicta that the proper cause contract. of breach been have would action of (discussing interests in photographers’ copyright photographs). tions because the engraving itself was authorized. was itself engraving the because tions vided vided that in copyright a portrait vested in photographic the person who commissioned it. mine whether the plaintiff could also assert a breach-of-contract claim against the third-party publisher, the chancellor concluded that the plaintiff could enjoin the the of part the on contract of breach a been had there “if lectures: the of publication pupil who and these heard lectures, if the could pupil not for publish profit, to do a in fraud a call Court would this what be certainly so would sions of a property interest and breaches of contract. which drawings, Heath created. grave plates Murray’s depicting

plaintiff’s trover action, on the grounds that the proofs in question were the property property the were question in proofs the that grounds the on action, trover plaintiff’s plaintiff. the not defendant, the of 162 162 profit. for lectures the publish to not agreed implicitly REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM proofs for himself. The plaintiff sued under a copyright statute and for common law law common for and statute copyright a under sued plaintiff The himself. for proofs trover. the plates to Murray, Heath made impressions using the plates and kept some of the the of some kept and plates the using impressions made Heath Murray, to plates the the basis for the chancellor’s decision. Un default, by photographers to copyright grants plaintiff plaintiff herself had commissioned. Company later. years hundred one over well of of the which a the and plaintiff, an photograph reproduction sold unauthorized 43059-lcb_25-1 Sheet No. 89 Side B 03/17/2021 10:17:28 B 03/17/2021 89 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 90 Side A 03/17/2021 10:17:28 It declined to rec- These claims better reflect the nature nature the reflect better claims These d not act wrongfully by appropriating pro- appropriating by wrongfully act not d granted an injunction against a defendant who who defendant against a an injunction granted As with the property cases, Warren and Brandeis Brandeis and Warren cases, property the with As , a law court had come to substantially the same at 22.

Severalothers assertquasi-contract claimsfor Clear- Tuck . note 16, at 210. 210. at 16, note

Pollard note 5, supra

supra supra , Tuck v. Priester v. Tuck Mutnick distinguished between the “protection against the world in general” general” in world the against “protection the between distinguished breach breach of faith by violating terms of service and social norms common at 351.at 353.at The year before before year The Id. Id. v. Priester Sons Tuck 19 & (1887)QBD (QB). 629 Warren & Brandeis, FAC, Complaint at 26, Burke v. Clearview AI, Inc., No. 20-cv-00370-BAS-MSB (S.D. Cal. Boxv. Rochester Roberson Co., Folding 64 1902). 444442, N.E.(N.Y. When New York’s highest court decided Abigail Roberson’s privacy suit, the Pollard Unsurprisingly, Unsurprisingly, plaintiffs have also deployed contractual theories in suits 91 92 93 94 95 96 97 M K relational relational (S.D.N.Y. Mar. 13, 2020). 2020). 13, Mar. (S.D.N.Y. Feb. 27, 2020); Complaint at 15–16, Broccolino v. Clearview AI, Inc., No. 20-cv-02222 view’s view’s unjust enrichment at users’ expense. that a statutory copyright would have afforded the plaintiffs and their common law law common their and plaintiffs the afforded have would copyright statutory a that right of action against the defendant for his “breach faith.” of contract and breach of of the plaintiffs’ grievances. Clearview di Clearview grievances. plaintiffs’ the of it committed Rather, exclude. to right a generalized subject to information prietary a consent. without data biometric users’ collect to parties all to Can Do Courts Law Common C. What majority reasserted the rigid legal forms that Warren and Brandeis had sought to synthesize. The to court held fast the dignitary does not maxim that equity protect interest. to a or contract no with property connection injuries against against Clearview. One complaint alleges that Clearview “knowingly and illicitly they which to websites and platforms the with contracts . . . Plaintiff’s in interfered photographs.” their entrusted left him liable for an injunction. an for liable him left implying of process “This precedent: of line contractual the of reading realist a take a term in a is . . . contract nothing more nor less of than recognition the a demand convenience judicial general and declaration justice, private that morality, public such a rule, and that the publication under similar circumstances would be consid- abuse.” intolerable an ered 2021] 2021] in term an implied his that breached his on the conduct grounds the photographer with Pollard. contract SCRAPING WEB in conclusion had made unauthorized reproductions of a watercolor that the plaintiffs had con- tracted with him to print. “Whether the plaintiffs had any copyright or not,” the defendant committed a “gross breach of contract and a gross breach of faith” that 163 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

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M K C Y Roberson majority, Prince Al- Prince Roberson Publishing a Woman’sPublishing a observed that the

. 1, 11 (1895). . 1,11 (1895). Lohan v. Take-Two Interactive Interactive Take-Two v. Lohan Times EV

see also seems to represent a vibrant polit- vibrant a represent to seems The New York state legislature re- legislature state York New The New York , 3 N.W. Roberson Roberson can stand for baleful judicial narrow-minded- judicial baleful for stand can , faced with similar facts, the Georgia Supreme Court Court Supreme Georgia the facts, similar with faced , Right to Privacy Roberson Roberson § 50 (McKinney 1909); FollowingHadley, the New YorkCourt ofAppeals seized AW In this respect, L Roberson decision was controversial. decision opinion tracked a rebuttal to Warren and Brandeis’s famous ar- famous Brandeis’s and Warren to rebuttal a tracked opinion IGHTS IGHTS , July 13, 1902, at 8. 8. at 1902, 13, , July R , “[t]he word privacy, as used in those decisions, is always in con-

, 64 N.E. at 445. 445. at N.E. 64 , IV courttook those forms atface value and held that Ms.Roberson failed IMES

Roberson Roberson Roberson

Pollard Roberson A contemporary letter to the editor of the N.Y. ). ). Id. Herbert Spencer Hadley, , N.Y. The Just as easily, however, however, as easily, Just [W]e think the conclusion reached by theof reached by result an conclusion was [W]e them think the unconscious yielding tothe feeling of conservatism which naturally arises in the mind aof judge who faces a proposition which is novel. The valuable influence upon society and upon the welfare of the public of the conservatism of the lawyer, con- this but overestimated; be cannot bench, the upon or bar the at whether servatism should not go to the extent of refusing to recognize a right which In not one of these cases . . . was it the basis of the decision that the defendant defendant the that decision the of basis the it was cases . . . these of one not In could be restrained from performing the act he was doing or threatening to do on the ground that the feelings of the plaintiff would be thereby injured; but, on could the court the contrary, which . . . each right property decision a had was plaintiff rested that or either trust, of upon breach the ground of protect. The and 98 99 100 101 102 ticle ticle that Herbert Hadley published in 1895. In it, Hadley distinguished the cases that Warren cited. and On reading Brandeis like of Hadley’s precedents bert nection with property and it is the ‘privacy of property,’ not the right to privacy, protects.” equity which the Georgia Supreme Court wrote: wrote: Court Supreme the Georgia Software, Software, Inc., 31 N.E.3d 111, 119 (N.Y. 2018) Roberson (describing the statute as a “response” to Lawyer, Country A grave.” his in turn Coke . . . “Lord made have must case 164 164 ognize a freestanding right to privacy that would have afforded Ms. Roberson in- likeness. her of use unauthorized the for relief junctive REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM ture responded to the resulting public outcry. outcry. public resulting the to responded ture to satisfy them: them: to satisfy ical process. A from and refrained law court prudently common activism, a legisla- on the same forms—indeed, the very same cases—that Warren and Brandeis docu- Brandeis and Warren cases—that same very the forms—indeed, same the on The mented. ness. Three years after years Three ness. the in justices the Of privacy. to right law common a recognized acted to the court’s denial of common law privacy rights by establishing a statutory a statutory establishing by rights privacy law common of denial court’s to the acted 1909. in right privacy Picture 43059-lcb_25-1 Sheet No. 90 Side B 03/17/2021 10:17:28 B 03/17/2021 90 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 91 Side A 03/17/2021 10:17:28 (2008). era. era. It is unlikely et seq. . 14/1 14/1 . Roberson Roberson TAT S

. OMP C

LL as a story of well-functioning governance, and we we and governance, well-functioning of story a as

Of those states, Illinois is the only one that affords a col- affords that one the only is Illinois states, Of those court knew court that its would not legislature redress the harms

Roberson The Cyberlaw Podcast: Will the First Amendment Kill Free Speech in 64 N.E. at 443 (“The legislative body could very well interfere and

, (Mar. 5, 2020, 5:05 PM), https://www.lawfareblog.com/cyberlaw-podcast- PM), 5:05 2020, 5, (Mar. Roberson Roberson , Section IV.C.1 (discussing state biometric privacy statutes). privacy biometric IV.C.1 Section state (discussing , Just four state legislatures have passed laws that might regulate the the regulate might that laws passed have legislatures state four Just

AWFARE

, L See Roberson Stewart Baker, See infra Information Biometric Privacy Act, 740 I Pavesich v. New Eng. Life Ins. Co., 50 S.E.68, 78 (Ga. 1905). Id. But present-day governance may not resemble the So, if the the instincts of nature prove to exist, and which nothing in judicial decision, or legal upon history, writings the law can be to called its non- demonstrate right. as a legal existence Like Like Abigail Roberson, enterprising Internet users are already asserting un- 105 106 107 108 103 104 M K “the “the big . . . platforms have just been scared off [from offering facial recognition services] by the toxification of facial recognition,” rather than through legislative moratoria. that that a federal or modern-day would state legislature respond so nimbly to a redress private a afford would response legislative a that still unlikelier and outrage, privacy noted, has commentator one As interest. privacy novel a of out arising action of right will-first-amendment-kill-free-speech-america. will-first-amendment-kill-free-speech-america. trust our government to function just as effectively today, this seems like exactly the the exactly like seems this today, effectively as just function to government our trust right outcome. In dismissing these claims, a court might note the popular opprobrium Clearview’s alleged conduct has attracted and implore the legislature to in- redress. plaintiffs deserving to give tervene arbitrarily provide that no one be should his permitted for own selfish purpose to use picture the or the name of another for advertising purposes without his consent. . . . The courts, however, America? 2021] 2021] they when cited courts earlier that formalism “strain[ed]” the to clinging of Instead Geor- case—the Roberson’s sunk which privacy”—and of right the protected “really gia Supreme Court recognized the right to privacy that SCRAPING WEB the New York rejected. had Appeals Court of 165 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM Roberson Roberson alleged, what could it have done to recognize Roberson’s claim without technology specifically. technology orable private right of action for nonconsensual collection and use of facial recogni- facial of use and collection nonconsensual for action of right private orable data. tion these plaintiffs’ complaints have blended creative property and contract theories and in contract property theories blended have creative these complaints plaintiffs’ pleaded, As information. recognition facial their in rights novel assert to attempt an motion a surviving of chance little stand Clearview against claims imaginative these to dismiss. If we take tested tested legal claims against Clearview. And just like Warren and Brandeis’s article, being being without authority to legislate, are required to decide cases necessarily upon principle, and embarrassed so are by precedents application of an old principle.”). created by an extreme, and therefore unjustifiable, C Y 43059-lcb_25-1 Sheet No. 91 Side A 03/17/2021 10:17:28 A 03/17/2021 91 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 91 Side B 03/17/2021 10:17:28 M K C Y , 97 , 110 desirable desirable Legal re- Legal . 640, 644 TheCritical EV Principle R

. whether an instrument ARV an independently Thomas W. Merrill & Henry d. And when a chancellor finds chancellor a when And d. This Article accepts as its its as accepts Article This , 29 H Numerus Numerus Clausus Cf. ridical relationships “are intelligible by es es a narrow tort that users of Internet common common law landscape should proceed erty, erty, contract, and their associated subspe- hiQ . 561, 565 (1983). My usage is also consonant with EV ” will obviously dictate the rights and duties of the partiesthe of duties and rights the dictate will ” obviously R Legal Formalism: On the Immanent Rationality of Law

lely as the translation into law of . court in such a position should have and could have

contract ARV a property right, her claim foundere claim her right, property a “ Equitable Relief Against Defamation , 96 H 64 N.E. at443.

, Roscoe Roscoe Pound, Optimal Standardization in the Law of Property: The See I take this sense of “formalism” to resemble what Roberto Unger calls, “the willingness Roberson Property has a more intricate and determinate constellation of formal subspecies, in legal Formal as reasoning, I use the term, gives primacy to those forms and So far, this Article might read like a critique of “formalism.” It is not. By “for- By It is not. “formalism.” of a critique like read might Article this So far, L.J. 1, 3–4 (2000). But a contract is of course a legal form, too, albeit one that is more more is that one albeit too, form, legal a course of is contract a But (2000). 3–4 1, L.J. 111 109 110 ALE to Section IV, which argues that, while neither contract nor property alone are ad- breaching certain covenants in those platforms’ terms of service. Readers interested interested Readers in of those terms platforms’ service. certain covenants breaching thein of post-a thorough examination premise premise that a common law prem- its as accepts further It plaintiff. a such for remedy law common a recognized as position this precisely in themselves find will courts law common today’s that ise plaintiffs depicted in Clearview’s three billion images begin to petition them for relief. The question that this animates Article, then, is this: what can today’s com- the against interests privacy legitimate users’ Internet preserve to do jurists law mon ques- that to answer the in only interested Readers gridlock? legislative of backdrop tion should skip to Section V, which propos willfully by harms privacy them cause that parties third against assert may platforms a contract—or derives what Roscoe Pound prevails. might call a “formal peg”—a privacy-like claim customizable once it has been instantiated. And, crucially, decisions about ortransaction is of the form a of possessedRobersonAbigailthat found Appeals of Court York New the When instrument. that to nor right, contractual a neither equate equate to explain users’ grievances against Clearview, a contractual perspective is policy. sounder and accurate descriptively more Formalism of Defense Qualified A D. malism,” I refer to juridical reasoning that invokes legal “forms”—that is, well-de- lineated doctrinal categories, like prop cies. may typically condition legal conclusions or on absence. conclusions their maypresence legal condition typically

(1916) Gee (discussing v. Pritchard (1818) 36 Rep.(Ch)). Eng. 679 670, contrast to contract’sto more“whimsicalcontrast fanciful”or possibilities. E. Smith, Y 166 166 being by “embarrassed” the precedents that bound it? REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM alism, alism, in contrast, disregards formal labels and focuses on the substantive relief Ernest Weinrib’s contention that, to the formalist, ju to work from the institutionally defined materials of a given collective tradition and the claim to speak authoritatively within this tradition, to elaborateUnger, it fromMangabeira within Roberto in a power.” way state that of is meant, application at the affect to ultimately, least Legal Studies Movement reference to themselves and not so political purpose.” Ernest J. Weinrib, 43059-lcb_25-1 Sheet No. 91 Side B 03/17/2021 10:17:28 B 03/17/2021 91 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 92 Side A 03/17/2021 10:17:28 sub- —which is what Sec- what is —which text accompanying note note accompanying text see also supra at stake is privacy? privacy? is stake at ing those problems ing in those problems terms of formal really h step in the construction or use of a recognition does and does not implicate implicate not does and does recognition and and to provide consistent types of relief. mere formal peg on which to hang the substantial peg to formal on mere the hang substantial which Broadly speaking, theformer category comprises THAN A PROPERTY PROBLEM PROBLEM A PROPERTY THAN illuminates how to address thedispute legally the the English proto-privacy case: “[the chancellor] found a way note 110, at 644 (emphasis added); added); (emphasis 644 at 110, note

, ). supra Gee Gee Int’l News Serv. v. Associated Press, 248 U.S. 215, 236 (1918) (citing Morison v. To realists, formalists might seem benighted, or obstinately missing the the missing obstinately or benighted, seem might formalists realists, To Pound, See value of formal analysis. Legal forms help jurists to discern whether some- whether discern to jurists help forms Legal analysis. formal of value For For all this apparent of criticism Section’s formal legal the reasoning, Article’s The remedies for unauthorized scraping of publicly-accessible information That That critique of formalism may be accurate, but it risks discounting the .” L.J. 949, (1988). 957 112 113 IV. WEB SCRAPING LOOKS MORE LIKE A CONTRACTS PROBLEM PROBLEM CONTRACTS A LIKE MORE LOOKS SCRAPING WEB IV. M K ALE substrate on which those disputes unfold. Like it or not, then, legal forms permeate permeate forms legal then, not, or it Like unfold. disputes those which on substrate our of understanding Analyz legal problems. indicate to as well as substance, their of some illuminate to both helps thus interests resolution. their judicious what what makes it so difficult to pinpoint whic Cat- interests. subject’s a invade to begins database recognition facial nonconsensual facial that interests legal formal the aloging helps substantiate a theory of the harm it causes, both in doctrinal and practical terms. Section IV will inventory the formal interests at stake in the Clearview dis- and historically contingent—but so are legal disputes, and legal forms constitute the the constitute forms legal and disputes, legal are so contingent—but historically and overall is methodology formalist. After all, a paucity of formal is analysis arguably forest for the trees. Why insist on formal categories like property and contract when when contract and property like categories formal on insist Why trees. the for forest is that what knows surely involved everyone pute, pute, not because such the determines an analysis dispute’s resolu- mechanistically it because but tion, Evaluating Evaluating whether a legal realists interest upon, is build one to of forms “property” legal or Without “contract,” dispute. or given a neither, of nature the clarify helps would struggle to articulate with any precision what a given substantive dispute is “really” about. In other words, legal forms may well be contrived, indeterminate, stantive thing has gone wrong in a particular case might be conceptualized as either rights “against the world” or rights “against [a] both. or Defendant,” particular tion V then endeavors to do. do. to endeavors then tion V Y (discussing 69 Moat (1851)68 Eng. Rep. 492, 500 (Ch)). 2021] 2021] granted or denied in a particular case. Roscoe Pound gives a quintessentially realist dissection of to . . . protect[] [plaintiff’s] right of privacy by securing a right in property which had no as andvalue was property a relief SCRAPING WEB 167 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

C Y 43059-lcb_25-1 Sheet No. 92 Side A 03/17/2021 10:17:28 A 03/17/2021 92 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 92 Side B 03/17/2021 10:17:28 M K C Y This Sec- This (unpublished (unpublished L. 1, 1 (2011). (2011). 1 1, L. ORT T

and the Clearview Clearview the and , 4 J. 4 , inst Clearview for its Although a surprising a surprising Although hiQ

Data is Property ty claims aga d intellectual property interests that count may be the intangible property property intangible the be may count

However, the facts of rightlydenies users and platforms anygeneralized, hiQ Modularity and Morality in the Law of Torts of Law the in Morality and Modularity However, this Section concludes that today’s doctrine cannot cannot doctrine today’s that concludes Section this However, Abusiness’s social mediaaccounts may beassets for the purposes Christina Mulligan & James Grimmelman, Grimmelman, James & Mulligan Christina A Facebook page associated with and controlled by a government note 77. 77. note

, Order on Defendant’s Motion to Dismiss at 9, 14, PhoneDog v. Kravitz, No. supra CTLI, LLC, 528 B.R. 359, 366–67 (Bankr. S.D. Tex. 2015). 2015). Tex. S.D. (Bankr. 366–67 359, B.R. 528 LLC, CTLI, Davison v. Randall, Davison (4th Cir. 682–83 666, 9122019). F.3d Henry E. Smith, at 17. at See generally A draft manuscript by Christina Mulligan and James Grimmelmann offers a lucid Wu, See, e.g. re In See 8,at AI,Hall v. Clearview Complaint Inc., No. 20-cv-008462020). 5, Ill. (N.D. Feb. See Id. Given the potential malleability of personal property doctrine in cyberspace, it it cyberspace, in doctrine property personal of malleability potential the Given 1. Users’ Personal Property Interests Interests Property Personal Users’ 1. Whether or not a user “owns” her social media account and associated pages This This sub-Section surveys the personal an 116 117 118 119 120 121 114 115 users’ interactions with platforms may create or implicate. or may create platforms with interactions users’ of the user to whom it belongs, such that interfering with its possession may consti- may possession its with interfering that such belongs, it whom to user the of conversion. tute Instagram, Facebook, a by Clearview against filed recently suit a that unsurprising is conversion. alleges user Venmo and and should not support property and intellectual property claims by property and Internet users should and not intellectual support property Clearview. against ac media social A questions. legal contested are explanation of property interests in digital information that helped me clarify my analysis in this my analysis helped clarify that me in information digital interests of property explanation Section. 11-cv-03474-MEJ (N.D. Cal. Nov. 8, 2011); Farm Journal, Inc. v. Johnson, No. Apr. *5–6Mo. 24, at 2019). 20191795945, 00095-SRB, WL (W.D. 4:19-CV-

