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Data Scraping and the Importance of Well-Drafted Website Terms of Use

By October 14, 2014Article
Data scraping is a method of extracting large amounts of data from websites. To accomplish this, data scraping programs employ automated “bots” or “spiders” that harvest the information contained on your website and convert that information to their own use, commercial or otherwise.  
Surprisingly, according to a report issued by Incapsula (a Web security company) in December 2013, bot traffic constitutes 61.5 percent of all website visitors. While not all bot traffic is bad (think Google search bots), the Incapsula report claims that nearly 30 percent of all bot traffic is malicious in nature, with five percent of all traffic coming in the form of data-scraping software.
The problem with data scraping
According to the Incapsula report, the damages caused by scraping bots includes:
• Website content theft and duplication
• Theft of email addresses for spam purposes
• The reverse engineering of pricing and business models.
These activities in turn could lead to increased bandwidth usage or network problems and could ultimately lead to complaints by legitimate users of the site.
How to prevent data scraping
Unfortunately, preventing data scraping is a difficult task in that the technology used generally mimics the usage of a real person. There are, however, tools in place to help a website owner combat improper data scraping of its site. Technologies such as Distil Networks are now being developed that can block and track those bots and spiders. 
Also, you should know, especially if the commercial exploitation of your data by a scraper causes you financial harm, numerous legal causes of action exist that can be used in a lawsuit against a party that illegally scrapes data from your site. These include, but are not limited to copyright infringement, breach of contract and violations of the Computer Fraud and Abuse Act (CFAA). 
If you want to utilize these causes of action, especially a breach of contract or CFAA claim, your website must first have in place an enforceable “Terms of Use” or “Terms of Service” governing the usage of its contents.
Causes of action
1. Breach of Contract. Depending on its drafting and placement on a website, courts are saying that a “Terms of Use” can be considered a valid and enforceable contract between the owner of the website and its user. If the “Terms of Use” includes a provision prohibiting the use of Web and/or data-scraping technology on the website, a cause of action will more than likely stand against a person employing such methods of obtaining data.
2. Computer Fraud and Abuse Act.  The Computer Fraud and Abuse Act (18 U.S. Code § 1030(a)(2)) imposes criminal and civil liability on “whoever … intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer.”  
While there are currently conflicting cases relating to what constitutes “unauthorized access” for the purposes of this statute, some cases have held that a violation of the “Terms of Use” for a website could constitute “unauthorized access” and therefore amount to a violation of the CFAA.
Based on the foregoing, a first step in defense for any website owner concerned with scraping of its data is to have a valid and enforceable Terms of Use on its website.
Create an enforceable website Terms of Use
“Terms of Use” documentation on your website dictates the rights and obligations of a user when it accesses a website.  
Generally, there are two ways in which a Terms of Use might appear on a site: 
1. Clickwrap Agreement. In this type of agreement, a user must agree to the Terms of Use by clicking on an “OK,” “I Agree,” “I Accept” or similar button showing that they understand that they are bound by the Terms of Use. Courts generally find Clickwrap Agreements enforceable and consider them valid contracts. These types of agreements are preferred and are recommended in order to avoid any dispute over the validity of the Terms of Use.
2. Browsewrap Agreement. With a Browsewrap Agreement, the Terms of Use are put forth on a website typically through the use of a hyperlink at the bottom of the page. There is some concern regarding the enforceability of Browsewrap Agreements. Courts will enforce these agreements if it can be shown that the user had actual or constructive knowledge of the Terms of Use of the site. In order to increase the likelihood that a Browsewrap Agreement will be found enforceable, a website owner should prominently display the hyperlink on the site and clearly indicate that the Terms of Use affect the users’ rights.
Regardless of whether the Terms of Use appear as a Browsewrap Agreement or a Clickwrap Agreement, all Terms of Use should contain a provision relating to data scraping of the information contained on the site. An example of such provision is as follows:
Content on this site or content controlled by the providers is provided solely for your personal, non-commercial use. Such content may not be framed, copied, reproduced, republished, uploaded, posted, transmitted, distributed, scraped, spidered and/or exploited in any way, including by email or other electronic means for commercial use without proper license agreements with Website Owner. Such use of the content is considered theft and will be prosecuted. 
By having such a provision in the Terms of Use, you take the first and one of the most important steps to protect the information contained on your site from improper use by data scrapers.  
Lisa Allen is an associate attorney at the Lotus Law Center, where she specializes in helping small business clients with their legal needs. The Lotus Law Center was founded as a way to make legal services affordable for all sizes of businesses. Focusing on the practice of business and technology law, the Lotus Law Center provides premium personal and professional responses to the legal needs of business clients at an affordable fixed or hourly rate. This article is not meant as legal advice and is for general information purposes only. Consult your attorney for your specific needs. Contact her at