February 19, 2017

Free Law Project Partnering in Stewardship of RECAP

More than five years ago, I spoke at CITP about the US Federal Courts electronic access system called PACER. I noted that despite centuries of precedent stating that the public should have access to the law as openly and freely as possible, the courts were charging unreasonable rates for access to the public record. As it happened, David Robinson, Harlan Yu, Bill Zeller, and Ed Felten had recently written their paper “Government Data and the Invisible Hand“, arguing that:

…the executive branch should focus on creating a simple, reliable and publicly accessible infrastructure that exposes the underlying data. Private actors, either nonprofit or commercial, are better suited to deliver government information to citizens and can constantly create and reshape the tools individuals use to find and leverage public data.

After my talk, Harlan Yu and Tim Lee approached me with an idea to make millions of court records available for free: a simple browser extension that made it easy for individuals to share the records that they had purchased from PACER with others who were looking for the same records. The idea became RECAP (“turning PACER around”), and the tool has indeed helped to liberate millions of public records in the years since then. But the time has come to turn over our stewardship, and we could not be more pleased that CITP is announcing a new partnership with Free Law Project to take over and expand upon RECAP.
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Google Spain and the “Right to Be Forgotten”

The European Court of Justice (CJEU) has decided the Google Spain case, which involves the “right to be forgotten” on the Internet. The case was brought by Mario Costeja González, a lawyer who, back in 1998, had unpaid debts that resulted in the attachment and public auction of his real estate. Notices of the auctions, including Mr. Costeja’s name, were published in a Spanish newspaper that was later made available online. Google indexed the newspaper’s website, and links to pages containing the announcements appeared in search results when Mr. Costeja’s name was queried. After failing in his effort to have the newspaper publisher remove the announcements from its website, Mr. Costeja asked Google not to return search results relating to the auction. Google refused, and Mr. Costeja filed a complaint with Spanish data protection authorities, the AEPD. In 2010, the AEPD ordered Google to de-index the pages. In the same ruling, the AEPD declined to order the newspaper publisher to take any action concerning the primary content, because the publication of the information by the press was legally justified. In other words, it was legal in the AEPD’s view for the newspaper to publish the information but a violation of privacy law for Google to help people find it. Google appealed the AEPD’s decision, and the appeal was referred by the Spanish court to the CJEU for a decision on whether Google’s publication of the search results violates the EU Data Protection Directive.
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I Join the EFF and Others in Calling for Craigslist to Drop CFAA Claims

[Cross-posted on my blog, Managing Miracles]

Craigslist is suing several companies that scrape data from Craigslist advertisements. These companies, like Padmapper and 3taps, repurpose the data in order to provide more useful ways of searching through the ads. I have written about this in earlier posts, “Dear Craig: Voluntarily Dismiss with Prejudice,” and “A Response to Jerry: Craig Should Still Dismiss.” Fundamentally, I think that the company’s tactic of litigating against perceived competitors is bad for Craigslist (because it limits the reach of its users’ ads and thus the success of Craigslist), it is bad for the law and policy of the web (because scraping of public web sites has historically been a well-established and permissible practice that beneficially spreads public information), and is in bad taste (given Craiglist’s ethos of doing well by doing good).

One of the most problematic aspects of the lawsuit is the set of claims under the Computer Fraud and Abuse Act (CFAA) and its California state-law counterpart. The CFAA, passed in 1986, introduces criminal and civil penalties for “unauthorized access” to “protected computers.” The CFAA was largely a reaction to generalized fear of “computer hacking,” and it did not envision the public internet as we know it today. Nevertheless, some have tried to apply the CFAA to public web sites. This approach has been widely frowned upon by both the tech community and the courts. For instance, the Center for Democracy and Technology (CDT) and the Electronic Frontier Foundation (EFF) are actively pushing to reform the CFAA because it has been subject to prosecutorial abuse. Craigslist has nevertheless alleged violations of the CFAA based on access to their public web site.

Today I signed on to an an amicus brief written by the EFF–which was also co-signed by other scholars in the field–that urges the court to dismiss these ill-advised CFAA claims. The brief reads, in part:
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