168 168 and rightsin in tort. comprises contract latter and the rights, property REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM of bankruptcy. of number of baseline personal property issues in cyberspace remain unresolved, plausible a the of even invasion an show not do incident Clearview the of facts reported of intellec- rules digital the elaborated has The interest. judiciary personal-property tual property more comprehensively. Indeed, some commentators have suggested that individual users assert intellectual proper activities. scraping tion argues that the law post- law the that argues tion Interests Property Users’ A. official may not be purely private property. private purely benot may official manuscript) file(on with author). property-style property-style rights to control uses of information that they publish to the open Internet. Instead, it advocates that courts adopt a “relational” or “bilateral” approach approach “bilateral” or “relational” a adopt courts that advocates it Instead, Internet. appropriate. are remedies in which cases in to remedies, 43059-lcb_25-1 Sheet No. 92 Side B 03/17/2021 10:17:28 B 03/17/2021 92 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 93 Side A 03/17/2021 10:17:28

can

prima prima facie ; rather, they Plaintiffs A user’saction . 1964). 1964). . le le personal property control NST I AW L

. M distribution of archived images of of platforms’ plausib platforms’ of § 222A (A (1965)

Conversion is also appropriate when the infor- when the appropriate also is Conversion ORTS T OF OF ) or use of any of these inchoate property interests. Scraping’s Scraping’s interests. property inchoate these of any of use or ECOND (S , Healthcare Advocates, Inc. v. Harding, 497 F. Supp. 2d 627, 650 (E.D. Pa. Section IV.B.1. IV.B.1. Section Kremen v. Cohen, 337 F.3d 1024, 1036 (9th Cir. 2003). 2003). Cir. (9th 1036 1024, F.3d 337 Cohen, v. Kremen infra infra ESTATEMENT

For a discussion, and ultimately a rejection, R Cf. Co., ThyroffIns. 2007). 1278 Mut. 8641272, N.E.2d (N.Y. Nationwide v. See, e.g. see Copyright seems like a plausible hook for Clearview’s liability to users. Scrap- But the information Clearview allegedly scraped from Facebook is not rival- 2. Users’ Copyright Interests Interests Copyright Users’ 2. IP claims do not require owners to allege deprivation of Conversion is “an intentional exercise of dominion or control over a chattel 122 123 124 125 126 M K duced are almost certainly copyright-protected. However, in both the LinkedIn and and LinkedIn the both in However, copyright-protected. certainly almost are duced claims. property intellectual colorable lack users examples, Clearview state claims for conversion when a defendant interferes with names. as domain such rivalrousproperty, intangible ing photographs nominally reproduces those photographs, which is a for trespass to personal property would fail for substantially the same reasons. reasons. the same for substantially fail would property personal to for trespass permit rights holders to assert a right to exclude some unauthorized uses of information. Described so generally, IP seems like it might give users suitable recourse against Clearview or hiQ—especially because the photographs Clearview repro- mation at issue is not necessarily rivalrous, but the defendant deprives plaintiff of its its of plaintiff deprives defendant the but rivalrous, necessarily not is issue at mation controlled. plaintiff the that data of instantiations all deleting by as such use, claims,

2007) (holding that the Copyright Act of 1976 preempted claims for conversion and trespass to and trespass conversion for claims Act of preempted 1976 the Copyright that 2007) (holding chattels predicated on defendant’s reproduction, display, and plaintiff’s website). rous, rous, and the acts of scraping did not interfere with Facebook or its users’ control over the of instantiations the information they had to uploaded Facebook. Rather, the the data with in interfering without scraping duplicated the instantia- question control lose not did the users That servers. platform’s a on placed user the that tion over the information in question is fatal to a conversion claim. Moreover, even if the unauthorized copying of a photograph did satisfy the elements of a state-law 2021] 2021] does not scraping inter- claims: property personal plausible do fracas implicate not possession the with fere with intersection personal property comes from querying servers and reproducing intangible or tangible to access or over with control interfering by not information, property. Thus, while the platforms have somewhat stronger trespass claims, users aggrieved by Clearview’s alleged conduct cannot plausibly allege an interference SCRAPING WEB interest. property a personal with 169 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM which so seriously interferes with the right of chattel.” the another of tovalue full control the other it the pay that to the required be actor justly may conversion claim, federal copyright law would preempt that claim. that preempt would law copyright federal claim, conversion C Y 43059-lcb_25-1 Sheet No. 93 Side A 03/17/2021 10:17:28 A 03/17/2021 93 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 93 Side B 03/17/2021 10:17:28

M K C Y 45, RTS A abrogated

prima facie prima J.L.

. d are un-therefore OLUM Facial recognitiondoes , 41, C

Apart from “selfie” photographs, photographs, “selfie” from Apart phs to train facial recognition programs. I programs. phs facial recognition to train authored expression, an expression, authored . A motivation to protect personal features, personal ra- . to protect A motivation ArtificialIntelligence’s Fair Use Crisis expression note 128, at 68. 68. at 128, note Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1100 (9th Cir. 1992),(9th Cir. 1100 1093,978 Frito-Lay,F.2d Inc., v. Waits Moreover, even if scraping photographs amounted to to amounted photographs if scraping even Moreover,

supra Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). (2014). 118 U.S. 572 Inc., Components, Control Static v. Inc. Int’l, Lexmark accord , Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444, 454–55 (S.D.N.Y. 2005). 2005). (S.D.N.Y. 454–55 444, 2d Supp. F. 377 Co., Brewing Coors v. Mannion , Feist Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991) (“No one Garcia v. Google, Inc., 786 F.3d 733, 745 (9th Cir. 2015). 745 2015). 733,v. Google, (9th Garcia Cir. Inc., 786 F.3d Sobel, Sobel, Midler v. Ford Motor Co., 849 F.2d 460, 462 (9th Cir. 1988) (holding that the

, rather than their See Cf. Indeed, this is how many photographs appear in popular facial recognition training Id. Cf. See, e.g. See, BenjaminL.W. Sobel, See In short, individuals aggrieved by facial recognition object to uses of their Mechanics aside, copyright doctrine itself gives rights holders little recourse Thus, it is possible to scrape photographs in a manner that does not reproduce reproduce not does that manner a in photographs scrape to possible is it Thus, 130 131 132 133 127 128 129 any copyrighted expression, by taking only the portions of a photograph that depict depict that photograph a of portions the only taking by expression, copyrighted any face. person’s a likenesses ther than authorial would expression, undermine copyright claims against entities cop- weak But so. appropriately recognition—and facial for photographs scrape that the of nature personal the plaintiffs: prospective for a blessing be may claims yright interests at stake in facial recognition diminishes the chances that copyright law action. of causes privacy-related preempt would 67–68 (2017). 67–68 (2017). Copyright is an economic right, not a privacy protection. privacy a not right, economic an is Copyright

may claim originality as to facts. This authorship.”) (internal quotations is omitted). because facts do not owe their origin to an act of datasets. voice“[a] lawbecause, bycopyright preempted not distinctiveis a appropriationvoice of tortious is not copyrightable . . . . forwardWhat is put as protectible here is personalmore than any work recognition algorithms does not implicate any copyright-protected interests. 170 170 claim copyright a But owners. copyright their of rights exclusive the of infringement would be unavailing both practically and doctrinally. Practically, it is not obvious that the party will aggrieved Copyright hold in copyrights. photo- the appropriate graphs vests, by default, in the photographer. person the than other someone be will photographs media REVIEW LAW social CLARK & LEWIS of author the then, depicted in the Thus, photograph. in a great many cases, aggrieved users will lack copyright. enforce to them allow would that interest an ownership 25.1 [Vol. of photogra against use the unauthorized facial train to photographs of reproduction incidental the that elsewhere argued have LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM not require any authorial expression to function: the algorithms learn human features, which arefacts rather than innate copyrightable. infringement, the same fair use defense that allows commercial image search engines engines search image commercial allows that defense use fair same the infringement, to proliferate should also find some AI-related reproductions to be non-infring- ing. of authorship.”), authorship.”), of onother grounds by 43059-lcb_25-1 Sheet No. 93 Side B 03/17/2021 10:17:28 B 03/17/2021 93 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 94 Side A 03/17/2021 10:17:28

court court The Ninth Ninth The republication Unlike Melt-

Meltwater Associated Press v. note 164 (discussing a Genius Media Group, Inc., Inc., Group, Media Genius infra infra Copyright does not give give not does Copyright LinkedIn did not “focus on” any any on” “focus not did LinkedIn

the factual information they post on the the on post they information factual the

In support, the Ninth Circuit cited cited Circuit Ninth the support, In , which rejected a tech company’s fair use defense for scraping ’s scraping differs from hiQ’s and Clearview’s. The ’s from hiQ’s differs and scraping Clearview’s. No. 19-CV-7279 (MKB), 2020 WL 5553639 (E.D.N.Y. Aug. 10, 2020)). 5553639 (E.D.N.Y.No.20202020)). Aug. 10, 19-CV-7279 WL (MKB),

, , 499 U.S. at 347–48. 347–48. at U.S. , 499 Ticketmaster Corp. Tickets.Com, v. Inc., No. CV997654HLHVBKX, 2003 WL at 552.at at 995. 995. at

Feist See Corp.,992 2019). 985,hiQ 938 (9th v. Cir. LinkedIn F.3dInc. Labs, Id. Id. (S.D.N.Y. 543 537, 2d Supp. F. 931 Inc., Holdings, U.S. Meltwater v. Press Associated Id. 17 U.S.C. § 301(a) (2018) (providing for the preemption of state-law rights “equivalent LinkedIn’s cease-and-desist letter to hiQ also alleged that hiQ was violating the the violating was hiQ that alleged also hiQ to letter cease-and-desist LinkedIn’s Meltwater The same considerations that make the human face uncopyrightable also make make also uncopyrightable face human the make thatconsiderations same The In short, copyright does not provide users with any generalized right to exclude exclude to right generalized any with users provide not does copyright short, In 134 135 136 137 138 139 140 M K observed that the defendant’s business model was to “republish designated segments segments designated “republish to was model business defendant’s the that observed of text from news articles, without adding any . . . commentary in material.” order copyrighted to the make of use undiluted the from directly money Digital Digital Millennium Copyright Act (DMCA).

Meltwater Meltwater Holdings copyrighted news articles and reproducing snippets of them to its subscribers, in advance. in set alerts keyword to response recent federal district court order concerning copyright preemption in copyright recent concerning federalpreemption order district court LLC v. Google 7,*4 21406289,(C.D. Cal. Mar. 2003). at 2013). See also copyright”); of scope the general within rights exclusive the any of to 2021] 2021] SCRAPING WEB 171 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM copyright-related copyright-related claims when it appealed the district court’s order. personal and professional information uncopyrightable. information professional and personal a LinkedIn user a property interest in her professional history, even if history, she in it a wrote a user her interest professional LinkedIn property user a entitle copyright does Nor appears. it which on page the and controls herself information the is which profile, her edited she how and when about facts control to analyzes. and hiQ collects able facts and outputs predictions based on its own analyses of those facts. Clearview Clearview facts. those of analyses own its on based predictions outputs and facts able in operates much the same way, but the facts may that analyzes happen Clearview information factual in takes Clearview photographs. copyrighted in embedded be to from the photographs it scrapes—the facial geometry portrayed in a information photograph, that uses photograph—and that in identified individual the with paired photographs. other in people of identity the to predict analyzing or reproducing from parties third of copyrighted materials. hiQ analyzes behavioral information to predict employees’ employees’ predict to information behavioral analyzes hiQ materials. copyrighted of uncopyright- in takes hiQ words, other In employment. other seeking of likelihood water, neither hiQ nor Clearview has a business model that centers on centers that model business a has Clearview nor hiQ neither water, may possess such claims. Circuit did not rule on any copyright or DMCA issues, but it suggested LinkedIn C Y 43059-lcb_25-1 Sheet No. 94 Side A 03/17/2021 10:17:28 A 03/17/2021 94 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 94 Side B 03/17/2021 10:17:28

M K

C Y UBLIC Private P Meltwa- technology

. 125 (1993). EV R

Moreover, the ele- . 8, 12 (2014). Michael Madow, EIMAGINED FOR A R ALIF

For its part, the California California the part, its For , 81 C , 81 ANDSLIDE RIVACY Some scholars, most notably notably most scholars, Some P

: See See generally , 6 L 6 , Comedy III Prods., Inc. v. Gary Saderup, The right is often treated by courts courts by treated often is right The see see UBLICITY ting purposes, as purposes, was ting at in issue P the whole point of facial recognition facial of point whole the IGHT OF OF IGHT R HE T

, IP in an Augmented Reality Augmented an in IP This requirement makes sense whether as aprotection of (“The right of publicity, like copyright, protects a form of intellectual of form a protects copyright, like publicity, of right (“The

§ 3344(a) (West 2020); § 2020). 3344(b) (West OTHMAN R ODE ODE at 804 at C C E.

. . id. , IV IV C C

. . Brian D. Wassom, AL AL ENNIFER ENNIFER See,e.g. J question in interest (“[T]he 1979) (Cal. 428 425, 603P.2d Pictures, Universal v. Lugosi v. Roberts,Ross 359, Rptr. 1662013). 3dApp.(Cal. 365 Cal. Ct. C See C 182 (2018). (2018). 182 Whatever Whatever the right of publicity’s proper classification is, its theory of harm is 3. Users’ Publicity Rights Rights Publicity Users’ 3. Some scholars have observed that publicity rights might provide individuals But a company that produces facial recognition technology does not exactly 143 144 145 146 147 141 142 . In contrast, Clearview allegedly scraped factual information in order to create a to create in order information factual scraped allegedly Clearview . contrast, In ORLD is one of ‘property’. . . . We agree, however, with Dean Prosser who considers a dispute over this Inc., 2001). Inc., 21(Cal. 799 797, P.3d and and litigants as a species of intellectual property. Publicity rights are statutory and/or common law rights; California recognizes both both recognizes California rights; law common and/or statutory are rights Publicity a statutory right and a common law claim.

W question ‘pointless.’”). 172 172 Internet. To the extent copyright can restrict scraping, it will cover the scraping of information for market-substitu expressive ter to cre- avoid and endeavored their users had expressly market platforms that major REVIEW LAW CLARK & LEWIS dignitary apt for regulating theoretically nor ating. doctrinally is Copyright neither scraping. web unauthorized of out arising injuries 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM Jennifer Jennifer Rothman, have disputed and this argued characterization that the right of publicity is better understood as a privacy interest. the privacy interest Abigail Roberson sought to vindicate after being recognizably recogniza- whose individual an of interest economic or the box, flour a on depicted con- draw to authorization without used being are cachet associated and likeness ble products. to sumers identifiable” individual. identifiable” ments of a right of publicity claim clarify that actionable use must be of a “readily Supreme Supreme Court has asserted that the label is “pointless,” because a right with any it. holds who individual the by monetized be basis can dissimilar from the harms privacy that Clearview may have wrought. The right fo- right it an dignitary, injuries: “protects individual’s than cuses rather on economic, to profit from the commercial value of his or her identity.” property property that society deems to have some social utility.”). Rights Publicity and Culture Popular Image: Public of Ownership with recourse against nonconsensual enrollment in facial recognition databases. invade either of these interests. Indeed, Indeed, interests. these of either invade 43059-lcb_25-1 Sheet No. 94 Side B 03/17/2021 10:17:28 B 03/17/2021 94 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 95 Side A 03/17/2021 10:17:28 a privacy a privacy is abrogated on . 1143, 1153 (2016). (2016). 1153 1143, . ctions in terms of ser- terms in ctions EV However, where infor- where However, R

L. Rather, it enables others to to others enables it Rather,

. OLUM al to attract customers. Again, essen- Again, customers. attract to al access or use restri use or access , 116 C 116 , privacy interestsnor the economicinter- This mismatch does not delegitimize anyone’s anyone’s delegitimize not does mismatch This

ing ing purloined credentials. r r both injury to feelings and economic harms under California It remains a powerful tool to discipline intrusions to to intrusions discipline to tool powerful a remains It Norms of Computer Trespass decision and Kerr’s article suggest that the CFAA should no no should CFAA the that suggest article Kerr’s and decision hiQ Section IV.C.3 (discussing unjust enrichment theory). , Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1103–04 (9th Cir. 1992), Cir. (9th 1103–04 1093, F.2d 978 Inc., Frito-Lay, v. Waits , Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) (2014) 118 U.S. 572 Inc., Components, Control Static v. Inc. Int’l, Lexmark at 1171.at Roberson Roberson v. Rochester Folding Box Co., 64 N.E. 442, 449 (N.Y. 1902) (Gray, J., See,e.g. See infra S. Kerr, Orin Id. In sum, the harm of being nonconsensually enrolled in a commercial facial Nor does facial recognition squarely implicate the economic aspects of the right right the of aspects economic the implicate squarely recognition facial does Nor The CFAA is the Internet’s “own kind of trespass“ownkindcloselyof Internet’sthat law is the TheCFAA resembles its 148 149 150 151 152 M K mation is publicly accessible but subject to to subject but accessible publicly is mation vice, both the grievances. It does, however, make the common law and statutory right of publicity publicity of right statutory and law common the make however, does, It grievances. of redress. means a tenuous Interests Property Platforms’ B. contravene computer systems clearlythat modernnorms, trespass like bypassingan authentication requirement us recognition database resembles neither the neither resembles database recognition ests that the right of encompasses. publicity Indeed, part of the outrage the Clear- bio- individuals’ that the belief to attributable probably was generated episode view metric data were not salable commodities—rather refused than to that pay a Clearview suitable price. simply dissenting). other grounds by (discussing theories of recovery fo ofright publicity). 2021] 2021] who is in are Being to individuals enrolled a not identifiable. facial identify readily recognition database does not invade someone’s privacy by making “conspicuous .” . . . places public various in likeness, her of display SCRAPING WEB 173 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

tially tially the reverse is true: customers use Clearview to whom people identify do they indi- the to injuries privacy cause reasonably may identification That recognize. not viduals identified, but the injury is unlike the through damage foregone ad revenue or through the harm reputational provoked a by being plaintiff suffers either of goods. aas hawker perceived link revealing information to one’s voluntary displays This technology. the without inaccessible have been would that mation of one’s likeness—infor- over alleged Roberson harm the from dissimilar substantively harm a is it but harm, ago. a century any does not use Clearview understood. as right is that conventionally of publicity, appe commercial established person’s particular physical-world physical-world cousin.” C Y 43059-lcb_25-1 Sheet No. 95 Side A 03/17/2021 10:17:28 A 03/17/2021 95 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 95 Side B 03/17/2021 10:17:28

