Silicon Valley won’t promise to protect journalists. Lawmakers, you’re up.
Will I go to prison for violating the terms of service? This is the question journalists must ask themselves, now, when writing data stories based on public information collected from a website, such as Facebook or Twitter. Violating a terms of service that prohibits scraping can carry with it possible criminal liability under the Computer Fraud and Abuse Act (CFAA). No journalists have been prosecuted under this statute, but their sources have, and some journalists have been asked to stop using specific reporting tools by Facebook. Moreover, the company is well within its legal rights to bring claims against journalists in the future under the statute. To address these issues, in Aug, the Knight Institute wrote a letter to Facebook, asking the company to change its terms to create a news-gathering exception to its ban on scraping. So far, the company has not complied with this request.
Because reporters must often either use these companies’ proprietary programming interfaces in order to gather the necessary information, or act covertly, legal advice has become essential in news gathering for these types of stories. Newsrooms with larger resources have attorneys who can advise journalists around the CFAA. Indeed, several newsrooms have begun providing legal trainings on the terms of service and the CFAA. But newsrooms without counsel as well as freelancers, who operate without legal advisors, are left largely at risk—leaving legislators at bat. And many news investigations have been stymied by the specter of the Computer Fraud and Abuse Act’s penalties. While we have found ways of obtaining needed data through legal paths, the law creates real hurdles—and those hurdles must be removed.
[D Victoria Baranetsky is general counsel at The Center for Investigative Reporting.]
Silicon Valley won’t promise to protect journalists. Lawmakers, you’re up. Data Journalism and the Law