Document Type
Note
Abstract
This note explores whether any existing laws prohibit scraping photographs, as suggested by Facebook and other big tech companies’ recent actions against Clearview. After examining each potential claim, this note argues that no existing law should be construed to hold Clearview liable for scraping photographs, because doing so would create inconsistencies in existing law. But also, the apparent legality of Clearview’s scraping activity presents an argument for a reversal of the recent trend towards laws that, guided by the principle of a free and open internet, favor scraping. Rather, the apparent legality of activity that ultimately enables otherwise unrestrained modern surveillance techniques presents an argument for a return to federal laws that provide stronger defenses for cyberproperty. Part I explains the concept and technology of scraping photographs and the extraction of facial scan data for use in facial recognition algorithms. Part II clarifies the state of the law on scraping under the claims that are most commonly brought against scraping activities, including the Computer Fraud and Abuse Act (CFAA), copyright, and contract law. Part III applies these doctrines to scraping photographs and extracting facial images. Part IV provides policy arguments for the direction scraping law should take in light of this note’s findings regarding the state of the law today. Part V briefly concludes.
Recommended Citation
Maggie King,
Note: Scraping Photographs,
2
Notre Dame J. on Emerging Tech.
187
(2021).