M K C Y On On . Mass- . hiQ , can a plaintiff Hamidi

This sub-Section argues that these these that argues sub-Section This Nor, under under Nor, Nevertheless, both the Ninth Circuit Circuit Ninth the both Nevertheless, ’s damage requirement: “Demonstrating that any that any “Demonstrating requirement: ’s damage Hamidi Unlike scraping information, the very object of a DDoS DDoS a of object very the information, scraping Unlike , a trespass to personal property plaintiff must “demonstrate

, 938 F.3d 985 ,2019). (9th F.3d Cir. 938 Hamidi Sandvig v. Barr, 451 F. Supp. 3d 73, 88 (D.D.C. 2020) (“[T]he analogy between real real between analogy (“[T]he 2020) (D.D.C. 88 73, 3d Supp. F. 451 Barr, v. Sandvig at 308.at at 1165–66.at 1149at n.23. hiQ Labs, Inc. v. LinkedIn Corp., Cir.1004 985,hiQ2019). 938 v. LinkedIn (9th F.3d Inc. Labs, 71 296,Intel Corp. v. 2003). P.3dHamidi, 306–07 (Cal. Id. LinkedIn Corp.’s Opposition to Plaintiff’s Motion for a Temp. Restraining Order at 1, Opening Brief Appellant’s at 55, hiQ Labs, Inc. v. Corp., 938LinkedIn F.3d 985 (9th hiQ Labs, Inc. v. Corp., LinkedIn 273 F. 3dSupp. 1099, 1113 n.11 (N.D. Cal. 2017), Id. Id. See LinkedIn contended at the district court level that hiQ’s scraping “erodes “erodes scraping hiQ’s that level court district the at contended LinkedIn Plenty of clear-cut cases remain within the CFAA’s reach, even after after even reach, CFAA’s the within remain cases clear-cut of Plenty 1. Platforms’ Personal Property Interests Interests Property Personal 1. Platforms’ The previous sub-Section observed that individual users lack clear personal 156 157 158 159 160 161 153 154 155 a distributed-denial-of-service a (DDoS) attack—is distributed-denial-of-service a paradigmatic trespass to personal property claim. the trust that LinkedIn has cultivated with its members, thereby damaging the plat- the damaging thereby members, its with cultivated has LinkedIn that trust the form in which LinkedIn has invested fifteen years and billions of dollars.” EMC). EMC). particular particular data-scraper has impaired the integrity of data or physically harmed appeal, appeal, however, LinkedIn itself argued that a trespass to chattels claim would be difficult to sustain to due querying a server in order to overwhelm it with requests and knock it offline—called offline—called it knock and requests with it overwhelm to order in server a querying Although these claims will be fact specific, it is probable that many scraping activities activities scraping many that probable is it specific, fact be will claims these Although trespass a platform’s to sustain injury of sufficient level the threshold will cause not suit. Under some measurable loss from the use of its computer system” rather that is than “substantial,” “momentary or theoretical.” causes causes of action, while plausible on other sets of facts, are ill-suited to address the unauthorized web scraping of publicly-accessible information undertaken by hiQ andClearview. property and the internet is not perfect.”). is perfect.”). and property the not internet hiQ Labs, Inc. Corp.,v. LinkedIn 273 F. Supp. 3d 1099 2017)(N.D. Cal. 17-CV-03301- (No. Cir. 2019)17-16783). (No. 174 174 longer be a viable exclusion mechanism. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM

“bootstrap . . . an injury” by citing its expenses made to prevent unauthorized que- prevent unauthorized to made its expenses by . . anciting injury” . “bootstrap ries. LinkedIn’s computer systems will be challenging.” be will systems computer LinkedIn’s may have more plausible trespass to personal property claims against scrapers. and Kerr’s article leave open the possibility that other property-like causes of action action of causes property-like other that possibility the open leave article Kerr’s and might be available to website proprietors. platforms recognized, Circuit Ninth the As scrapers. against assert to claims property aff’d andremanded 43059-lcb_25-1 Sheet No. 95 Side B 03/17/2021 10:17:28 B 03/17/2021 95 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 96 Side A 03/17/2021 10:17:28 at *1– at Id. some anti-scraping at *16. Potential federal Id. , 387 F.3d 522, 547 (6th Cir. Cir. (6th 547 522, F.3d 387 , , a lyrics website, Genius, brought brought Genius, website, lyrics a , Only copyright owners and and owners copyright Only undermine Genius

Indeed, a recent orderfrom a federal e that controls access” effectively to a

’s particular facts, an owner would remain free free remain facts, an would owner ’s particular hiQ v. Static Control Components, Inc. Components, Control Static v. scenarios that are this Article’s focus, platforms rarely own , 938 F.3d at 992. 992. at F.3d 938 , Even if a platform had taken some self-help to hinder web web hinder to self-help some taken had platform a if Even hiQ hiQ at at *1. The court that held “[Genius]’s breach of contract claims are nothing more Lexmark Int’l,Inc. Lexmark Genius Media Grp., Inc., v. Google LLC, No. 19-CV-7279 (MKB), 2020 WL Id. 17 U.S.C. § 1201(a)(1)(A) (2018). Indeed, LinkedIn’s cease-and-desist letter to hiQ Cf. hiQ Labs, Inc. v. LinkedIn Corp.,998 2019). 985, hiQ 938 (9th Cir. v. LinkedIn F.3d Inc. Labs, Granite Music Corp. v. Ctr. St. Smoke House, Inc., 786 F. See Supp. 2d 716, 724 Trade Trade secret law may give plaintiffs redress against scrapers who appropriate A platform might also attempt to state a claim against a scraper under the an- However, simply querying a server in an unauthorized manner rightly does not not does rightly manner unauthorized an in server a querying simply However, 2. Platforms’ Intellectual Property Interests Interests Property Intellectual 2. Platforms’ When scraping activities implicate user-uploaded data, as is the case in both 165 166 162 163 164 M K preemption of business torts willbe a vital issue as scraping’s common-law turn continues. *2. The plaintiff held licenses to the copyrighted lyrics, but the copyrights remained with music remained but lyrics, the copyrights to *2. the copyrighted licenses held The plaintiff publishers. than claims seeking to enforce unauthorizedreproduction thelyricsthereforeareofand preempted.” the copyright owners’ exclusive rights to protection from 5553639, at *10, *12, *14 (E.D.N.Y. Aug. 10, 2020). In In 2020). 10, Aug. (E.D.N.Y. *14 *12, *10, at 5553639, breach of contract, unfair competition, and displaying lyrics that were unjust allegedly scraped from Genius’s enrichment site without authorization. claims against Google for

included such a claim. 2004) (“[J]ust as one would not say that a lock on any door of a house ‘controls access’ to the (W.D.N.Y. 2011). 2011). (W.D.N.Y. 2021] 2021] property. her of use owner’s a server with interfere to is attack SCRAPING WEB 175 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM exclusive licensees may bring copyright suits. copyright bring may licensees exclusive webpages remain publicly accessible. publicly remain webpages scraping of public information, such a claim would be tenuous. As a threshold mat- threshold a As tenuous. be would claim a such information, public of scraping ter, efforts to mitigate scraping arguably do not “effectively control[] access” if the confidential confidential information, and it may even cover large compilations of publicly- district court indicates that copyright law may in fact fact in may law copyright that indicates court district claims. state-law relevant preempting bysuits ticircumvention ticircumvention provisions of the Digital Millennium Copyright Act, which prohibits circumventing “a technological measur copyrighted work. house house after its purchaser receives the key to the lock, provision otherwise-readily-accessible of the works.”). DMCA appliescopyrighted it to does not make sense to say that this support a trespass to personal property claim. This obviously does server’s status as not the owner’s personal property. alter Accordingly, absent the extraordi- the nary equitable relief granted on queries. unauthorized or mitigate prevent to measures self-help to implement any intellectual property rights that might subsist in the data in question. Rather, a a Rather, question. in data subsist inthe that might rights property intellectual any platform like Facebook or LinkedIn “has only a non-exclusive license to the data shared on its platform, not an ownership interest.” the Clearview and C Y 43059-lcb_25-1 Sheet No. 96 Side A 03/17/2021 10:17:28 A 03/17/2021 96 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 96 Side B 03/17/2021 10:17:28 M K C Y The it is the Section Section 43, 45 45 43,

AW L possible, a robot remedial discretion See also infra OMMON C humanly ex post post ex United States v. Nosal, 844 844 Nosal, v. States United at 43.

2020 Cal. Legis. Serv. Prop. Prop. Serv. Legis. Cal. 2020 . § 503.001(d) (West 2017); NN er means, using a bot to collect an collect to bot a using means, er see also also see A Cf. id. Equitable Intellectual Property: What’s ODE ODE amended amended by C

. itable considerations that could thwart ROPERTY AND THE P OM “Hot “Hot News”: The Enduring Myth of Property in C , every loophole an unscrupulous startup might

. US Henry E. Smith, ex ante B

. See EX NTELLECTUAL NTELLECTUAL I ) ) (“[A] trade secret may consist of a compilation of data, public in , unlikely ever to constitute improp constitute to unlikelyever Finally, platforms may have viable misappropriation . 419 (2011). § 1798.155(b) (West 2020), EV . § 19.375.030 (2020). At the same time, however, broader judicial discretion to interpret interpret to discretion judicial broader however, time, same the At . R

NN ODE Shyamkrishna Balganesh, Balganesh, Shyamkrishna L.

C .

. Section IV.D. IV.D. Section at 53 , Compulife Software Inc. v. Newman, 959 F.3d 1288, 1314 (11th Cir. 2020) , Int’l News Serv. v. Associated Press, 248 U.S. 215, 236 (1918). 236215, Press, (1918). 248 Int’l Serv. News v. U.S. Associated , IV ODE ODE C

. C OLUM In fact, misappropriation’s relational qualities are what make the cause cause the make what are qualities relational misappropriation’s fact, In

. This Articleadopts theperspective that misappropriationis better under- AL EV See id. See infra C See, e.g. See generally Misappropriation also incorporates equ See, e.g. Accordingly, the Article discusses misappropriation in a subsequent rela- subsequent a in misappropriation discusses Article the Accordingly, R

. 1. Users’ Rights Under State Statutes Statutes State Under Rights Users’ 1. The most obvious recourse that individual Internet users may have against , 111 C 111 , 171 172 168 169 170 167 ASH 24, § 1798.155(b) (West 2020); T tional section. tional stood as a relational interest, rather than a comprehensive, property-style right to from Compulife’s database is is database Compulife’s from otherwiseinfeasible wellmaybeofdata .amount . DHI.”);Kent,Grp.,. 397Inc.v. Supp. 3d F. News opportunistic uses of governing law. (“Nor does the fact automatically mean that that the taking was authorized or otherwise proper. Although Compulife has the defendants is as quotes many as access to [scraped] permission implicit world the given plainly [data] from a publicly can collect more quotes than any human practicably accessible could. So, while manually accessing quotes site 176 176 posted information. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM claims. C. Users’ Relational Interests Interests Relational Users’ C. (Shyamkrishna Balganesh (Shyamkrishna 2013). Press ed., Univ. Cambridge Equity’s W exclude. 904, 923 (S.D. Tex. 2019) (denying summary judgment 904, 923 to (S.D. Tex. judgment summary both 2019) (denying on parties a trade claim secret database);resume a of scrapingunauthorized the of out arising F.3d 1024, 1042 (9th Cir. 2016 sources or a combination of proprietary and public sources. It is well recognized that Wrong with Misappropriation of action better suited to addressing unauthorized scraping than property remedies. Clearview lies in biometric privacy statutes enacted at the state level. Four states have have states Four level. state the at enacted statutes privacy biometric in lies Clearview data: recognition facial process may firms how restrict that statutes privacy biometric Illinois, Texas, Washington, and California. California, Texas, and Washington violations. against penalties civil enforce to general attorney state the permit saves the law from having to foreclose, exploit. commercial morality—if wielded by a decisionmaker unfamiliar enterprise—may with disrupt a the business ecosystem norms that, for of all Internet its faults, has developed effective technological simple rules to and dictate appropriate behaviors. V.B.3 the (discussing robots.txt exclusion standard). secrecy of the claimed trade secret as a secrecy as wholeof claimedthe trade secret that is determinative.”). 43059-lcb_25-1 Sheet No. 96 Side B 03/17/2021 10:17:28 B 03/17/2021 96 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 97 Side A 03/17/2021 10:17:28

. . RIB

ARV T

. Com- HI , 120 H 120 , , C

. 14/10 (2008) (“Biometric (“Biometric (2008) 14/10 . and information derived . 14/20 (2008). TAT S

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. LL or audio recording or data generated therefrom At least one state Attorney General’s office, office, General’s Attorney state one least At Omniveillance, Google, Privacy in Public, and the Right Facebook Facebook to Pay $550 Million to Settle Facial Recognition Prosser identified four privacy torts: “intrusion “intrusion torts: privacy four identified Prosser . § 19.375.010 (2020) (“‘Biometric identifier’ does not note 5, at26. NN A supra supra , ODE C

. Mutnick EV Google’s Art Selfies Aren’t Available in Illinois. Here’s Why. State State of Vermont’s Motion for a Preliminary Injunction, Vermont v. R

. from their definitions of biometric identifiers. biometric of definitions their from (Jan. 29, 2020), https://www.nytimes.com/2020/01/29/technology/facebook- ASH , FAC, In the Face of Danger: Facial Recognition and the Limits of Privacy Law Privacy of Limits the and Recognition Facial Danger: of Face the In IMES IMES Biometric Information Privacy Act, 740I PrivacyAct, Information Biometric Illinois plaintiffs are already invoking the BIPA against Clearview. against BIPA the invoking already are plaintiffs Illinois

See, e.g. See Note, Biometric Information Biometric Privacy Act, 740 I See generally Entm’t Corp., Flags v. Six Rosenbach N.E.3d(Ill. 1207 2019). 1197,129 Natasha Singer & Mike Isaac, Ally Marotti, . 1870, 1875 (2007); Josh Blackman, Josh (2007); 1875 1870, . Perhaps unsurprisingly, the BIPA has given rise to the most involved litigation litigation involved most the to rise given has BIPA the unsurprisingly, Perhaps 2. Users’ “Privacy Tort” Claims Claims Tort” “Privacy Users’ 2. Previous have commentators observed that the privacy familiar torts, fa-most Biometric Biometric privacy statutes, and the BIPA in particular, seem like individual 178 179 180 173 174 175 176 177 EV , N.Y. R M K

to date. The Illinois Supreme Court held in 2019 that plaintiffs need not assert a act. the under sue to rights statutory their of violation a beyond injury particular include a physical or digital photograph, video .”). . . . privacy-lawsuit-earnings.html. Facebook recently settled a suit brought under the BIPA for $550 million. $550 for BIPA the under brought suit a settled recently Facebook Vermont, has filed a complaint against Clearview using its consumer protection au- protection consumer its using Clearview against complaint a filed has Vermont, thority. 20180116-story.html. L. Clearview (Vt. Super.AI Inc. Mar. 10,2020). Ct. Suit (Jan. 17, 2018, 7:00 AM), https://www.chicagotribune.com/business/ct-biz-google-art-selfies- 2021] 2021] Illinois Information Biometric Privacy Act is (BIPA) the only statute that gives individuals a private right of action. SCRAPING WEB 177 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

problem” problem” of facial recognition. mously mously elaborated by Prosser, “are simply too antiquated to handle th[e] unique panies panies like Google have unavailable applications in made facial recognition-related Illinois. identifiers identifiers do not include . . . photographs . . . . Biometric information does not include to to Your Digital Identity: A Tort for Recording and Disseminating an Individual’s Image Over the users’ best weapon against Clearview, but they have limitations. The and first The most limitations. they but have Clearview, against weapon users’ best states, only of those and states, four only cover laws these is that limitation obvious of of of the some the laws But substance may action. right a private affords Illinois also be less than wholly adequate to address the problem of facial nonconsensual recognition software. The plain text of both the Illinois and Washington statutes, for example, appears to specifically exclude photographs photographs from information information derived from items or identifiers.”); procedures W excluded under the definition of biometric C Y 43059-lcb_25-1 Sheet No. 97 Side A 03/17/2021 10:17:28 A 03/17/2021 97 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 97 Side B 03/17/2021 10:17:28

M K C Y The false false The Instead, the the Instead, to customers . 1977). NST I This Article does not not does Article This The Online Zoom Lens: Why Why Lens: Zoom Online The AW L

. M . 383,389 (1960). reveals who the plaintiff is plaintiff the who reveals EV information that would otherwise have have otherwise would that information R to to make their profiles public actually maintain

rmation that they post publicly, and it is doubtful is it and publicly, post they that rmation L. e public eye,” and “appropriation, for the true

. § b652D, cmt.(A ALIF ORTS T , 48 C 48 , OF OF . 575, 580–81 (2009). ) . 313, 314 (2009); Andrew Lavoie, Lavoie, Andrew (2009); 313,314 . EV EV R

R Privacy

torts torts squares very well with the harms an individual suffers L.

