The ink is barely dry on the landmark Ninth Circuit hiQ Labs decision. Yet, a new dispute has already cropped up testing the bounds of the CFAA and the ability of a platform to enforce terms restricting unauthorized scraping of social media content. (See Stackla, Inc. v. Facebook, Inc., No. 19-5849 (N.D. Cal. filed Sept. 19, 2019)). This dispute involves Facebook and a social media sentiment tracking company, Stackla, Inc., which, as part of its business, accesses Facebook and Instagram content. This past Wednesday, September 25th, the judge in the case denied Stackla, Inc.'s request for emergency relief restoring its access to Facebook's platform. While the judge has yet to issue a written ruling, the initial pleadings and memoranda filed in the case are noteworthy and bring up important issues surrounding the hot issue of scraping.
Stackla collects social media content on behalf of brands. Facebook offers an application program interface (an "API") to allow third party developers to access Facebook and Instagram content. In May 2019, Stackla was approved as an Official Facebook Marketing Partner (FMP) after an extensive review of its business and advertising practices, giving it what it considered a stamp of approval as a vetted partner that met "the highest standards of performance."
After an online news organization published articles that questioned the scraping practices of certain...