Federal Judge Rules That a Ban on Automated Data Collection Could Violate the First Amendment

January 10, 2023 5:15 pm

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COLUMBIA, S.C. – In an important victory, a federal judge in South Carolina ruled that a case to lift the categorical ban on automated data collection of online court records – known as “scraping” – can move forward. The case claims the ban violates the First Amendment.

The decision came in NAACP v. Kohn, a lawsuit filed by the American Civil Liberties Union, ACLU of South Carolina, and the NAACP on behalf of the South Carolina State Conference of the NAACP. The lawsuit asserts that the Court Administration’s blanket ban on scraping the Public Index – the state’s repository of court filings – violates the First Amendment by restricting access to, and use of, public information, and prohibiting recording public information in ways that enable subsequent speech and advocacy. The South Carolina NAACP seeks to scrape online housing court records so that it can identify tenants who have had eviction actions filed against them, to help them fight those eviction actions, and conduct statewide advocacy.

“The district court properly recognized that a categorical prohibition on scraping public court records implicates the First Amendment,” Esha Bhandari, deputy director of the ACLU’s Speech, Privacy, and Technology Project, said. “Scraping is often a necessary method of gathering public data efficiently, and enabling digital-era research and journalism in the public interest.”

Scraping is a legitimate method of collecting information online that is often necessary to efficiently and systematically gather records that might not otherwise be possible to manually collect. The district court held that the South Carolina NAACP has plausibly alleged a claim that the Court Administration’s ban violates the First Amendment by prohibiting scraping of its court docket information, which is already publicly available online.

The ban on scraping impairs the South Carolina NAACP’s ability to prevent evictions and help people achieve meaningful access to the courts. In South Carolina, failure to request a hearing within 10 days of a filing can result in a default judgement of eviction.

“The eviction crisis is ravaging South Carolina,” warned Allen Chaney, legal director of the ACLU of South Carolina. “Today’s ruling is an important step towards ensuring that the NAACP’s housing programs have access to the public court records they need to advocate for the thousands of renters facing displacement across our state.”

Responding to the eviction crisis and its consequences for South Carolina’s tenants, the South Carolina NAACP launched a number of initiatives, including a Housing Navigator Program in February 2021 that provides free eviction-prevention services, investigates and responds to community-wide patterns of eviction filings, and advocates greater access to fair housing and more just eviction policies, including through Fair Housing Act litigation.

“We brought this case to make sure that the South Carolina NAACP has the information we need to reach out to and help tenants who are on the verge of being evicted,” Brenda Murphy, president of the South Carolina State Conference of the NAACP, said. “Today’s ruling moves us toward a future in which we’re able to use court records to inform tenants in our state of their rights and, over time, advocate for fairer and more just eviction-related laws to protect these tenants.”

“Court records are fundamental to our understanding of our legal system—and to our ability to help people moving through it,” Joe Schottenfeld, assistant general counsel of the NAACP, said. “Today’s ruling makes it clear that the First Amendment protects our ability to access those records through relatively new techniques, like data scraping, that can expand our ability to process, understand, and use the records. Today is a huge step forward toward ensuring that the NAACP can do what it does best: reach and help people.”

This case was filed in March 2022 in the U.S. District Court for the District of South Carolina, Columbia division.

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