L. ECOND . A portrayals actionable, but facial recognition arguably engenders engenders arguably recognition facial but actionable, portrayals (S LARA C Finally, the most plausible claim, appropriation, is tolimited Finally, appropriation, uses plausible claim, the most 43 G false ” , e notion of a reasonable expectation of privacy, because such an ex- at § 652E Perhaps a plaintiff could assert a false light claim arising out of a , hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 994 (9th Cir. 2019) (“[T]here (“[T]here 2019) Cir. (9th 994 985, F.3d 938 Corp., LinkedIn v. Inc. Labs, hiQ , ANTA at § 652C cmt. c. c. cmt. 652C § at at§ 652B cmt. c (“The defendant is subject to liability. . . onlywhen hehas intruded ESTATEMENT See id. Id. See,e.g. William L. Prosser, R Id. A facial recognition service arguably does the opposite of appropriating a a appropriating of opposite the does arguably service recognition facial A , 49 S This Article takes it as given that most plaintiffs would have a hard time assert- time hard a have would plaintiffs most that given as it takes Article This None of Prosser’s 184 185 186 181 182 183 identification by a facial recognition algorithm, but such a possibility is beyond this Article’s claim is that the information Clearview enrolled in its database was, in the paradig- in the was, database its in enrolled Clearview information the that is claim matic case, voluntarily published by the plaintiff. This Article’s proposed tort de- emphasizes th Internet. public the to postings users’ in absent probably is pectation who otherwise would have had no or idea of reputation, sa- the identity, plaintiff’s characteristics. personal lient privacy any to obstacle chief The Clearview. against torts privacy Prosser’s of any ing plaintiff’s recognizable reputation—it instead instead reputation—it recognizable plaintiff’s light tort makes makes tort light uncovers it as insofar only harms privacy been obscure. Substantially Substantially the same limitation applies to intrusion upon seclusion. of “the reputation, prestige, social or commercial standing” of the plaintiff’s likeness.

mis scope. is little evidence that LinkedIn users who choose info the to respect with privacy of expectation an that they do.”). Internet 178 178 which “publicity facts,” private embarrassing of disclosure “public seclusion,” upon places the plaintiff in a false light in th name of advantage, theor plaintiff’s defendant’s likeness.” REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM Internet Street-Level Mapping Technologies Demand Reconsideration of the Modern-Day Tort Notion Notion Tort Modern-Day the of Reconsideration Demand Technologies Mapping Street-Level Internet of “Public Privacy aim to recapitulate others’ arguments that these that fail torts to recogni- facial arguments address others’ aim to recapitulate a are Prosser’storts possible, four as why paragraphbriefly glosses, as next tion.The harms. facial-recognition-related for fit poor into a private place . .. there is no liability for the examination of a public record concerning the when images she voluntarily published are enrolled in a facial recognition database. database. facial a recognition in enrolled are published voluntarily she images when merely defendant the “when apply not does life private to given publicity of tort The gives further publicity to information about the plaintiff that is already public.” plaintiff . . . [n]or is there liability for observing him or even taking his photograph while he is walking on the public highway . . . .”). .”). . . . highway the public on walking 43059-lcb_25-1 Sheet No. 97 Side B 03/17/2021 10:17:28 B 03/17/2021 97 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 98 Side A 03/17/2021 10:17:28 AW at a L

. M L.J. 221, 221 § 1 (A 1 § ALE , 19 Y NRICHMENT Some scholars argue that that argue scholars Some E But the doctrine and no- and doctrine the But NJUST , even if its practical significance , significance if even practical its U

& : like this Article’s proposed tort of bad tort of bad : proposed like Article’s this —may also be an appropriate remedy for for remedy appropriate an be also —may ESTITUTION ESTITUTION 5, at 29. 29. at 5, R relational Quadrating Quadrating Restitution and Unjust Enrichment: A Matter of OF OF ) Waiver Waiver of Tort and Suit in Assumpsit supra note note supra HIRD , Others disaggregate unjust enrichment from restitution: restitution: from enrichment unjust disaggregate Others (T Mutnick , while the latter focuses on the wrongness of the con- defendant’s This cause of action avoids many of the conceptual disadvantages of , Arthur Corbin, , Andrew Burrows, at § 3. 3. § at ESTATEMENT R Complaint at 26, Burke v. Clearview AI, Inc., No. 20-cv-00370-BAS-MSB (S.D. Cal. See See id. See, e.g. See, e.g. The normative tenets of unjust enrichment are elementary: for example, “a 3. Unjust Enrichment Enrichment 3. Unjust Some of the lawsuits filed against Clearview by platform users allege unjust . 2011) (“A person who is unjustly enriched at the expense of another is subject to liability in in liability to subject is another of expense the at enriched unjustly is who person (“A 2011) . 187 188 189 190 191 M K NST both the users and the third party. By recharacterizing the harm users suffer in Clear- in suffer users harm the recharacterizing By party. third the and users the both privacy” of “expectation the sidesteps tort proposed Article’s this scenarios,view-like formulations that may disqualify established privacy torts. Instead, it emphasizes terms. contractual on predicated expectations Feb. 27,2020); FAC, (1910) (“[I]t is a subject in which there has always been decisions great are confusion in of hopeless thought, conflict. This and theis due to the fact that law of action common and forms incidents wereas to mere the developed procedure.”). substantive principles of the I the wrong this Article describes. describes. this Article wrong the person is not permitted to profit by his own wrong.” enrichment. 2021] 2021] proposed tort emphasizes justifiable expectations about control over that information—specifically, the expectation that third parties bind that will service not of terms collect violates that published purpose a for and/or manner a in information SCRAPING WEB 179 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

menclature menclature of unjust enrichment are contested, and they reflect convoluted legal rules. procedural arcane from evolved that conventions unjust enrichment and restitution “quadrate:” that is, restitution is a remedy available only in cases of unjust enrichment, and unjust enrichment gives rise only to remedies. restitutionary restitution.”). tially the remedy for unjust enrichment forunjust remedy the tially the property, intellectual property, or established tort claims that this Article describes. Unlike intellectual property theories of recovery, which previous sub-Sec- tions suggest are misguided, unjust enrichment theories better recognize advan- that and Accordingly, the nonproprietary. is scraped allegedly Clearview information is of its tageously, recovery theory in behaved company the because in particular to Clearview it attaches faith breach, and this Ar- enrichment unjust between difference crucial The manner. a wrongful ticle’s proposed tort is that the former focuses on the defendant’s enrichment plaintiff’s expense emphasis deserves difference theoretical duct. This restitution—quintessen- that argue will Sections subsequent small: comparatively is C Y 43059-lcb_25-1 Sheet No. 98 Side A 03/17/2021 10:17:28 A 03/17/2021 98 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 98 Side B 03/17/2021 10:17:28

, M K C Y Hart inter inter . 1767, 1770 1770 1767, . § 44 cmt. b b cmt. 44 § EV R

. EX NRICHMENT E , 79 T 79 , NJUST U

itutionary remedies that plaintiffs & Unjust enrichment may resultfrom sts, sts, such as the claimant’s right of privacy, that that may arise from causes other than to focus on explaining why Clearview’s , illustrate a potential difficulty of deriving enrichment deriving of difficulty potential a illustrate ESTITUTION ESTITUTION remedy remedy R Hart OF OF ) , which is what an unjust enrichment theory would . 257, (2000). 258 EV HIRD , Ghirardo v. Antonioli, 924 P.2d 996, 1003 (Cal. 1003 v. 996,Antonioli, 924 1996). P.2d , Ghirardo R

(T L.

, the latter is a Unjust Enrichment and Wrongful Enrichment Wrongful and Enrichment Unjust Because facial recognition information is non-rivalrous and and non-rivalrous is information recognition facial Because

see also, e.g. see also, cause ESTATEMENT ESTATEMENT . at 1783–84. Instructively, Birks cites Hart v. E.P. Dutton & Co., 93 N.Y.S.2d ESTITUTION ESTITUTION R Peter Birks, Birks, Peter

at § 1; 1; § at

. , 8 R 8 , Cf Id. See Id. Cf. id , that Hart satisfy the phrase “at the expense of” without relying on any wrong. He would would He wrong. any on relying without of” expense the “at phrase the satisfy Hart that , at at individuals’ expense Identifying a wrong is easier than pinpointing precisely why Clearview was en- was Clearview why precisely pinpointing than easier is wrong a Identifying Unjust enrichment allows courts to provide a remedy when one individual “is “is a to Unjust allows when one remedy provide courts enrichment individual To the extent this Article has a dog in the fight, it follows the latter, multi- alia This must be right. He was claiming a restitutionary award, but the ground of his claim was was claim his of ground the but award, restitutionary a claiming was He right. be must This required, have would enrichment unjust in analysis Alternative . . .. libel of tort the still There is no wrong. from the also distinct was had which have then to find an unjust factor evidence that attempted heto do that, and probablyit could not havedone.been 195 196 192 193 194 non-proprietary, it may be difficult to argue how its usage in facial recognition soft- recognition facial in usage its how argue to difficult be may it non-proprietary, ware occurs at the expense of its subjects, independent of a privacy wrong. Thus, while it avoids some difficulties of an unjust enrichment theory, this Article’s proposed wrong does not necessarily foreclose rest pursue. might (“Profitable interference with other protected intere gives rise to a claim under § 44 if the benefit to the defendant is susceptible of measurement.”). (2000). riched riched typically require. Treating restitution as a possible remedy for a wrong—rather than just the flipside of unjust this enrichment—allows Article was and alleged conduct then wrong, using that as basiswrong the for a in remedy restitution. debt to the wrong person. Recovery debt for to the might unjust wrong amount typically person. Recovery enrichment two parties behaving non-culpably—for example, a plaintiff mistakenly remitting a a remitting mistakenly plaintiff a example, non-culpably—for behaving parties two implied contract claims. Birks writes of Id. Principle? to 1949), Ct. Sup. (N.Y. 880 873–74, 871, “at the expense of” a plaintiff independent from a wrong the defendant has committed. In the plaintiff Hart sued the publisher of a restitutionary book award of the publisher’s profits, but the court heldhis claimthat that, was barred by the he claimed, libeled him. Hart sought a one-year statute of limitations on libel, which had expired, and not by a six-year limitation on 180 180 the former is a enrichment. unjust REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM unjustly enriched at the expense of another.” of expense the at enriched unjustly causal account of restitution, propounded most famously by Peter Birks. On Birks’s Birks’s On Birks. Peter by famously most propounded restitution, of account causal enrich- unjust a defendant’s by caused be may that remedy a is restitution framing, ment, but may also arise from a wrong a defendant commits against a plaintiff. 43059-lcb_25-1 Sheet No. 98 Side B 03/17/2021 10:17:28 B 03/17/2021 98 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 99 Side A 03/17/2021 10:17:28

, &

ARD supra W , cf. , 31 L. § 51; §§ 49, 54–55; 54–55; 49, §§

112 (2014) (discussing (discussing (2014) 112 of the announcement by NRICHMENT NRICHMENT E E ), or the ), returnthe or of a particular NRICHMENT NJUST NJUST E U U

& g to do something the other parties NJUST U

Zacchini v. Scripps-Howard Broad. Co., 433 U.S. While LinkedIn and hiQ sought to provide provide to sought hiQ and LinkedIn While quantum meruit occurred within a month ESTITUTION ESTITUTION ESTITUTION AND AND ESTITUTION R . Rather, Clearview allegedly scraped data for a a for data scraped allegedly Clearview Rather, R IABILITY FOR FOR IABILITY Internalizing value that individual Internet users users Internet individual that value Internalizing cited in OF OF L OF ) ) IVIL IVIL note note 169, at 467 (discussing “correspondence approach” to HIRD C HIRD

: If we assume that the aggrieved users would not have li- have not would users aggrieved the that assume we If Privacy in Tort Law: Were Warren and Brandeis Wrong? (T (T ., https://www.facebook.com/help/187272841323203?helpref=faq_ supra supra When a defendant has behaved culpably, he may be required required be may he culpably, behaved has defendant a When TR C . 326, 331 (1966), to do. to ESTITUTION ELP ELP R

ESTATEMENT ESTATEMENT , ESTATEMENT not ROBS R R Balganesh, Balganesh, P

H . Facebook and its users by undertakin by users its and Facebook Harry Kalven, Jr., How Do I Turn the Face Recognition Setting On or Off for My Facebook Account? See See See How Do I Turn the Face Recognition Setting On or Off for My Facebook Account? hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 998 (9th Cir. 2019) (“[LinkedIn’s] On this framing, Clearview cannot just pay the market value of data that plain- that data of value market the pay just cannot Clearview framing, this On As applied to the Clearview situation, then, unjust enrichment is an imperfect an imperfect is enrichment unjust then, situation, Clearview to the As applied 201 202 203 197 198 199 200 M K ONTEMP ARNSWORTH ACEBOOK “blameworthy defendants”). purpose explicitly rejected by Facebook’s compact with its users. its with compact Facebook’s by rejected explicitly purpose competing employee analytics competing services employee analytics using the same data, Clearview transgressed vis-à-vis had agreed Meister v. Mensinger, 178 Cal. Rptr. 3d 604, 618 (Cal. Ct. App. 2014); Maglica v. Maglica, 78 Cal. Rptr. 2d101, 104 (Cal. Ct. App. 1998). could could have collected athrough consensual license may be unjust. But internalizing decision to send a cease-and-desist letter LinkedIn’s CEO that LinkedIn planned to leverage the employers for with similarities hiQ’s some to Skillproduct product.”). Mapper data on its platform to create a new C note 199. determining when a plaintiff has conferred a benefit on a action). defendant in an unjust enrichment F F 2021] 2021] to ( of the value the rendered services piece of property. SCRAPING WEB 181 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

content (lastcontent 2021).Feb. visited 27, to disgorge his profits to the plaintiff. the to profits his disgorge to censed images their for in enrollment a facial database recognition for law enforcement and industry, then Clearview did not simply enrich itself by scraping infor- did Clearview way, another Put transactionally. obtained it have that mation could not obtain the sort of unjust enrichment that the Court Supreme as cited the basis . . get[ting] . will good of theft the by enrichment “unjust publicity: of right the for free some aspect of the plaintiff that would have market value and for which [defendant] would normally pay.” tiffs would have been entitled to receive, or restore the of devaluation that data attributable to Clearview’s use. 562, (1977). 576 fit. What makes Clearview’s alleged conduct categorically different from, say, hiQ’s, hiQ’s, say, from, different categorically conduct alleged Clearview’s makes What fit. is that Clearview allegedly scraped information to use it for a purpose Facebook expressly represented it would not do C Y 43059-lcb_25-1 Sheet No. 99 Side A 03/17/2021 10:17:28 A 03/17/2021 99 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 99 Side B 03/17/2021 10:17:28 M K C Y ac- a particular defendant particular a . Concluding that Clearview’s Clearview’s that Concluding . wrong .

note note 198, at 61–62 (discussing the relationship between Indeed, the logicof an unjustenrichment claim sug- supra supra . , nonrelational , right nonrelational is an for mechanism inappropriate , same same results as this Article’s proposed tort. The point of Section V. note 192, at 1783. 1783. at 192, note in rem by particular means particular by Moreover, the market-orientated rationales of misappropriation propriety of such transactions. transactions. such of propriety wrongful see infra see infra note 151, at 1170 (“Companies can already use civil contract law, based on on based law, contract civil use already can (“Companies 1170 at 151, note supra im ARNSWORTH F supra Birks, Birks, See See also Kerr, An appropriate theory of recovery for companies will emphasize the relational theory of An will forrecovery theemphasize appropriate companies relational An unjust enrichment theory is a near match for the Clearview scenario, but it it but scenario, Clearview for the match near ais theory enrichment unjust An Platforms are not out of luck if neither the CFAA nor the common law of 204 205 206 as a party to a contract with a plaintiff platform, or more generally as a competitor a as competitor generally more or platform, a plaintiff with a to as contract party a of on impropriety the focuses to platform—properly that information cessing and unjust enrichment that make those doctrines inapt for addressing users’ privacy privacy users’ addressing for inapt doctrines those make that enrichment unjust and losses. companies’ for redressing apt them make actually may grievances property on sub-Section Section’s This scrapers. against rights companies’ of nature theactions from defendant’s flowing available facts. Aremedy—whether relational D. Platforms’ Relational Interests Interests Relational Platforms’ D. emphasized emphasized that an policing non-interfering access to public servers and the reproduction of publicly-

terms of use, to set legal limits on how visitors use their websites.”). websites.”). their use visitors how on limits set legal use, to terms of 182 182 value with the that Internet knowledge users would have refused to surrender it in is marketplace the REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM route to substantially the charac- avoid to been has then, wrangling, semantic of so paragraphsor ten past the a serious up set to and asset alienable another just as information biometric terizing was behavior alleged Clearview’s why of analysis enrichment was unjust begs the question of wrongfulness. Instead of trying to describe how Clearview’s gains accrued at users’ expense, subsequent Sections of this That wrongful. as described be can conduct alleged Clearview’s why describe Article wrong, in turn, could provide a route to the restitution remedy that an unjust en- yielded. have might claim richment gests a baseline propriety to market transactions in facial recognition data for law enforcement the use—but outrage the has episode and Clearview provoked, major platforms’ prolonged forbearance from creating such technologies, is premised on the present-day information non-proprietary onto markets and property of rationalesimposing risks that had been explicitly withheld from the facial-recognition-as-a-service market. Because unjust enrichment doctrine is so contested and confused, it may offer a restitution and tort); trespass covers scraping of the public web. Instead, as both the Ninth Circuit and Kerr observe, companies may invoke contract law against entities that breach their ofterms service. 43059-lcb_25-1 Sheet No. 99 Side B 03/17/2021 10:17:28 B 03/17/2021 99 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 100 Side A 03/17/2021 10:17:28 When (Nov. 26, 2012, 06:30 AM), IRED 455, 455–56 (2020); Bruce Schneier, Bruce (2020); 455–56 455, , W rt addresses: users of Internet platforms Internet of users addresses: rt RTS the claims the previous Section surveyed, surveyed, Section previous the claims the A

J.L.

. Meet Meet Your New Overlords: How Digital Platforms Develop OLUM How to Run Your Own E-mail Server with Your Own Domain, Part , 43 C 43 , note 169, at495. Itis difficult, if notimpossible, foran ordinary person tomain-

(Feb. 16, 2014, 6:00 PM), https://arstechnica.com/information- PM), 6:00 2014, 16, (Feb. Katrina Geddes, Geddes, Katrina supra supra And someone committed to rolling-one’s-own services would be be would services rolling-one’s-own to committed someone And ECHNICA Lee Hutchinson, Hutchinson, Lee T Balganesh, See generally See RS The relationship between a major Internet platform its users and a looks a between platform Internet major The little relationship First, it outlines the problem that the to the that problem the outlines it First, Such Such a relational approach has numerous virtues. It avoids “propertizing” The common law of California can support a narrow, relational claim against V. THE TORT OF BAD FAITH BREACH OF TERMS OF SERVICE SERVICE OF TERMS OF BREACH FAITH BAD OF TORT THE V. 207 208 209 M K , A reading reading bilateral terms of service contracts to create a narrow duty to third parties not to breach Third, certain it covenants. explains that willful the breach of such a describes it finally, and Fourth, damages. tortious awarding for grounds be can duty objections. to threshold responds and tort proposed the of the elements Problem Trust-Your-Overlords The A. feudalism. like bit individual plaintiffs should be able to state a tort claim against Clearview. This Sec- This Clearview. against claim tort a state to able be should plaintiffs individual four stages. in action of cause that elaborates tion lack the rights to enforce covenants in the terms of service that protect the users’ own interests. Instead, those users must trust the platforms to enforce those cove- do to incentives platforms’ when even them, breach parties against that nants third California precedent supports relevant that argues it Second, users’. fromdivergeso technology/2014/02/how-to-run-your-own-e-mail-server-with-your-own-domain-part-1/. tain a social and professional presence online without delegating its technological administration to third parties. This delegation brings immense benefits: for in- stance, Gmail relieves end users of the part-time job of administering email one’s server. own

and Sustain TechnofeudalismSustain and 1 2021] 2021] SCRAPING WEB 183 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM https://www.wired.com/2012/11/feudal-security/. nonproprietary information, and it rightly avoids remedying non-trespassory inter- non-trespassory remedying avoids it and rightly information, nonproprietary of causes Instead, property. tangible to trespasses were they if as servers with those actions of actions the and parties particular between relationship a on focus that action doc- misappropriation of suggests Balganesh Shyamkrishna as can, parties particular and speech free against entitlement the balance and modulate to courts “allow trine, concerns.” other entities that willfully violate a platform’s terms of service, to the detriment of claim- of detriment the to service, of terms platform’s a violate willfully that entities ants who rely on those same terms in separate agreements with the platform. In of inadequacy the of spite in words, other It It Comes to Security, We’re Back to Feudalism C Y 43059-lcb_25-1 Sheet No. 100 Side A 03/17/2021 10:17:28 A 03/17/2021 100 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 100 Side B 03/17/2021 10:17:28 M K C Y services in (June 4,(June 2015), gratis gratis IMES IMES termsagainst a third its Such a service—call it it service—call a Such , N.Y. T A third downside is inflex- st rely onrelysttheproprietors thatof plat- uated users. y, privacy, and security. Another is lack lack is Another security. and privacy, y, Pay for Facebook for Pay do retain some ability to enforce them . (Aug. 21, 2019), https://knightcolumbia.org/ is hub-and-spoke structure of contracts puts a NST similarly-sit I Protocols, Not Platforms: A Technological Approach to Free

