SAN FRANCISCO — The American Civil Liberties Union, the ACLU of Northern California, the Electronic Frontier Foundation, and the Knight First Amendment Institute at Columbia University filed a friend-of-the-court brief arguing that X, formerly known as Twitter, cannot enforce its terms of service to penalize the Center for Countering Digital Hate, Inc. (CCDH) for using automated data collection — known as scraping — to inform research criticizing X for allowing what CCDH deemed disinformation to remain on the platform.
The brief argues that when a party attempts to use an anti-scraping contract term to bypass the high standard for defamation claims and circumvent public policy protections for speech that contributes to public discourse, a court should decline to enforce the contract term. In this case, a public policy protecting speech in the public interest is reflected in the federal First Amendment, California’s constitutional equivalent provision, and California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law. Scraping when done in the context of public interest research is part and parcel of the subsequent public interest speech it enables.
Courts cannot, and should not, allow private companies like X to wield breach of contract claims as a weapon to punish criticism and to secure damages stemming solely from claimed reputational harm resulting from that criticism.
“Allowing X to hold CCDH liable for breach of contract will create significant dangers for other researchers and journalists seeking to use basic digital tools like scraping to provide the public with insight into the powerful platforms that we all now rely on for information,” said Esha Bhandari, deputy project director of the ACLU’s Speech, Privacy, and Technology Project.
In this case, CCDH allegedly engaged in scraping to inform the public of instances when X failed to remove posts that CCDH deemed dis- and mis-information, despite evidence the content violated X’s content guidelines.
“Companies like X Corp. can’t be allowed to use their terms of service to bully and shut down researchers who provide the public with valuable insights into the platforms on which we rely for information and communication,” said Cindy Cohn, executive director of the Electronic Frontier Foundation.
The speech of research organizations like CCDH, as well as academics and journalists — in many instances made possible only by scraping — has shed necessary light on a panoply of concerns that powerful social media platforms have failed to independently monitor and correct, and has provided crucial information for regulators to take enforcement action. Such public interest research serves as a key accountability mechanism to reveal the platforms’ content moderation choices and privacy policies and practices.
“If the companies are able to wield terms of service as a cudgel against public-interest research they don’t like, much of the research we need to hold them accountable simply would not happen,” said Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute at Columbia University.
The brief was prepared with the significant contributions of Jake Karr, deputy director of NYU’s Technology Law and Policy Clinic, and law students Rebecca Delaney and Maeve O’Brien.