The Innovation of Litigation.

Are you collecting your jurors’ social media data? How and why you do it may be an issue (Part 2)

No one wants to be the next Cambridge Analytics–what do litigators need to be concerned with re: scraping social media for juicy trial strategy tidbits? This is part two of a two-part series that discusses issues in collecting a juror’s social media data. Click here for part one.

In part 1 of this series we discussed the Facebook/Cambridge Analytica scandal and what that means for social media platforms selling data to third party vendors, such as data analytics firms. This post discusses whether a third party, such as an attorney, can collect the data of a social media user, such as a juror, on its own.

As we explain below, there is a possibility that certain methods of collecting information or collection in and of itself could violate the terms of service of a website, the Computer Fraud and Abuse Act (CFAA), or state and local rules. That being said, this is a gray area and we are not aware of any attorneys being charged under the CFAA for collecting juror’s social media data for litigation practices.  

LinkedIn and hiQ Labs Data Controversy

Like the Facebook/Cambridge Analytica scandal, collection of data is also in dispute between LinkedIn and hiQ, but the cases are distinguishable. In the Facebook/Cambridge Analytics scandal, the “victims” are the social media users. In the LinkedIn/hiQ data controversy, the victims are the social media platforms themselves, specifically LinkedIn.

Unlike the Facebook scandal, LinkedIn did not give permission to hiQ to collect its users’ data. Instead, hiQ, a data analytics firm specializing in human resource optimization, utilized bots to scrape, or automatically collect, public profile data of users in violation of LinkedIn’s user policy. hiQ then used the data to create its “Skill Mapper” and “Keeper” products, which hiQ markets to employers, talent acquisition, and management teams. Skill Mapper is supposed to notify employers of gaps in employee skills while Keeper is supposed to help employers more effectively retain employee talent.

In August 2017, U.S. District Judge of the Northern District of California Edward Chen enjoined LinkedIn from blocking hiQ from collecting data from public LinkedIn profiles, but LinkedIn appealed the decision. The Ninth Circuit heard oral arguments regarding the dispute on March 15, 2018, but has not yet issued an opinion on the matter.

Why the LinkedIn and hiQ Labs Data controversy matters:

While the Facebook/Cambridge Analytica scandal is more likely to influence future data collection practices, the LinkedIn/hiQ controversy has a more immediate effect on attorney collection of social media user profiles under the CFAA.

Facebook and Craigslist, and now LinkedIn, have used the CFAA to block scraping of websites. In Facebook, Inc. v. Power Ventures, Inc., the Ninth circuit declared two general rules in analyzing authorization under the CFAA:

In Power Ventures, the court ultimately ruled that Power was not in violation of the CFAA when it began scraping Facebook user data. However, once Facebook sent Power a cease and desist letter, all of Power’s subsequent scraping was a violation of the CFAA.

What does all of this mean for attorneys?

It means that currently, under the Power Venture standard, attorneys who violate the Terms of Service or User Agreements and scrape juror information from social media, without more, will not be held liable under the CFAA. This seems to assume that users who scrape data from a website do not generally know the Terms of Service before doing so. That being said, according to the American Bar Association Formal Opinion 466 (which discusses viewing a juror’s social media data for litigation purposes), attorneys should read the terms of service of any website that they access. Whether violating the terms of service in furtherance of a litigation strategy is ethical is something the ABA has not commented on.

Attorneys will more likely run into problems under the CFAA if the social media platform explicitly tells the collector to stop scraping social media data or blocks the collector’s IP address and the collector continues to collect. While it is unlikely that a person collecting juror’s social media data manually will grab the attention of a social media platform, an innovative attorney using bots to crawl through pages and collect data may trigger a response.

But an attorney’s collection of a juror’s social media data is for justice. Doesn’t that matter?

It is arguable that an attorney’s collection of jurors’ social media data that violates the Terms of Service won’t grab the attention of the social media platform under most circumstances. For example, a social media platform is unlikely to take action if the attorney only scrapes data for short time periods, only uses the data for limited periods of time, and, crucially, does not use the data to create a product for sale. In previous cases, social media platforms sued individuals under the CFAA when those individuals or entities were continuously and automatically scraping content to create a database to be sold as a commercial product. Collecting social media data for juror selection is not in itself a product, but it can be if an entity is offering this as a service. This is when the collection of data is more likely to draw the attention of a social media platform—and possibly a lawsuit.

However, even putting time limits on the use of data can raise issues. For example, what is a limited period of time? Is it for the duration of voir dire? The entire trial? Appellate reasons? Or can you maintain a database to understand juror decisions in future cases involving the same issues? These issues are completely speculative, but are worth noting as the data mining and privacy continue to be relevant issues.

Wait, didn’t the California District Judge allow hiQ to collect LinkedIn’s user’s data? Doesn’t that mean attorneys can collect juror’s social media data without violating the CFAA?

Maybe. Judge Chen’s decision seems to contradict the rulings made in Power Venture. Until the Ninth Circuit makes a decision, we don’t know if scraping will continue to be considered a violation of the CFAA. Even if attorneys are not violating the CFAA, however, they may still be violating the Terms of Service of a website.

Conclusion

If you haven’t guessed by now, whether or not you can collect juror information is an ethical grey area. As far as we can tell, it is not an issue that has been explicitly discussed by any court or the ABA. However, as more people discuss data privacy and demand more transparency in how their data is used, it is an issue that you should be aware of, especially when it is common practice among attorneys to use a juror’s social media data to inform a litigation strategy.

Below, we have listed the terms of service regarding scraping of social media users’ content. As you will see, the act of collecting data by itself does not violate most platforms’ Terms of Service. Most platforms only ban the automatic methods (i.e. use of bots) to scrape data. We hope that this information can help you make the right decision on gathering social media user data for litigation purposes. As a side note, please make sure you verify the terms are the most up to date before using this information to make a decision about scraping.

A sample of the Terms of Service used by popular social media platforms regarding scraping:

Facebook: “You will not collect users’ content or information, or otherwise access Facebook, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior permission.” (Date of Last Revision: January 30, 2015).

Instagram: “10. We prohibit crawling, scraping, caching or otherwise accessing any content on the Service via automated means, including but not limited to, user profiles and photos (except as may be the result of standard search engine protocols or technologies used by a search engine with Instagram’s express consent).” (Effective: January 19, 2013).

LinkedIn: “You agree that you will not: … Develop, support or use software, devices, scripts, robots, or any other means or processes (including crawlers, browser plugins and add-ons, or any other technology or manual work) to scrape the Services or otherwise copy profiles and other data from the Services….” (Effective: June 7, 2017).

Snapchat: “By using the Services, you agree that: … You will not use any robot, spider, crawler, scraper, or other automated means or interface to access the Services or extract other users’ information. You will not use or develop any third-party applications that interact with the Services or other users’ content or information without our written consent.” (Effective: September 26, 2017).

Tumblr: “You may not, without express prior written permission, do any of the following while accessing or using the Services: … (c) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Tumblr (and only pursuant to those terms and conditions) or unless permitted by Tumblr’s robots.txt file or other robot exclusion mechanisms; (d) scrape the Services, and particularly scrape Content….” (Last Modified: September 26, 2017).

Twitter: “You may not do any of the following while accessing or using the Services: … (iii) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Twitter (and only pursuant to the applicable terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Twitter (NOTE: crawling the Services is permissible if done in accordance with the provisions of the robots.txt file, however, scraping the Services without the prior consent of Twitter is expressly prohibited)….” (Effective: October 2, 2017).

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