. MEND A

Mark Zuckerberg, Let MeLet Zuckerberg, Mark

note 208. 208. note Facebook, Inc., Consumer Privacy User Profile Litig., 402 F. Supp. 3d 3d Supp. F. 402 Litig., Profile User Privacy Consumer Inc., Facebook, IRST IRST Mike Masnick, Masnick, Mike F supra In In re , NIGHT Zeynep Tufekci, Schneier, See, e.g. See generally , K Combining platforms’ advantages (irrefutable economies of scale and social in- social and scale of economies (irrefutable advantages platforms’ Combining But the delegation to companies also has downsides. The first is difficulty of Some Some of what users delegate to platforms is their ability to protect themselves 210 211 212 213 767, 801 (N.D. Cal. 2019) (holding that Facebook users stated claim for breach of contract arising arising contract of breach for claim stated users Facebook that (holding 2019) Cal. (N.D. 801 767, alleged of Facebook’s out noncompliance UseData with Policy). its of control, and lock-in platform. effects) major reveals one least the at use feudal to aspects than other of option the practical no status have quo. users Most Internet mu they platform, one on rely users once And form to protect their Some interests. of that may protection come from promises appear Thosepromisestreated. will usersbe how about platformsusers to the make in platforms’ Terms of Service, and users platforms. against dispensability) with their disadvantages (difficulties in preference-satisfaction, lack

https://www.nytimes.com/2015/06/04/opinion/zeynep-tufekci-mark-zuckerberg-let-me-pay- for-facebook.html. Speech 184 184 Facebook. like network social closed a on all at participate to unable users preference-satisfaction: may find it difficult to find a package of services that functionalitforpreferences precisetheir suits REVIEW LAW CLARK & LEWIS of control over the bargain: the biggest platforms offer end-users data. user to access unfettered essentially for exchange 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM ibility: once a user adopts a platform, a lack of data portability may make it onerous onerous it make may portability data of lack a platform, a adopts user a once ibility: providers. to switch content/protocols-not-platforms-a-technological-approach-to-free-speech. content/protocols-not-platforms-a-technological-approach-to-free-speech. identify identify and connect with other in- may to parties user third on set the which terms each allow LinkedOut—could scraper—accepted data a party—say, third a If server. her and profile her with teract a LinkedOut user’s personal terms, and then violated those terms, the LinkedOut user might have contractual or statutory recourse against that third party. In con- enforce to itself LinkedIn on rely must users LinkedIn trast, party that violates those terms. Th problem. against against third parties’ malfeasance. Imagine profiles that create to instead users individual of allowed that a protocol federated a centralized offered LinkedIn service, on servers that the users themselves owned and operated personally, and then to platform at the center of a network of users who are in privity with the platform but but platform the with privity in are who users of network a of center the at platform “trust-your-overlords” the called might be what engenders It another. one not with 43059-lcb_25-1 Sheet No. 100 Side B 03/17/2021 10:17:28 B 03/17/2021 100 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 101 Side A 03/17/2021 10:17:28

, 6:44

ACEBOOK 2020,

, F 18,

(Aug. 8, 2018), (Jan. IMES T But the facts of the the of facts the But https://www.britannica., WITTER WITTER T

, N.Y. RITANNICA B identified the shortcomings of the the of shortcomings the identified NCYCLOPEDIA , E , bad if one can actually rely on one’s overlords for

Jonathan Zittrain (@zittrain), Zittrain Jonathan d. Indeed, that pledge of protection oris more the less protection of pledge d. Indeed, that Feudalism see also Rules Won’t Save Twitter. Values Will. Values Twitter. Save Won’t Rules note 1; 1; note Facebook users may have relied on Facebook’s pledges to limit its its limit to pledges Facebook’s on relied have may users Facebook supra Elizabeth A.R. Brown, Brown, A.R. Elizabeth Hill, See What Is the Face Recognition Setting on Facebook and How Does It Work? Kara Kara Swisher, https://twitter.com/zittrain/status/1218544819615780864 (“If the article is right that a of feudalism, at least as far as vassals are concerned. are vassals as far as least at feudalism, of The The trust-your-overlords problem is that users may rely on centralized plat- 1. The Information Fiduciary Response Response Fiduciary Information The 1. Jack Balkin and Jonathan Zittrain have The same would appear to be true of users who are aggrieved by Clearview’s Feudalism may not be so

215 216 217 214 M K Facebook Facebook board member has invested in the company that’s a gathering that’s these whether about more photos think to want I’d as service, of terms own Facebook’s its against business, core violation of that board member’s fiduciary duty to Facebook.”). com/topic/feudalism (last visited Jan. 27, 2021). Now that a third party—one that may have been bound by Facebook’s terms, in- ing ing and Facebook’s terms Twitter’s of service. But only ultimately, the platforms, not their users, would ordinarily have the ability to enforce their terms against a party. breaching willfully However, they must rely on their overlords to enforce those rules. rules. those enforce to overlords on their rely must they However, https://www.nytimes.com/2018/08/08/opinion/twitter-alex-jones-jack-dorsey.html. AM), https://www.facebook.com/help/122175507864081?helpref=faq_content (last visited Jan. 27, Clearview situation suggest that trust in one’s overlords might be misplaced: Clear- misplaced: be might overlords one’s in trust that suggest situation Clearview board Facebook’s on also is who Thiel, Peter from funding received reportedly view of directors. 2021] 2021] SCRAPING WEB 185 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

use of facial recognition technology in choosing whether to join the network. cluding cluding Facebook’s prohibition on automated data collection—has undermined those expectations willfully, must users depend only on Face- not-so-disinterested Clearview? against terms its enforcing by problem the redress to book face-scraping operations. Clearview has received cease-and-desist notices for violat- for notices cease-and-desist received has Clearview operations. face-scraping worl in a perilous protection point 2021). forms’ terms when entering into relationships with that platform, and those terms terms and those with platform, that relationships into entering when forms’ terms the terms bound by others of how the users’ expectations influence may reasonably a in platform with the user interacts a But if second platform. with the interact will way that violates the platform’s terms—short of committing an established against the tort first user—the user must depend on the platform itself to enforce its in of the field salient are particularly issues These user. the breaching terms against content moderation. Some Twitter users, for example, are outraged that flagrant violations of Twitter’s rules against hate speech go undisciplined by Twitter. C Y 43059-lcb_25-1 Sheet No. 101 Side A 03/17/2021 10:17:28 A 03/17/2021 101 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 101 Side B 03/17/2021 10:17:28

. . M K EV C Y ARV R

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ust-your-overlords ust-your-overlords problem in the first oposed addressing it by imposing a fidu- a imposing it by addressing oposed istent with the company’s terms, settings, note 218. 218. note A Skeptical View of Information Fiduciaries Information of View Skeptical A In reply to information fiduciary proposals, oth- proposals, fiduciary information to reply In brief to the Ninth Circuit in in to theCircuit Ninth brief

(Oct. 3, 2016),https://www.theatlantic.com/technology/ supra

When When All You Have Is a Fiduciary Jack M. Balkin & Jonathan Zittrain, Zittrain, Jonathan & Balkin M. Jack TLANTIC Balkin, A

, Information Fiduciaries and the First Amendment First the and Fiduciaries Information see also see also also see at 509;at In fact, in an amicus Critics of the proposed fiduciary model note that it does little to address address to little does it that note model fiduciary proposed the of Critics Brief of Amicus Curiae Electronic Privacy Info. Ctr. (EPIC) in Support of Neither Party Party Neither of Support in (EPIC) Ctr. Info. Privacy Electronic Curiae Amicus of Brief James Grimmelmann, Pozen, E.David & Khan M. Lina See id. Jack M. Balkin, Balkin, M. Jack . 497, (2019). 535 This Article’s proposal is far more modest than an information fiduciary obli- fiduciary an information than more modest is far proposal This Article’s 219 220 221 222 218 EV R

ciary duty on Internet platforms that handle the sensitive personal information of end users. archive/2016/10/information-fiduciary/502346/. 1183, 1221–24 (2015); Trustworthy Companies Tech the circumstances that engendered the tr Urging Reversal at 13, hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985 (9th Cir. 2019) (No. 17- (No. 2019)Cir. (9th 985 938 Corp.,F.3d LinkedIn v. Inc. 13,Labs, hiQ at Reversal Urging 16783). 2019),https://lpeblog.org/2019/05/30/when-all-you-have-is-a-fiduciary/. L.

186 186 pr have and paradigm trust-your-overlords REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM Internet platforms may wreak on users, the broader commercial ecosystem, or dem- or ecosystem, commercial broader the users, on wreak may platforms Internet ocratic society at large. But these limitations are also advantages. This proposal’s pro- in critics identify that incoherence internal the of some avoid it helps modesty imple- to easier far it makes scope limited its And fiduciaries. information for posals regulations privacy existing preempt might that reform sweeping a of Instead ment: noth- require would action of cause this techniques, enforcement novel demand and imprimatur. judge’s law a common than more ing eration. gation. First, it applies only in narrow circumstances. Second, it modifies not the ubiquitous contractual relations between platforms and their users, but rather the relations between users and peripheral actors that willfully undermine the protections that platforms represented extractive to that their harms users. interconnected That the means that, redressing to on close its nowhere own, comes the proposal ers ers have observed that fiduciary duties do not transpose neatly onto the more nu- such as may users, assume towards content-mod- platforms that anced obligations place: instead market of place: instead power to and eco- platforms’ working their major counter prob- systemic of “conceives it interests, privacy users’ disregard to incentives nomic terms.” relational in lems Privacy Information Center (EPIC) argued that “LinkedIn’s user agreement and under with users” relationship “LinkedIn which a fiduciary establish policy privacy bears the burden of protecting a user’s personal information and ensuring data is only collected, used, and disclosed cons representations.” LinkedIn’s and 43059-lcb_25-1 Sheet No. 101 Side B 03/17/2021 10:17:28 B 03/17/2021 101 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 102 Side A 03/17/2021 10:17:28

917, But

. inten- EV . R

The Cal- The L.

. , which held EX , 88 T 88 , The following two responsibility Shielding Duty: How Attending to Biakanja v. Irving Torts as Wrongs as Torts questions of questions about appropriate levels of of levels appropriate about questions legal policy account legal and substantive force by anchoring it in in it anchoring by force substantive legal and account . 329, (2005). 330 uced uced this analysis in EV R

. AL C

Section V.E.2. V.E.2. Section , 79 S. infra

see John C.P. Goldberg & Benjamin C. Zipursky, violating a covenant ain as a violating a covenant can terms of platform’s service be understood ” rather than determining appropriate appropriate determining than rather ” John C.P. Goldberg & Benjamin C. Zipursky, 320 v. Irving, 16, Biakanja P.2d1958). 19 (Cal. See This is not to say that a violating of provision a terms of service is agreement the only

(2009).

To make actors like Clearview liable to aggrieved plaintiffs, it is helpful to have have to helpful is it plaintiffs, aggrieved to liable Clearview like actors make To This Section explains that California caselaw offers a doctrinal basis basis for a offers recog- doctrinal caselaw California that explains This Section As a “matter of policy,” California courts sometimes grant nonparties to a con- a to nonparties grant sometimes courts California policy,” of “matter a As 225 226 223 224 M K lations lations of an obligation under the terms can amount to a wrong against another user. Sections argue that platforms’ terms of service can structure users’ expectations, in- users’ expectations, can structure terms of platforms’ service argue that Sections users wrong may terms those violating intentionally that such behaviors and terests, who are parties to parallel instantiations of the same terms. In other words, people other users that they because understand networks in social commercial participate are bound by the same terms they accept. in Therefore, some cases, one user’s vio- the the same legal analysis helps and why doctrinally, explain, both theoretically tionally platform. that of a user to wrong legal

This particular explanation tries to give the the give to tries explanation particular This familiar legal forms. Deriving a duty to users from a covenant in a platform’s terms of service is This wrongful. be may covenant that violate to happens that conduct why for explanation one just beshould but it not purposes, to Article’s this tailored and disciplined is analytically explanation understood to exclude or conflict with other, broader explanations of why conduct Clearview’s has alleged wronged Internet users. For further discussion limited scope, of this proposal’s self-consciously Decisionmaking Improve Can Doctrines “Quaint” Other and Nuisance, Attractive Risk, of Assumption Cases in Negligence 937–39 possible basis on which an actor like Clearview enrolling couldwhy state beto ways plausiblesaid many toare There network. havesocial a committedof userindividual a an against legal wrong someone in a commercial facial recognition database without that person’s consent is wrongful. 2021] 2021] Parties Third to Duties Create Can of Service Terms Bilateral B. par- a why and “wrong,” was that did allegedly Clearview what of account precise a wrong. that for redress to entitled be to ought plaintiff ticular SCRAPING WEB 187 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM nizing that bilateral terms of service can give rise to a legal duty to avoid such wrongs wrongs such avoid to duty legal a to rise give can service of terms bilateral that nizing to users. As deployed to establish duties in negligence suits, this line of “open-ended cases analyzing as has criticized been liability ifornia ifornia Supreme Court introd that the beneficiary of a will could recover damages against a notary whose negligence rendered the will invalid, despite the plaintiff not being in privity with the tract the right to sue for a contracting party’s inadequate performance. inadequate party’s for to a sue tract right contracting the C Y 43059-lcb_25-1 Sheet No. 102 Side A 03/17/2021 10:17:28 A 03/17/2021 102 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 102 Side B 03/17/2021 10:17:28 M K C Y ’s ’s duty Biakanja

The following sub-Sections sub-Sections following The es); Leyba v. Whitley, 907 P.2d 172, Annett Holdings, Inc. v. Kum & Go, & Kum v. Inc. Holdings, Annett at are also in privity with a platform. But cf. But Centinela Freeman Emergency Med. Assocs. v. Health a nonclient.”); Sentry Select Ins. v. Maybank Law Firm, ’s “balancing of factors approach” as “broad” and “unworkable”). “unworkable”). and “broad” as approach” factors of “balancing ’s often occur in the context of recovery for purely eco- purely for recovery of context the in occur often the contract [between defendant doctor and plaintiff’s spouse] runs Biakanja set forth the following factors for determining whether to im- Biakanja cited with approval in Notably, however, at least one court has invoked favorablyand applied similar balancing tests to derive duties—albeit , Harrigfeld v. Hancock, 90 P.3d 884, 889 (Idaho 2004) (articulating “very , J’Aire Corp. v. Gregory, 598 P.2d 60, 63 (Cal. 1979). Biakanja Andalon v. Superior Court, 162 Cal. App. 3d 600, 610–11 (1984) (analyzing “along (analyzing (1984) 610–11 600, 3d App. Cal. 162 Court, Superior v. Andalon at 17. 17. at 19, at

lines” a nonpatient’s claim against a doctor for negligent infliction of emotional distress: Cf., e.g. Id. Id. See, e.g. See Biakanja [1] the extent to which the transaction was intended to affect the plaintiff, [2] [2] plaintiff, the affect to intended was transaction the which to extent the [1] theforeseeability of harm him,to [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defend- harm. future preventing of policy the [6] and conduct, ant’s Citations to 231 227 228 229 230 often often extremely limited ones—to nonparties arising from ships. contractual relation- analyze each factor to argue that certain covenants in a platform’s bilateral terms of of terms bilateral a in platform’s covenants certain that argue to factor each analyze service should create duties to third parties th have jurisdictions other numerous test, California’s tracks below analysis While the cited pose a duty on a noncontracting party: party: a noncontracting on duty a pose

Net of Cal., Inc., 382 P.3d 1116, 1128 (Cal. 2016). Net 1128 Inc., 2016). 1116,382of Cal., (Cal. P.3d Biakanja “The tort duty arising from becausebut [plaintiff], to harm emotional of forseeability the of becausemerely not[plaintiff], to of the nexus between relationship.”). his significant interests and the ‘end and aim’ of the contractual 188 188 notary. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM analysis analysis in the context of harm, emotional as well. nomic losses. narrow” narrow” duty of lawyers to certain testamentary beneficiari 177 177 1995) (N.M. (“[W]e join that any those have jurisdictions privity test rejected stringent as the touchstone of an attorney’s duty to privity strict outside claim malpractice legal a (recognizing 2019) (S.C. 274 270, S.E.2d 826 LLC, omitted); citations (internal factors”) various of balancing the involv[ing] policy . . . of matter “a as Erpelding v. Lisek, Erpelding71 v. Lisek, P.3d2003). 758754, (Wyo. L.C., 801 N.W.2d 499, 504 (Iowa 2011) (“When parties enter into a chain of contracts, even if the two parties at issue have not actually entered into an agreement with each . other . . tort law should should not supplant a consensual network of contracts.”); Noble v. A.2d 709 Bruce, 1264, 1271 (criticizing 1998)(Md. 43059-lcb_25-1 Sheet No. 102 Side B 03/17/2021 10:17:28 B 03/17/2021 102 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 103 Side A 03/17/2021 10:17:28

L.J.

. Risch Risch ECH and as- and T Twitter’s An explicit explicit An IGH IGH H

& disclaimers would be OMPUTER C , JOTWELL (Nov. 9, 2009), ofthese terms do not reflect the LARA C ANTA late users’ interactions beyond the inter- the beyond interactions users’ late erstate its case: these , 25 S , https://twitter.com/en/tos (last visited Jan. 27, 2021) 27, Jan. visited (last https://twitter.com/en/tos , , https://www.facebook.com/legal/terms/plain_text_terms Thus, the substanceof terms of servicewould seem WITTER , https://policies.google.com/terms?hl=en-US , (last https://policies.google.com/terms?hl=en-US visited Feb. Third Third Parties to the Rescue , T , (“These (“These Terms do not confer any third-party beneficiary rights.”); ACEBOOK

OOGLE , F Virtual Virtual Third Parties , G Facebook’s andGoogle’s do soas explicitlyas possible. at 422–25. 422–25. at (“These terms describe the relationship between you and Google. They don’t create

Twitter Terms of Service of Terms Twitter Michael Risch, See id. (9th 985 F.3d 938 Corp., LinkedIn v. Inc. Labs, hiQ n.1, 7 at Brief Opening Appellant’s James Grimmelmann, Terms of Service Moreover, Moreover, the representations about beneficiaries that platforms make to It makes intuitive sense that some provisions of platforms’ terms of service exist exist service of terms platforms’ of provisions some that sense intuitive makes It 1. Anti-Scraping Covenants Arguably Exist for Users’ Benefit Benefit Users’ for Exist Arguably Covenants Anti-Scraping 1. platforms’Majoralmostoftermsservicealways third-partydisclaim any bene- 234 235 236 237 232 233 M K party users. For example, third-party users “objectively benefit” from anti-cheating from anti-cheating benefit” “objectively users. users party For third-party example, clauses in multiplayer games, anti-spam or anti-harassment clauses, and clauses in Google Google Terms of Service disclaimer of third-party benefit is about the strongest possible indication that these these that indication possible strongest the about is benefit third-party of disclaimer suingClear- users individual benefit to intended not are of service terms platforms’ view. This Article does not want to ov proposal. to author’s this fatal them find well A might court to surmount. difficult corners four the that arguments good are there But intentions. complete parties’ proffers proffers several common provisions that seem obviously intended to benefit third- regu to not promise providers service which enumerate. terms the ventions serts that “LinkedIn restricts automated bots from making tens of millions of calls the and interests, privacy members’ both protects data. This to its servers to extract 416, (2009). 425 27, 2021) . .organizations . .”). legal or for any other people rights Cir. 2019)17-16783). (No. https://cyber.jotwell.com/17/ https://cyber.jotwell.com/17/ (“I suspect that the moment courts start to recognize users’ rights to enforce user agreements against each other, companies will immediately rewrite their terms of service to expressly disclaim any possible third-party benefits.”). (last visited Feb. 27, 2021) 2021] 2021] terms imply that they do not create third-party beneficiary rights. SCRAPING WEB 189 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

courts sometimes diverge from the letter of their terms. LinkedIn’s own briefing describes how the of configuration its file members” “benefits robots.txt to belie platforms’ claims that the contracts are not to intended benefit third-party users. for for the benefit of other users. Michael Risch has argued for a “broad reading of intended beneficiary status” in platforms’ terms of service on this basis. (“This license has the sole purpose of enabling you to use and enjoy the benefit of the Services as as Services of the benefit the enjoy to you and use of enabling purpose sole has the license (“This Terms.”). these bypermitted by Twitter, provided in the manner ficiary rights. ficiary C Y 43059-lcb_25-1 Sheet No. 103 Side A 03/17/2021 10:17:28 A 03/17/2021 103 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 103 Side B 03/17/2021 10:17:28 , M K C Y aff’d And in in And see also, e.g. (Feb. 14, 2020), Thus,disclaim- Although that liti- that Although IGEST IGEST The district court in D OLT J

