Whether web scraping of publicly available data using automated technology constitutes an improper means of obtaining trade secrets under the Defend Trade Secrets Act

QUESTIONS PRESENTED This case involves an important question of federal law that has not been, but should be, settled by this Court. See Sup. Ct. R. 10). The question is whether an action that is not unlawful under the federal Defend Trade Secrets Act (“DTSA”) when performed manually by a human (or humans) is unlawful when performed by a computer robot. The Eleventh Circuit Court of Appeals answered that question in the affirmative. Specifically, this case concerns a technique for extracting large amounts of publicly available data from a website by using a robot. The technique, called “webscraping,” collects information at speeds far beyond what a human could achieve manually. The web-scraping at issue involved use of HTML source code to obtain insurance premium quotes from a website operated by Respondent, Compulife Software, Inc. At the time of the scraping, the website imposed no restrictions on the number of quotes a person could generate or how the quotes could subsequently be used. Nevertheless, Respondent claimed that Petitioner’s use of scraping constituted an improper means to misappropriate trade secrets in violation of the DTSA. The DTSA defines “improper means” to include “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means,” but “does not include reverse engineering, independent derivation, or any other lawful means of acquisition.” 18 U.S.C. § 1839(6). Although the Eleventh Circuit held that acquiring publicly available data manually would not violate the DTSA, it likened scraping such data to hacking, and thus held that scraping constitutes an improper means of obtaining trade secrets under the DTSA.