Because LinkedIn had ar- had LinkedIn Because , Patel v. Facebook: Facebook Settles

, Facebook users mounted a class action action class a mounted users Facebook , t claim a privacy interest in information information in interest a claim t privacy note 176; Rachel Pester, Pester, Rachel 176; note Patel v. Facebook v. Patel supra , 938 F.3d 985 (9th Cir. Cir. 9382019). 985, F.3d (9th Singer Singer & Isaac, New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Scarano v. Central

See 2017), Cal. 1118 273 3d (N.D. 1099, F. Supp. Corp., v. Inc. hiQ LinkedIn Labs, Id. See LinkedIn Corp.’s Supplemental Brief in Opposition to Plaintiff’s Motion for a Facebook, Inc.’s Reply to Amicus Curiae Electronic Frontier Foundation’s Brief in Of course, positions taken in litigation regarding a contract do not nullify that that nullify not do contract a litigation inregarding positions taken Ofcourse, It is easily foreseeable that Clearview’s willful breach of a platform’s anti-scrap- platform’s a of breach willful Clearview’s that foreseeable easily is It 2. 2. Privacy Harm Is a Foreseeable, Certain, and Proximate Consequence of explicitly explicitly noted inconsistencies between LinkedIn’s position in that case and 240 241 242 243 238 239 gued in other litigation that its users canno users that its litigation in other gued that they post publicly to LinkedIn, of concern out the “solely scraping hiQ’s to curtail it sought that argument district LinkedIn’s court looked skeptically upon purposes. anticompetitive for than rather privacy[,]” member for suggestions, which settled in January 2020 for $550 million. Power Ventures, Inc., 252 F. Supp. 3d 765 (N.D. Cal. 2017) (No. 08-CV-05780-LHK). 08-CV-05780-LHK). (No. 2017) Cal. (N.D. 765 3d Supp. F. 252 Inc., Ventures, Power R.R. Co., 203 F.2d 510, 513 Williamson (3d v. Cir. Williamson, 1953)) 657 N.E.2d (internal 651, quotations 657 omitted); doctrine against approbation and reprobation). (Ill. App. Ct. 1995) (surveying equitable Act Privacy Illinois Information Biometric (“BIPA”) Suit Violation https://jolt.law.harvard.edu/digest/patel-v-facebook-facebook-settles-illinois-biometric- Preliminary Injunction at 16, hiQ Labs, Inc. v. LinkedIn Corp., 273 F. Supp. 17-CV-03301-EMC). Cal. 2017) (No. 3d 1099 (N.D. Support of Defendant Power Ventures’ Motion for Summary Judgment at 1, Facebook, Inc. v. 190 190 LinkedIn website itself from technical overload and other problems.” REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM

contract’s contract’s explicit language. But those positions are not ephemera, meaningless either. Courts have equitable discretion to hold parties estopped from “playing fast claims. incompatible asserting by courts” the with loose and ment, could harm the affected users. For one, precedent acknowledging a similar In available. readily is harm against for data Facebook for their storing facial-recognition use as photo-tagging ers notwithstanding, there are practical reasons and doctrinal mechanisms for rec- users’partiallybene- forleastat platforms’ prohibitionsexist scrapingthat ognizing fit. Recognition Facial Commercial Nonconsensual, ing terms, for the of purposes a creating service for facial law recognition enforce- CFAA litigation against a company that accessed its network without authorization, without network its accessed that company a against litigation CFAA Facebook described the terms of the “Facebook Connect” developer data.” platform and privacy users’ to safeguard “designed as hiQ the positions LinkedIn had taken in prior litigation. and remanded 43059-lcb_25-1 Sheet No. 103 Side B 03/17/2021 10:17:28 B 03/17/2021 103 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 104 Side A 03/17/2021 10:17:28

control control of interest. privacy

an individual’s biometric privacy an biometric privacy rights individual’s Such scraping disregards theinformational the development of a face template using fa- aof face template the development ometric Information Privacy Act Information ometric ra- (BIPA), “ ” ’s “certainty” prong tend to operate to limit the

characterized Biakanja Patel Patel The court contemplated that “the facial-recognition technology at added). (emphasis (quotation marks omitted). (quotation

’s ’s conception of privacy, then, suggests that the interest Clearview alleg- Patel v. Facebook, Inc., 932 F.3d 1264, 1273 (9th Cir. 2019) (internal citations omitted). omitted). citations (internal 2019) Cir. (9th 1273 1264, F.3d 932 Inc., Facebook, v. Patel Id. Id. See id. Cf. id. Moreover, Moreover, Clearview’s alleged conduct is far more harmful than Facebook’s Importantly, Importantly, Patel Interpretations Interpretations of 244 245 246 247 248 M K edly edly invaded may properly be called a privacy interest. The inter- public privacy any availability of vitiate necessarily not does websites media social to posted photos Rather, processed. and collected are photos how those in retain might users ests the collection and processing of those in photographs a manner and for a purpose rejected by a platform’s terms of service encroaches on those individuals’ “ person. [their] concerning information controls—the controls—the prohibitions of scraping and of most facial recognition usage—me- users. their with agreements platforms’ in morialized allegedly injurious uses of facial recognition. Facebook users were found to be injured merely because Facebook used facial recognition to suggest an individual to its provides reportedly Clearview contrast, In photograph. uploaded an in tagged be consent the without operates and industry, private and enforcement law to products database. its in person every effectively of sphere of eligible plaintiffs rather than to determine whether or not to recognize a “[B]oth the common law and the literal understandings of privacy,” the Ninth Cir- Ninth the privacy,” of understandings literal the and law common the “[B]oth or his concerning information of control individual’s the “encompass observed, cuit her person.” issue issue here can obtain information that is ‘detailed, encyclopedic, and iden- movements, effortlessly individual someone’s track to serve could which and compiled,’” measures authentication biometric the bypass even potentially or associates, her tify phone. cell her secure that

information-privacy-act-bipa-violation-suit. 2021] 2021] under the gation proceeded Illinois Bi purposes the for concluded Circuit Ninth the tort, privacy law common a than ther of Article III standing “that an invasion of has a close relationship to a harm that has traditionally been regarded as providing courts.” American or a in English lawsuit for a basis SCRAPING WEB 191 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM cial-recognition technology without consent” as an invasion of a a of invasion an as consent” without technology cial-recognition ability analysis and limited a plaintiff class to those who were aware of their relatives’ relatives’ their of aware were who those to class plaintiff a limited and analysis ability cause of action at all. In a case involving widespread mishandling of corpses in the foresee- its into certainty subsumed Court Supreme California the business, funeral C Y 43059-lcb_25-1 Sheet No. 104 Side A 03/17/2021 10:17:28 A 03/17/2021 104 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 104 Side B 03/17/2021 10:17:28

M K ON C Y . 127,

. This This YS ONF S

C L ’ NT I ISDN

& ETWORKS N IEEE/WIC/ACM

The California Supreme Court Court Supreme California The It is not clear whether Clearview Clearview whether clear not is It , 2010 , OMPUTER . 668, 668 (IEEE Toronto, AB, Canada Aug. , 28 C ECH T GENT A Ethical Web Agents The Ethicality of Web Crawlers Web of Ethicality The NTELLIGENT I In this case, Clearview’s purpose in breaching the terms of In- of terms the breaching in purpose Clearview’s case, this In

& Section V.B.3. ’s ’s close connection requirement acts as a screen for remote conse- Adherence to, or violation of, the robots.txt exclusion protocol remains remains protocol exclusion robots.txt the of, violation or to, Adherence Centinela Freeman Emergency Med. Assocs. v. Health Net of Cal., Inc., 382 P.3d Christensen v. Superior Court, 820 1991). v. Christensen Superior Court, (Cal.196–97 181, P.2d See infra See Summit Fin. Holdings, Ltd. v. Cont’l Lawyers Title Co., 41 P.3d 548, 554–55 (Cal. David Eichmann, SunYang et al., (1995).

NTELLIGENCE 3. Clearview’s Alleged Conduct Is Morally Blameworthy Blameworthy Morally Is Conduct Alleged Clearview’s 3. Biakanja Clearview’s Clearview’s alleged conduct is blameworthy in a variety of relevant senses of I 249 250 251 252 253 254 EB 2002). factor factor may therefore limit potential plaintiffs to those who can plead adequately a privacy harm caused by Clearview’s willful breach of platforms’ terms. It is likely moral general the given damages, such plead can plaintiffs suitable some least at that practices. Clearview’s surrounds that opprobrium 1116, 2016). 1129 (Cal. 133–34 W a criterion for the “ethicality” of web crawlers. for the “ethicality” a criterion 192 192 burial, even if they did not personally witness the misconduct firsthand. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM

ternet platforms was to construct a grievances. users’ Internet facial caused that database that of use commercial and creation recognition database, and it was the 2010). neglected neglected to find a connection between an escrow agent’s alleged negligence and a financial loss it caused to a nonparty to the escrow, on the grounds that the non- stat- a with noncompliance own its to part in least at attributable was injury party’s utory obligation. injurious. injurious. The California Supreme Court has found a sufficiently close connection to impose a duty even when a party other than the defendant was “the immediate and direct cause injury.” economic of plaintiff’s quences of negligence, rather than a restriction on liability for intentional conduct. than a conduct. for liability rather on intentional restriction of quences negligence, Although Clearview may have been merely reckless, rather alone than actions intentional, Clearview’s con- users, to caused activities its that harms privacy the cerning are the direct and proximate cause of the scenario plaintiffs might plausibly find the word. First, networking experts frequently describe as unethical behavior that stand- exclusion in the robots.txt express owners server that the preferences violates ard. As far back as 25 years ago, computer scientists proposed that an “ethical” in- teraction with a server should “respect the constraints placed upon it by server op- erators.” 43059-lcb_25-1 Sheet No. 104 Side B 03/17/2021 10:17:28 B 03/17/2021 104 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 105 Side A 03/17/2021 10:17:28

(Jan. 20, 20, (Jan. IMES T

of the data at is- at data the of , N.Y. , hiQ’s activities ap- activities hiQ’s price A CBS News feature on on feature News CBS A While clandestineoperations may ggest an awareness that its conduct from those of Clearview in a of those Clearview poten- from 2020), https://www.techdirt.com/articles/

described thetechnology as“rais[ing] 6,

Google Inc. Cookie Placement Consumer Priv. Consumer Placement Cookie Inc. Google hiQ

exposé In re In (Feb. that “there is evidence that LinkedIn has itself de- itself has that LinkedIn is that “there evidence note7. for aPreliminary Injunctionfor Clearview32,v. AI at Vermont ECHDIRT ECHDIRT , the parties were disputing the hiQ Clearview also instructed police departments that used used that departments police instructed also Clearview supra supra , T (Feb. 5, 2020), https://www.youtube.com/watch?v=-JkBM8n8ixI. (Feb. 5,2020), https://www.youtube.com/watch?v=-JkBM8n8ixI. hiQ UBE google-says-clearviews-site-scraping-is-wrong-clearview-reminds-google- T Google Google Says Clearview’s Site Scraping Is Wrong; Reminds Clearview Google UnmaskingCompany a that Wants Unmaskto AllUs CEO Speaks Out About Clearview AI’s Controversial Facial Recognition OU note 1. 1. note supra at 2:12, Y 2:12, at Hill, Hill, Kashmir Motion Vermont’s of State Markey Ton-That,to CBS News, the in framing issue these terms. I Rebeccaam to grateful Tushnet for Tim Cushing, Tim Cushing, Appellant’s Opening Brief at 7, hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985 (9th not whether anyone could perform the analytics service that hiQperformed. Third, popular reactions to the Clearview revelations suggest that its conduct Fourth, and perhaps most crucially, the relationship between the scraper’s con- scraper’s the between relationshipthe crucially, most perhaps and Fourth, Second, Second, Clearview’s business practices su 257 258 259 260 261 262 255 256 M K The Ninth Circuit noted in in The noted Circuit Ninth is blameworthy. The Vermont Attorney General asserted in a recent court filing that that filing court recent a in asserted General Attorney Vermont The blameworthy. is Clearview’s alleged conduct is “highly offensive and a ‘breach of social norms.’” also be consistent with prudent business also sense, with business be the they prudent view reinforce consistent that Clear- view understood that its conduct would attract disapproval if it were more widely known. In a letter to Clearview, Senator Ed Markey wrote, “Clearview’s product appears to to appears product “Clearview’s wrote, Markey Ed Senator Clearview, to a letter In it capable is that concerned am deeply andI risks, privacy chilling particularly pose assemble, move, can they that expectation Americans’ dismantling fundamentally of or simply appear in public without being identified.” Hill’s after shortly aired that Clearview questions.” ethical and moral sobering

Cir. 2019) (No. 17-16783). Cir. 2019)17-16783). (No. (quoting 2020) 10, Mar. Ct. Super. (Vt. Inc. Technology It It Scrapes Sites All the 20200205/14263943864/ Time 2021] 2021] it of visited. servers instructions robots.txt the with complied SCRAPING WEB 193 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM blame. blame. It can also distinguish the facts of duct duct and the platform’s own practices can illuminate the appropriate degree of violated prevailing norms. It listed a fake address as its place pseudonym. a used CEO of business, and its its services not to discuss them with the media, and appeared to modify its results herself. identify to efforts reporter’s a hinder to 2020), https://www.nytimes.com/2020/01/20/reader-center/insider-clearview-ai.html. veloped veloped a data analytics tool similar to hiQ’s products, undermining LinkedIn’s parently did not comply with the instructions in LinkedIn’s robots.txt file. robots.txt LinkedIn’s in instructions the with comply not did parently Litig.,2015)). 806125,129 Cir. F.3d (3d it-scrapes-sites-all-time.shtml. tially dispositive way. tially dispositive In sue, C Y 43059-lcb_25-1 Sheet No. 105 Side A 03/17/2021 10:17:28 A 03/17/2021 105 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 105 Side B 03/17/2021 10:17:28

. M K IV C Y C

. AL C note 217. 217. note New New York See In a scenario supra ,

In other words, hiQ’s This factdifferentiates featured on their profile, but subsequently subsequently but profile, their on featured The “trust your overlords” problem is a a is problem overlords” your “trust The e for biometric privacy expressed in Cali- previously These assurances are unsurprising. As the the As unsurprising. are assurances These § 150(a)(1). Substantively, the CCPA gives consumers rights to to rights consumers gives CCPA the Substantively, 150(a)(1). § Id. , 938 F.3d 985 (9th Cir. 2019) (“LinkedIn also points to specific user note 1. 1. note supra §§ 100(a), 105(a). The Act expressly includes facial recognition templates as covered as templates recognition facial includes expressly Act The 105(a). 100(a), §§ hiQ hiQ Labs, Inc. v. Corp., LinkedIn 273 F. Supp. 3d 1099, 1106 (N.D. Cal. 2017), Id. Christensen v. Superior Court, 820 P.2d 181, 198 (Cal. 1991). 820 v. Superior Christensen 1991). Court, 198181, (Cal. P.2d 2020, 1, January effective became which (CCPA), PrivacyAct Consumer California The hiQ Labs, Inc. v. LinkedIn Corp.,998 2019). 985,hiQ 938 (9th v. Cir. LinkedIn F.3dInc. Labs, See Work? It Does How and Facebook on Setting Recognition Face the Is What Hill, exposé notes, “technology that readily identifies everyone based on his or her or her on his based everyone identifies readily that “technology notes, exposé § 1798.155(b) (West2020). The Act does, however, provide a single private right of action, The The California Supreme Court weighs the potential of civil liability to deter In contrast, Facebook maintains a dedicated page of terms pertaining only to 4. California’s Public Policy Is to Prevent Biometric Privacy Harms Privacy Harms Biometric to Prevent Is Policy Public California’s 4. 267 268 263 264 265 266 ODE Clearview from hiQ: Whereas the latter sought to use LinkedIn’s data to provide an an provide to data LinkedIn’s use to sought latter the Whereas hiQ: from Clearview analytics service that might have competed with LinkedIn’s own, Clearview allegedly scraped Facebook images for a “taboo” purpose that and Facebook similarly- pursued. not had companies situated duty. tort novel a impose to whether determining when harm future and is not inconsistent with the solicitud recent privacy fornia’s omnibus statute. Times capable companies Tech privacy. of erosion radical its of because taboo been has face .” . . . so doing from refrained have tool a such releasing of harm future prevent to indispensable is context this in duty limited a Clearview, like significantly changed the state’s privacy laws. The CCPA is largely enforced Attorney General, by who is empowered the to pursue California statutory penalties for violations. C limited to data breaches. aff’d and remanded 194 194 claim that it has its members’ privacy interests in mind.” REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM facial facial recognition. Specifically, Facebook represents, “We don’t share that features your recognition face any [face] have don’t We you. but else anyone with template tell strangers who you are.” conduct did not pose a harm to LinkedIn users that differed in kind from an activity activity an from kind in differed that users LinkedIn to harm a pose not did conduct that LinkedIn itself would have undertaken. hiQ’s analytics service may not have given LinkedIn users exactly the the serve would degree ultimately tools the but have, of would offering competing LinkedIn’s control over their information that about employees. analytics employers providing purpose: same certain disclosures and deletions of collected. personal information about them “biometric that information” businesses and have provides that biometric consent is covered information “personal information,” and derived not referred uncovered firm law “publicly major without a available” at partner information. a and subjects’ uncertain, remains scope CCPA’s The (o)(2). 140(b),§§ complaints it has received objecting to the use of data by third parties. In particular, two users complained that information that they had [otherviewable removed, remained than hiQ].”). parties third via 43059-lcb_25-1 Sheet No. 105 Side B 03/17/2021 10:17:28 B 03/17/2021 105 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 106 Side A 03/17/2021 10:17:28

. A , 26 U. 26 , (Jan. 23, Crucially, Crucially, AWFARE But courts have have courts But , L ly intractable problem if one cannot even even cannot one if problem intractable ly The The Tort of Bad Faith in First-Party Insurance In the words of a leading article on the bad bad the on article leading a of words the In

Roger C. Henderson, Henderson, C. Roger 1 (1992). , Allen v. Jones, 104 Cal. App. 3d 207, 213 (1980). 207,104 AllenCal.(1980). 3d 213 v. App. Jones, , EFORM R at 7–8, 25–26. 25–26. 7–8, at 20. at 21. at

In effect, courts in the mid-twentieth century recognized that insurance insurance that recognized century mid-twentieth the in courts effect, In L.

See, e.g. See generally Id. Id. Id. https://www.lawfareblog.com/cyberlaw-podcast-ccpa-short-law-unintended-consequences J.

. The The tort of bad faith arose in response to a misalignment of incentives that The preceding sub-Section argued that platform users could be owed duties by by duties owed be could users platform that argued sub-Section preceding The 269 270 271 272 273 Bad Faith Breaches of Contractual Duties Can Be Tortious Tortious Be Can Duties Contractual of Breaches Faith Bad

M K ICH . verge. verge. The insurer is incentivized to take the case to trial: if it prevails against the to limited is liability its trial, at loses insurer the If nothing. pays it trial, at claimant if lose insurer inonly the to stands refuses insured, the The contrast, limit. policy’s of costs the bear will who he is it because limits, policy the within offer settlement a any excess liability assigned at trial. insured’s policy. If in the course of that litigation, the claimant offers to settle within within settle to offers claimant the litigation, that of course the in If policy. insured’s the limits of the insured’s policy, the incentives of the insurer and the insured di- 2020), Statute by Remedies the Reformulating and Culpability of Standard the Refining Transactions: M recovery for bad faith breach is not limited to contractual damages. Rather, the cause cause the Rather, damages. contractual to limited not is breach faith bad for recovery to it as “the worst-drafted law he’s worked with in over 30 years of practice . . .” Stewart Baker, 2021] 2021] an utter is it but right, own its in problem overlords! one’s trust C SCRAPING WEB 195 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM threatened threatened to undermine the modern architecture of liability insurance. Under a insured the of defense legal the handle to agree insurers contract, insurance liability in the forth set limits the to up claimants, third-party to directly claims pay to and or whether the CCPA might be interpreted to express a public policy disfavoring the private cause private thedisfavoring policy public a express to interpreted be might CCPA the whether or of action this Article proposes, would be premature and beyond this Article’s scope. discussion of whether the CCPA could provide remedies similar to those argued for in this Article, Article, this in for argued those to similar remedies provide could CCPA the whether of discussion parties who accept a platform’s terms. This sub-Section argues that a breach of such such of breach a that argues sub-Section This terms. platform’s a accept who parties permitted recovery for such damages in certain classes of contracts. The clearest ex- clearest The contracts. of classes in certain damages such for recovery permitted ample is the judge-made “tort of bad faith” in claims. first- and third-party insurance contracts “occupy a unique institutional roledepended well-being in emotional whose any parties modern, protect to capitalistic rules contract society” modified and contracts. these on The Cyberlaw Podcast: Is CCPA Short for “Law of Unintended Consequences”? Is Short for CCPA of “Law Podcast: Unintended The Cyberlaw faith tort, the insurer is “gambl[ing] with the insured’s money .” . . . a duty that impinges upon a privacy interest may permit a plaintiff to recover from from to recover plaintiff a permit may interest a privacy upon a duty impinges that do not of contract breaches Ordinarily, privity. it in is a indirect whom with party harm damages. or for other emotional tortious permit recovery C Y 43059-lcb_25-1 Sheet No. 106 Side A 03/17/2021 10:17:28 A 03/17/2021 106 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 106 Side B 03/17/2021 10:17:28 , M K But But C Y

The sec- The note 270, at 35–36. “a propounded gen- , the Court overruled a a overruled Court the , Insurance Bad Faith Law Faith Bad Insurance , permitted an insured to supra supra was “essentially a billing dis- a billing “essentially was Comunale v. Traders & General General & v. Traders Comunale Freeman & Mills In a move reminiscent of modern-day Accordingly,the Court’s opinionfocused

Freeman & Mills & Freeman first The case, Freeman & Mills v. Belcher v. Mills & Freeman note 275. 275. note supra note 270, at 36–37. , , held a liability insurer liable for the full amount of an adverse supra supra To avoid such an outcome, outcome, an such avoid To Today, courts in most jurisdictions recognize some form of a bad bad a of form some recognize jurisdictions most in courts Today,

, 426 P.2d at 179. 179. at P.2d 426 , at issue The in contract text accompanying note 218 information (discussing fiduciary proposals). Brent W. Brougher, Helen K. Michael & Brian Epps, Brougher et al., v. Belcher Mills, & Inc. Oil900Freeman 1995). 669, (Cal. 670 Co., P.2d Farmers Grp., Inc. v. Trimble, 691 P.2d 1138, 1142 (Colo. 1984) (describing “the at 689 (Mosk, J., concurring in part and dissenting in part). part). in dissenting and in part concurring J., (Mosk, 689 at 672. at Crisci See Henderson, See See Id. Id. Crisci v. Sec. Ins. Co. of New Haven, 426 P.2d 173, 179 (Cal. 1967). See 1958). Comunale v. Traders(Cal.201–02 328198, P.2d Gen. & Ins., Crisci v. Security Insurance Company of New Haven The California Supreme Court grew eager to prevent the unlimited expansion expansion the unlimited prevent to grew eager Court Supreme The California The The California Supreme Court pioneered the tort of bad faith in a series of The The proliferation of the bad faith tort tested its underlying doctrinal basis. 277 278 279 280 281 282 283 274 275 276 Glenn v. Fleming, 799 P.2d 79, 89 (Kan. 1990) (“Breach of fiduciary duty is a tort; however, tort; however, a is duty fiduciary of (“Breach 1990) 89 (Kan. 79, 799 P.2d Fleming, v. Glenn see information fiduciary proposals, courts also flirted with characterizing the insurer as as insurer the characterizing with flirted also courts proposals, fiduciary information a fiduciary. of the tort of bad faith. In 1995’s 1995’s In faith. bad of tort the of 1984 decision that had recognized a tort claim for bad faith denial of a contract’s existence. policy policy limits. ond, collect damages for emotional distress to attributable her insurer’s bad faith refusal of a settlement offer that left the insured exposed to a verdict that exceeded her

quasi-fiduciary nature of the insurance relationship”); Henderson, we have not this recognized tort in a bad faith and negligent defense against action an insurer.”); supra also see Westlaw 4-505-9149 (database Note 6,LawMay updated Practical Practice 2011). 196 196 stem- harms emotional for recover also may plaintiffs and in tort, sounds of action itself. faith breach bad the ming from REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM on dispelling a theory of tort liability for bad faith breaches of “ordinary” commer- of “ordinary” breaches faith for bad tort liability of a theory on dispelling cial contracts. three decisions known three as decisions the first known two of trilogy,” the “California which bear most proposal. Article’s on this directly Courts vacillated between describing it as a contractual or tort duty, measured by standard. negligence a or intentionality an pute between two commercial entities.” commercial two between pute eral rule precluding tort recovery for noninsurance contract breach, at other least in law the tort of principles from arising duty independent an of violation of absence faith claim in the insurance context. insurance the in faith claim Insurance Insurance Company judgment because the insurer wrongfully refused to defend its insured. 43059-lcb_25-1 Sheet No. 106 Side B 03/17/2021 10:17:28 B 03/17/2021 106 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 107 Side A 03/17/2021 10:17:28

But But cf.

t limitations

when differen when re of the contract, rather than the manner of . not . significant”not except s. Not unlike insurance contracts, terms of represents awarranted hesitation toexpand the badfaith tort opinion with approval and confirmed that intentional breaches Landwehr v. Citizens Tr. Co., 329 N.W.2d 411, 413 (Wis. 1983) (discussing (discussing 1983) (Wis. 413 411, N.W.2d 329 Co., Tr. Citizens v. Landwehr Other jurisdictions have acknowledged a similar possibility. a similar acknowledged have Other jurisdictions Rawlings Rawlings v. Apodaca, 726 P.2d 565, 576 (Ariz. 1986) (“[I]n special contractual See also See at 679–80 679–80 (internal citations omitted).at in part and dissentingJ., concurring in part).(Mosk, 681 at & Mills

Id. Id. 9841999). (Cal.Erlich 981978, P.2d v. Menezes, See Freeman & Mills & Freeman Thus, the doctrine underlying the tort of bad faith supports a tort claim against against claim tort a supports faith bad of tort the underlying doctrine the Thus, intentionally tortious behavior unique to the contractual setting that do not intoconventionalfit categories.tort Allowing possibilitythefor causes tort of of action outside conventional categories is consistent with the malleable and continuously evolving nature of the tort law. . . . [A] tortious breach of contract outside the insurance context may be found knowing or intending contract the breaches intentionally party one . . . when breachsevere,causementalwillaunmitigatableofsuch form the that inharm damages. consequential substantial or hardship, personal anguish, this “independent duty arising from tort law” can originate from torts other than those traditionally recognized at common law. There are some types of 284 285 286 287 M K to encompass all sorts of ordinary contracts. But its carveout for violations inde- its of for to But all of violations encompass sorts contracts. carveout ordinary action of cause limited a with incompatible it is not that means duties tort pendent for individuals aggrieved by Clearview’s alleged violations of terms of service. As separately, noted Mosk Justice entities that willfully breach material covenants in websites’ terms of service, and in in and service, of terms in websites’ covenants material breach willfully that entities so doing injure the users of those site and expectations. our our behavior life that structure are of service fixtures modern not could he if differently very crosswalk a approach would pedestrian prudent The Four years later, a majority of the California Supreme Court cited Justice Mosk’s Freeman known to cause severe mental anguish can be tortious even “outside the insurance context.” 2021] 2021] than the bad faith denial of the existence of, or liability under, the breached contract.” SCRAPING WEB 197 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

dealing, and when contract remedies serve only to encourage such conduct, it is appropriate to permit the damaged party to maintain an action in tort and to recover tort damages.”). Francis v. Lee Enters., Inc., 971 P.2d 707, 710 (Haw. 1999) (quoting Dold v. Outrigger Hotel, relationships, when one party intentionally breaches the implied covenant of good faith and fair 501 501 P.2d 368, 372 (Haw. 1972)) (abrogating a prior decision that had permitted tort actions where contracts are breached “in a wanton or reckless availability manner” of tortious damages depends on the and natu instead holding that the breach). the “continuing confusion cases inin which howalleged treat to the to law it is that as a has contract of breach a whether of question “substantive the that observing and improperly” performed been contract is actionable in tort” is “ordinarily . . periods apply).periods C Y 43059-lcb_25-1 Sheet No. 107 Side A 03/17/2021 10:17:28 A 03/17/2021 107 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 107 Side B 03/17/2021 10:17:28

, M K C Y NJUST U Fairfield

& see also, e.g. ESTATEMENT R . 1977); . See NST I cited with approval in ESTITUTION ESTITUTION R AW L

. OF ) M HIRD text accompanying note 195. note text accompanying (T and theoretical reasons. Because the tort see also supra supra also see ESTATEMENT ESTATEMENT R . 2011) (“Profitable interference with other protected see see NST § 652H, Reporter’s Note (A I AW

. IABILITY , 900 P.2d at 681 (Mosk, J., concurring in part and dissenting in M L (A

TRICT S

: ORTS § 44 cmt. b cmt. 44 § T For substantially the same reasons as the bad faith tort originated, then, then, originated, tort faith bad the as reasons same the substantially For OF ) Pleading and proof requirements as to privacy damages may be relatively accommodatingrelatively be may damages privacy to asrequirements proof and Pleading Freeman Freeman & Mills, Inc. The preceding sub-Sections of Section V set forth the doctrinal support for two two for support doctrinal the forth set V Section of sub-Sections preceding The Proposed language for the tort appears below: below: appears tort the for language Proposed 289 288 ECOND NRICHMENT

towards plaintiffs, and plaintiffs may be permitted to recover nominal damages. nominal recover to permitted be may plaintiffs and plaintiffs, towards (S E part). 198 198 rely on motorists to hold liability insurance, or if a motorist’s insurer could refuse of terms of pervasiveness in faith. service may bad claim The to liability his process . . . also put actors certain breaches the can cause on intentional “severe that notice mental anguish” that Justice Mosk identified as a hallmark of tortious breaches of REVIEW LAW CLARK & LEWIS contract. 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM a choice between damages for a privacy harm or a remedy in restitution that derives derives that restitution in remedy a or harm privacy a for damages between choice a profits. defendant’s a from propositions: propositions: that certain contracts can give rise to duties to and nonparties, that synthe- Section This damages. tortious to rise give can contracts certain of breaches sizes these strains of California jurisprudence to propose a narrow new tort. The proposed cause of action bridges the gap between two interdependent parties to different instantiations of the same contractual terms. In effect, it would allow a platform user harmed by a third party’s willful breach of that platform’s terms of that action of cause a is it words, other In injury. privacy a for suit a bring to service gives Internet users the redress against Clearview that they currently lack, and offers it this redress for the right doctrinal with plaintiffs provide to interpreted be could it wrong, independent an constitutes courts can recognize that certain bad faith, willful breaches of terms of service can damages. tortious to rise give Faith of Bad Tort The Breaches: Tortious and Parties to Third Duties D. Synthesizing Service of of Terms Breach v. v. Am. Photocopy Equip. Co., 291 of elements P.2d (proving 1989) App. Ct. (S.C. 194, 6 2, S.E.2d 383 Co., Ins. 198 Cas. Hartford v. Snakenberg (Cal. Dist. Ct. App. 1955); intrusion into private affairs establishes damages as Rohrbaugh v. Wal-Mart Stores, Inc., 572 a S.E.2d 881, 887 (W. Va. 2002). For the possibility matter of of law), tort, privacy a for remedyrestitutionary a interests, such as the claimant’s right of privacy, gives rise to a claim under § 44 if the benefit to susceptible is the of measurement”); defendant

43059-lcb_25-1 Sheet No. 107 Side B 03/17/2021 10:17:28 B 03/17/2021 107 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 108 Side A 03/17/2021 10:17:28 ). ). mens rea mens it contains three es- three contains it is aggravated by certain par- certain by aggravated is Awillfulness requirement lim- and that it violated the As covenant knowingly. and breach of a covenant, recklessness to or knowledge of to a or arecklessness of breach knowledge covenant,

ement guards against the boundary-definition issues the issues the boundary-definition against ement guards , 900 P.2d at 681 (Mosk, J., concurring in part and dissenting in , 900 P.2d at 683 (Mosk, J., concurring in part and dissenting in dependent of the breach.” the of dependent note 270, at 36. supra supra The requirement of willful breach of duty eliminates the possibility possibility the eliminates duty of breach willful of requirement The Clearview’s actions give ample ground to impute knowledge of the the of knowledge impute to ground ample give actions Clearview’s Cheek v. United States, 498 U.S. 192, 201 (1991) (defining willful498 U.S. Cheek192, States, (1991) 201 (defining v. United Freeman Freeman & Mills, Inc. See Freeman & Mills, Inc. Henderson, 2. Recklessness to or Knowledge of Consequences of Consequences Knowledge or to 2. Recklessness to Requiring be defendants at least reckless as to the harms they cause further 1. Willfulness of Breach Breach of Willfulness 1. “Willfulness,” for the purposes of the tort of bad faith breach of terms of ser- An actor who willfully breaches a covenant with a second party is liable to a third party for an invasion of privacy caused by the actor’s willful breach if: (a) the actor knows or recklessly disregards the possibility that the breached covenant is material to a contractual relationship between and thebreach, actor’s the of time secondthe at existed that party party third the and (b) the actor knows or recklessly disregards the possibility that its breach of that covenant is likely to be highly offensive to that third party. 290 291 292 293 M K ticularly egregious forms of intentionally injurious activity,” injurious forms intentionally of ticularly egregious harm its product might cause. The CEO did business under a pseudonym and, ap- and, a pseudonym under business The CEO did cause. might product harm its was aware of a particular covenant Justice Mosk observes, “the imposition of tort breaches remedies of for contract serves certain to punish intentional and deter business practices that constitute in wrongs social distinct that a defendant would be held liable simply for overlooking a provision of a lengthy lengthy a of provision a overlooking for simply liable held be would defendant a that terms of service agreement. Indeed, the tort requires a showing that the defendant threshold. its the proposed tort to only the most morally blameworthy behaviors. behaviors. blameworthy morally most the only to tort proposed the its mean- A tort. this under liability trigger will conduct blameworthy only that ensures requir intentionality ingful tort of bad faith has encountered in the insurance context, where diverging interpretations have suggested both an intentionality requirement and a negligence sential limitations: a willful sential limitations: tendency for that breach to harm a third party, and a materiality requirement for covenant. breached the vice, requires a showing that contract “law imposed a duty on the defendant, that the defendant knew of violated this duty, thatintentionally and and he voluntarily that duty.” part). part). 2021] 2021] SCRAPING WEB the “when situations those only it covers ensure To narrow. deliberately is tort The breach of is contract and in intentional bad faith, 199 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

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M K C Y even Other Other note 217. 217. note , https://help. supra , WITTER , T , https://www.facebook.com/ ACEBOOK Report Violations public reporting on his company’s ser- , F urt can use several factors to assess when a platforms all offer mechanisms for reporting reporting for mechanisms offer all platforms —like facial-recognition-for-hire—the more more facial-recognition-for-hire—the —like note 1. 1. note supra The more these representationssuggest thata practice , https://support.google.com/youtube/answer/2802057?hl=en (last note 1; Hill, UBE T

OU supra supra note 1. 1. note 1. note , Y supra supra Hill, Mac et al., How to Report Things on Facebook Work? It Does How and Facebook on Setting Recognition Face the Is What Hill, Moreover, once Clearview had attracted public attention, the CEO repre- CEO the attention, public attracted had Clearview once Moreover, Third, a court should assess the plaintiff’s expectations and the reasonableness and the reasonableness expectations assess plaintiff’s the ashould Third, court 3. Materiality of Breached Covenant Covenant of Breached Materiality 3. Obviously, not all willful breaches of terms of service should be tortious, Second, Second, a court should consider representations by a platform. The more ex- First, a court should evaluate the procedures and remedies available on the plat- the on available remedies and procedures the evaluate should court a First, 294 295 296 297 298 the the breaching party acts with knowledge of harms that might result. So, what is “taboo” to mainstream enterprises mainstream to “taboo” is twitter.com/en/rules-and-policies/twitter-report-violation (last visited Jan. Reporting Options 27, 2021); they should weigh in favor of tort liability for a willfully breaching party. party. breaching afor willfully liability tort of favor in weigh they should factor This of expectations. interlocks those with factors: theif a platform previous makes representations to a user about how that user’s data may be used, it is more materiality requirement filters out breaches that, while perhaps indecorous, are not are out filters not indecorous, requirement that, perhaps breaches while materiality so grave as to warrant tort liability. A co a platform. with relationship auser’s to be material to is likely covenant particular if differentiates a bad faith breach of a covenant not to scrape for facial recognition purposes from, say, a bad faith breach of a covenant to behave civilly? The tort’s help/181495968648557 (last visited Jan 27, 2021); 200 200 undermine to measures active took parently, vice. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM

more the evidence suggests that such assurances affect users’ decisions to use or not or not to use decisions users’ affect assurances such that more suggests the evidence should covenant a such of breach third-party a that likely more the platform, the use plicitly plicitly a assures its platform users that it will not take a action, particular and the visited Jan. 27, 2021). sented that the product was “strictly for law enforcement,” even though subsequent subsequent though even enforcement,” law for “strictly was product the that sented companies. private with relationships business Clearview’s documented reporting form to address violations of that covenant. If such procedures exist, and empower and exist, empower If of procedures such that covenant. form violations to address individual users to act directly, this fact already weighs against tort liability. The plat- violates that behavior that example, for suggests, mechanisms such of presence forms’ “community standards” would be unlikely to implicate this proposed tort. similar and Google, Twitter, Facebook, abusive behavior. abusive be actionable. Recall that Facebook explicitly assures users, “We that don’t features share recognition your face any have don’t We you. but else anyone with template are.” you who strangers tell 43059-lcb_25-1 Sheet No. 108 Side B 03/17/2021 10:17:28 B 03/17/2021 108 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 109 Side A 03/17/2021 10:17:28

Bily v. end up frustrating frustrating up end , https://help.twitter.com/en/rules-and- Could a Twitter user, aggrieved that a ifically, it always will ifically, asonable asonable for a user to expect never to be WITTER , T Mike Masnick has observed, “Content moderation moderation “Content observed, has Masnick Mike note 299. supra supra (Nov. 20, 2019, 9:31 AM), https://www.techdirt.com/articles/ https://www.techdirt.com/articles/ AM), 9:31 2019, 20, (Nov. , Masnick’s Impossibility Theorem: Content Moderation at Scale Is Impossible Impossible Is Scale at Moderation Content Theorem: Impossibility Masnick’s , the California Supreme Court considered whether accountants accountants whether considered Court Supreme California the , The Twitter Rules , ECHDIRT , T See, e.g. MikeMasnick, Rules Twitter The The most obvious rejoinder is the previous sub-Section’s argument that the 1. The Tort is Unlimited Unlimited is Tort The 1. boundlessness. potential its is tort proposed this to objection obvious most The Materiality is, admittedly, a somewhat protean and fact-specific requirement. 299 300 301 M K could could be held liable to third parties for or negligent intentional misrepresentations tort’s three requirements of willful breach, knowledge or recklessness as to likelihood likelihood to as recklessness or knowledge breach, willful of requirements three tort’s of harm, and with materiality tort the of comparing is instructive Also the liability. tort to breached rise give not covenant will breaches ensure that inconsequential a theduty that toSupreme Court proposed refused California recognize. In Co. & YoungArthur cle’s proposal isn’t credible. isn’t credible. proposal cle’s 20191111/23032743367/masnicks-impossibility-theorem-content-moderation-scale-is- policies/twitter-rules (last visited Jan. 27, 2021). The answer has to be “no,” of course—but unless that “no” is principled, this Arti- this principled, is “no” that unless course—but of “no,” be to answerThe has ‘proper’ ‘proper’ level of of moderation anyone.” at scale is impossible to at do is More impossible spec well. scale the represent accurately to fail always will and population the of segments large very impossible-to-do-well.shtml. 2021] 2021] reason- user’s a But use. about expectations reasonable user’s that influence to likely able expectations about data use may also derive from features offers implications in and harassment platforms’ prohibits platform a if is, That affordances. and terms to block and report harassers, it is not re platform. on the user harassedanother by SCRAPING WEB 201 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

to Do Well fellow user appears to have violated Twitter’s prohibition on “harassment,” take ac- take “harassment,” on prohibition Twitter’s violated have to appears user fellow tion against the harasser directly, pursuant to the covenants in Twitter’s rules? of service. of service. Objections Threshold Some E. Answering Internet platforms’ terms of service contain a lot whole of covenants, and it would best The another. one against them of all enforce users let to untenable be obviously illustrations of the potential problem are the community standards that platforms users. on impose purportedly But it is easy to ascertain in the sorts of outrageous, willful breaches that are properly properly are that breaches willful outrageous, of sorts the in ascertain to easy is it But subject to this proposed tort, because outrage over a violated covenant is likely to above, forth set factors the applying By covenant. that of materiality the to correlate terms of breach faith bad of abuse of tort the against a bulwark courts establish can C Y 43059-lcb_25-1 Sheet No. 109 Side A 03/17/2021 10:17:28 A 03/17/2021 109 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 109 Side B 03/17/2021 10:17:28 M K C Y plain- be liable liable be isely isely in order could constitutive of constitutive on all three factors. factors. three all on In contrast, Clearview’s As summarized in a 2016 a 2016 in As summarized Bily . izes izes a duty prec Bily emphasized three factors: (1) the the (1) factors: three emphasized held that auditors auditors that held Bily Bily Bily , Bily y to discourage third parties from breaching breaching from parties third discourage to y While While and and Clearview differs from from differs Clearview on. In contrast, this Article’s proposed tort places no ’s concern about how a novel tort duty might affect the the affect might duty tort a novel how about concern ’s Biakanja Liability for intentional conduct like Clearview’s poses a a poses Clearview’s like conduct intentional for Liability Bily the sine qua non of the plaintiffs’ alleged injuries. Its conduct is is conduct Its injuries. alleged plaintiffs’ the of non qua sine the is treated treated it as significant that reliance on an erroneous audit was not contractual contractual protections, ordinary platform users have minimal re- . Bily Bily , 834 P.2d at 763. 763. at P.2d 834 , at 747.at at 773. 773. at Bily Bily v. Arthur Young & Co., 834 P.2d 745, 746–47 (Cal. 1992). Co., & 834Bily P.2dv. 1992). Arthur746–47 745, (Cal. Young Id. CentinelaFreeman Emergency Med.Assocs. v. HealthNet ofCalifornia, Inc., 382 P.3d Bily Id. ex ante Third, and finally, finally, and Third, Second, if anything, the relative lack of sophistication of ordinary Internet users Internet ordinary of sophistication of lack relative the anything, if Second, First, 302 303 304 305 306 , the party that would have been subject to a new duty was the party offering the the offering party the was duty new a to subject been have would that party the , consensual, surreptitious, industrial-scale facial recognition. recognition. facial industrial-scale surreptitious, consensual, availability availability of professional services has no good parallel in the Clearview facts. In Bily accounting services in questi new duties on platforms Rather, themselves. it recogn to eliminate a class of services that should not have existed in the first place: non- 1116, 2016). 1130 (Cal. 202 202 in of the audit preparation reports. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM

may have the resources, the sophistication, and the incentives to insulate themselves themselves insulate to incentives the and sophistication, the resources, the have may with abilit no and sophistication, low sources, of your “trust the dynamics ways. fundamental The in terms platforms’ deleterious overlords” problem mean that platform users are, on balance, worse equipped to in were the plaintiffs than precautions advance take the “sine qua non” of the plaintiff’s ill-fated investments. ill-fated plaintiff’s the of non” qua “sine the would negligence mere for liability than liability disproportionate of risk smaller far inhave weighs in favor of tort liability. Unlike investors undertaking due diligence, who possibility possibility of “vast numbers of suits and limitless financial liability far out of pro- portion to its fault[,]” (2) the sophistication of the plaintiffs and their ability to and “control adjust their risks by rather and than contract rely on tort liability[,]” (3) “an increase in the cost and decrease in the availability of” the contracts that duty. novel the include would alleged conduct alleged conduct is it injury, plaintiffs’ the to connect[ed]” “close[ly] not merely tiffs’ injury. As the California Supreme Court observed, “moral force of the argument against unlimited liability . . . and the uncertain connection between [plaintiffs’ injuries and defendants’ conduct] pale as issue.” in is misconduct policy factors when intentional decision that applied both applied that decision for intentional misrepresentations, it to declined a assumed hold that accountants for misrepresentations, intentional audits. on rely might who parties third to duty general 43059-lcb_25-1 Sheet No. 109 Side B 03/17/2021 10:17:28 B 03/17/2021 109 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 110 Side A 03/17/2021 10:17:28

, , FindFace worked like like worked FindFace Limiting the tort to vio- to tort the Limiting . 1049, 1061 (2000). EV R

. TAN , 52 S 52 ,

. (Apr. 22, 2016), https://advox.globalvoices.org/ e-becomes-a-weapon-against-russian-porn-actresses/. DVOC A How Russia’s New Facial Recognition App Could End Anonymity Facial Recognition Service Becomes a Weapon Against Russian Porn Twitter Twitter Bans Russian Face Recognition App Used to Harass Porn Stars Freedom Freedom of Speech and Privacy: Information The Troubling Implications note 1. 1. note OICES V supra Indeed, a third party who uncovers information obtained in confi- in obtained information uncovers who party third a Indeed, LOBAL (May 23, 2016), https://www.theatlantic.com/technology/archive/2016/05/find-

(Dec. 16, 2016, 12:15 PM), https://www.vocativ.com/384720/twitter-russian-face- Janus Kopfstein, Kevin Rothrock, Eugene Volokh, Id. Jonathan Jonathan Frankle, , G 2. The Tort is Too Limited Limited Too is Tort The 2. The previous Section’s reassurances about the tort’s limited scope may have Thus, even if the only conduct this Article’s proposed tort could regulate were were regulate tort could proposed Article’s this conduct the only if Thus, even 308 309 310 311 307 M K OCATIV TLANTIC proved too much. Can this proposed too proved tort much. Can do any this proposed work at all? it Well, can certainly offer plaintiffs redress against Clearview AI and numerous other bad actors. The of facial recog- an wasinnovator not that Clearview readers informed Introduction nition algorithms nor an innovator in building platforms for licensed data collection. But Clearview did not even originate its strategy of brazen scraping. In the 2020 headlines, may Clearview be touted as “The Secretive Company That Might End Privacy as We Know It,” but in 2016, an app called FindFace was the “New Facial Recognition App [That] Could End Anonymity.” restrict speech by parties with whom they have a speech-restricting contract, express express contract, speech-restricting a have they whom with parties by speech restrict or implied.” dence dence “simply hasn’t agreed to anything that would waive its First rights” such disclosing. from that it prevented be could Amendment One of the more infamous uses of the Russian app FindFace was a message board’s board’s a message was FindFace app Russian of the uses infamous more of the One campaign to identify Russian women who appear in pornography or offer escort services, cross-reference their images with social acquaintances. their and women media profiles, and harass the V Actresses 2016/04/22/facial-recognition-servic of a Right to Stop People from Speaking About You 2021] 2021] SCRAPING WEB 203 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM lations lations of covenants that actors have agreed to is just that: a limitation. A narrow it but plaintiffs, aggrieved some for redress meaningful offer indeed would tort new Clearview, Clearview, except that FindFace offered its functionality to the general public and instead it of photos fromFacebook. used VKontakte Russian social the network recognized recognized more generally in conceptions of people privacy lets that “only derive privacy of from model contractual contractual a concedes, Volokh Eugene As terms. scraping for facial recognition, the tort applies to terms more of than influence just a pervasive single, the real-life around grow to continue lives our as But defendant. of service, other tortious breaches of those terms will surely become evident. It is have others that narrowness a reflects tort this of narrowness the that however, true, face/483962/; Hill, Hill, face/483962/; recognition-porn-stars/ (describing FindFace’s data source as scraping). A C Y 43059-lcb_25-1 Sheet No. 110 Side A 03/17/2021 10:17:28 A 03/17/2021 110 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 110 Side B 03/17/2021 10:17:28 M K C Y , means Courts are And Clear- And per se I personally used scrap- these different speech interests Fortunately, the modesty of this of this the modesty Fortunately, Sandvig v. Sessions, 315 F. Supp. 3d 1, 1, 3d Supp. F. 315 Sessions, v. Sandvig , https://www.zotero.org/ , (last https://www.zotero.org/ visited Jan. io in which people perceive themselves themselves perceive people which in io see also OTERO mited mited forms of popular objection to facial Who’s Using Your Face? The Ugly Truth About Facial Facial About Truth Ugly The Face? Your Using Who’s Popular benchmarks for academic research research academic for benchmarks Popular , Z thin the ambit of the First Amendment.” First the of ambit the thin Retrievable Images on Social Media Platforms: A Call for a New note 261, at 7:00. 7:00. at 261, note (Sept. 18, 2019), https://www.ft.com/content/cf19b956-60a2-11e9- 2019), 18, (Sept. supra IMES T 315 F. Supp. 3d at 15–16. 15–16. 3153d F. at Supp.

. , IN Zahra Takhshid, CBS News, , F

Madhumita Murgia & Max Harlow,Max & MurgiaMadhumita See Your Personal Research Assistant Sandvig See See Letter from Jameel Jaffer, Exec. Dir., Knight First Amend. Inst., to Mark Zuckerberg, There are plenty of reasons that actors good and bad, commercial and non- Balancing the constitutional safeguards for 3. What About the First Amendment? Amendment? First the About What 3. There There is reason another for limited reach: this it proposal’s has to endeavored 313 314 315 316 317 312 b285-3acd5d43599e. commercial, might engage in scraping. Journalists and researchers scrape websites to websites scrape researchers and Journalists scraping. in engage might commercial, collect data for study and reportage. view view itself asserts that its by scraping are the protected activities fully First Amend- ment. against the various forms of criminal and civil liability that scraping might trigger is is trigger might scraping that liability civil and criminal of forms various the against beyond the scope of this Article. Scholars who have proposed more sweeping legal sweeping more address to had also have harms privacy online rectify to innovations proposals. their to objections First Amendment CEO, CEO, documents/d6ebc73dd9/Facebook_Letter.pdf; Facebook scraping). in interests research (discussing 2018) (D.D.C. 15–16 (Aug. 6, 2018), https://s3.amazonaws.com/kfai-documents/ 2021). 27, to be victimized. But a focus im- on to form easier are can that also redress for give tighter suggestions explanations and for why objectionable, is conduct particular plement. 204 204 fiduci- information of proponents that changes comprehensive the establish cannot advocated. have regulation market or aries craft an accurate theory of harm, individuals’ in and harm the a anchor to suitable straightforward more route be REVIEW LAW CLARK & LEWIS tomight It redress, forms. doctrinal using accepted attestations that they feel Instead outraged of by facial citing that recognition. outrage directly, this Article invokes the li the in harm Finding service. of terms platforms’ in codified up end that recognition 25.1 [Vol. willful breach of a covenant, rather than the provocation of outrage scenar every capture not will proposal the that LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM

gathering “plausibly falls wi falls “plausibly gathering beginning to take note of scraping’s significant role in modern public discourse. A federal district court in observed 2018 that scraping as a method of information- ing software to conduct research and archive materials for this Article. this for materials archive and research conduct to software ing Recognition in facial recognition derive from large-scale web scraping. web large-scale from derive recognition facial in 43059-lcb_25-1 Sheet No. 110 Side B 03/17/2021 10:17:28 B 03/17/2021 110 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 111 Side A 03/17/2021 10:17:28 see see , the who who Some Some

newsgatherers This Article’s proposed proposed Article’s This

nstitutional scrutiny that strictly contractual strictly that scrutiny nstitutional Cohen v. Cowles Media Company Andappellate courts haveeven upheld In In . 139, 148 (2020) (addressing First Amendment objections to a EV R

official power of the Minnesota courts. Under our cases, that is enough L. note 310, at1057.

. UFF Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991) (“The initial question Co., v. Cohen Cowles 501 question Media 668 663, initial (“The (1991) U.S. supra supra , 501 U.S. at 668, 671–72. 671–72. 668, at U.S. 501 , See Merrell v. Renier, No. C06-404JLR, 2006 WL 3337368, at *8 (W.D. Wash. Nov. Cent. Hardware Co. v. Nat’l Labor Relations Bd., 407Cent. Hardware547 Relations 539,v. Co. (1972). Nat’l U.S. Labor , 68 B Food Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 521 (4th Cir. 1999); See See Cohen See Volokh, Volokh, However,non-contractual codrawsuitsmay There There is some to reason in believe that prohibitions terms of scraping service, The tort of bad faith breach of terms of service is relatively unlikely to conflict to conflict unlikely is relatively of service terms of breach faith bad of The tort 320 321 322 323 318 319 Desnick Desnick v. Am. Broad. Companies, Inc., 44 F.3d 1345, 1355 (7th Cir. 1995) (Posner, C.J.) M K procured information through forbidden means. forbidden through information procured tort tort actions for trespass and breach of a duty of loyalty against at least as applied to actors like Clearview, may not with conflict the First Amend- ment. A First Amendment violation cannot occur without “state action.” 16, 2006) (listing cases). 16,(listing 2006) also (dismissing privacy, trespass, and fraud claims brought by medical broadcast,claimexplicitlypotentialtelevisionbut that breachviabilitythe contract a noting of of practitioners depicted in a the plaintiffs had voluntarily dismissed). Privacy Tort suits may not. within action’ ‘state involves estoppel promissory for of action cause private a we is face whether are Amendment First the of protections the that such Amendment Fourteenth the of meaning the triggered. . . . In this case, the Minnesota Supreme Court held that if Cohen could recover at all platform. platform. Thus, the tort’s compatibility with the First Amendment correlates to Amendment. First the with compatibility covenants’ anti-scraping courts have held that judicial enforcement of speech-restrictive covenants between Supreme Court acknowledged that a promissory estoppel claim against a reporter that but action, state constitute would to not promising after source a revealed who constitutional. be would action state such 2021] 2021] with conflict would tort its the proposed chances that diminishes proposal Article’s cre- proposal Article’s this why addresses briefly Section This Amendment. First the friction. Amendment First ates minimal with the First Amendment because courts are quite deferential to limitations on speech imposed by contracts between private parties. Eugene Volokh has observed SCRAPING WEB are “emi- implied or contracts express to pursuant that enforced speech restrictions nently defensible under existing free speech doctrine.” tort simply provides that a duty that that a of users defendant to had circumstances, narrow assumed in in and impliedly relation owed, also to is platform an online 205 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM

proposed new tort).proposed privacy private parties is not state action at all. be enforced through the the through be enforced Amendment.”). the Fourteenth of purposes for ‘state action’ constitute to it would be on the theory of promissory estoppel, a state-law doctrine which, in the absence of a would obligations legal These parties. the by explicitlyassumed never obligations creates contract, C Y 43059-lcb_25-1 Sheet No. 111 Side A 03/17/2021 10:17:28 A 03/17/2021 111 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 111 Side B 03/17/2021 10:17:28 M K C Y qua VI. CONCLUSION CONCLUSION VI. possible common lawtheories that courts must nowadapt decision decision marks, at least for the time being, the reascension of common hiQ Of course, courts remain free to find formal defects in terms of service But this proposal’s limitations are also its strengths. Its modest scope and prec-andscope modestIts strengths. itsproposal’salsolimitations are this But The proposed tort would allow users of an Internet platform to sue third parties parties third sue to platform Internet an of users allow would tort proposed The The Clearview facial recognition scandal is a monumental breach of privacy, 206 206 REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:27 PM a century ago, may properly recognize some common law remedies for present-day for present-day law common remedies some a ago, mayrecognize properly century misconduct. Section IV catalogued familiar common law claims to argue that no cuit’s law causes of action in a field that had been dominated by the CFAA. Section III of tangle the that showed to cyberspace resembles the strained property and contract formalism that privacy scholars and plaintiffs reckoned with at the turn of over the set twentieth predecessors century. It their of sug- some example the following courts, modern that gested contracts, or to conclude that anti-scraping covenants are otherwise unenforceable. or areunenforceable. contracts, that otherwise covenants to anti-scraping conclude Judicial tort. proposed Article’s this undermine just not would conclusions such But would service of terms platforms’ online of substance the or form the of repudiation revisions significant More enterprise. and law of areas established more many disturb harms privacy the fully address to necessary be indeed may online ordering private of this Article chronicles. The point is not that this Article’s proposal can or should endure radical changes in jurisprudence, but rather that its proposed tort can serve eco- information online to our changes more comprehensive of as alieu in stopgap system. Internet users who must “trust their overlords” to police harmful behavior on their on behavior to police their overlords” harmful their users who “trust Internet must in depends platforms, part large the on In- tort’s theof viability dominant scruples enterprises. ternet edential grounding make it less likely to succumb to constitutional challenges or a sclerotic political process. Unlike more sweeping interventions, this Article’s proposed tort is within a court’s power to Indeed, recognize. the flows proposal from of character special the that recognition the doctrines: law common established two certain bilateral contracts can engender duties to third parties, and the recognition established property, tort, or contract claim fully captures pro- the V Section harm users. that Internet conduct individual on wreaks behavior alleged Clearview’s like without remedy proper a with plaintiffs aggrieved provide can that tort new a posed coherence. theoretical or fidelity sacrificing doctrinal plat- that in covenants material certain breaching willfully by harm them cause who form’s terms of service. This tort is not a panacea. It does not alter the systemic market- media social inequitable and an extractive to contribute that characteristics place. It will offer relief only on narrow sets of facts. much And, like the ordinary and and it came to light just months after the Ninth Circuit narrowed the law that seemed to offer the clearest route to redress. Section II argued that the Ninth Cir- 43059-lcb_25-1 Sheet No. 111 Side B 03/17/2021 10:17:28 B 03/17/2021 111 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 112 Side A 03/17/2021 10:17:28

M K 2021] 2021] rise faith gives breach that their bad are significant so socially that contracts certain social commercial of paradigm the shift not will proposal This damages. to tortious stop- a provides proposal Article’s this remains, paradigm that as long so But media. take root. reforms systemic until more interests privacy protect to gap SCRAPING WEB 207 LCB_25_1_Art_4_Sobel (Do Not Delete) 3/3/2021 7:28 PM C Y 43059-lcb_25-1 Sheet No. 112 Side A 03/17/2021 10:17:28 A 03/17/2021 112 Side Sheet No. 43059-lcb_25-1