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Monday, January 25, 2016

Ind. Gov't. - More on: Decision in an Illinois federal court on access to county records dispute

Last week the 7th Circuit affirmed the March 5, 2015 summary judgment order from the Central District of Illinois the ILB last wrote about in this April 20, 2015 post.

The opinion, involving "Screen-scrapers" and "web-harvesters," was Fidlar Technologies v. LPS Real Estate Data Solutions, issued Jan. 21, 2016. Judge Flaum writes in the 21-page opinion:

Fidlar Technologies (“Fidlar”) brings this action against LPS Real Estate Data Solutions, Inc. (“LPS”) for violations of the Computer Fraud and Abuse Act (“CFAA”) and the Illinois Computer Crime Prevention Law (“CCPL”). Fidlar claims that LPS improperly downloaded county land records provided through Fidlar’s services. The district court granted summary judgment in favor of LPS. It held that Fidlar failed to show that LPS acted with intent to defraud under CFAA § 1030(a)(4) or that LPS caused “damage” under § 1030(a)(5)(A). The court also rejected Fidlar’s argument that LPS knew or had reason to know that it might cause loss as required by the CCPL. For the following reasons, we affirm. * * *

In 2011, LPS designed a “web-harvester,” a computer program to download county records en masse. To create the web-harvester, LPS ran a number of standard record search-es and used a “traffic analyzer” to view the SOAP calls sent from the client to the middle tier. LPS then identified the SOAP calls necessary to retrieve records and developed its own client, the web-harvester, to emulate those SOAP calls and send them to the middle tier. LPS’s web-harvester only sent the SOAP calls necessary to retrieve records; it did not send other SOAP calls, such as those that track a user’s activ-ity. But every SOAP call did include LPS’s unique identifier assigned by each county.

Like the Laredo client, the web-harvester allowed LPS to search for and retrieve any record from the county databases it subscribed to. However, LPS’s web-harvester had three major differences from Fidlar’s Laredo client. First, the web-harvester allowed LPS to acquire records en masse rather than viewing or printing them one at a time. Second, the web-harvester allowed LPS to download or save records, an option not available in the Laredo client. Third, LPS’s web-harvester did not send any tracking data at all and did not register any print fees, even if LPS downloaded or saved a record.

LPS used its web-harvester to obtain a large number of records from the 82 county databases it subscribed to over approximately two years. It downloaded the records in bulk onto its computers and then sent the records to India. There, select data from the records were “keyed,” or entered, into LPS’s database. Throughout this period, LPS continued to pay for unlimited subscriptions in all 82 counties but did not incur (or pay) print fees for all of the records it acquired through its web-harvester. Indeed, essentially none of LPS’s activities were tracked during this period. Nonetheless, LPS’s web-harvester did not disrupt Fidlar’s services to other users or alter any content in the middle tier or county data-bases.

In 2012, Fidlar received a message from one of its county customers noting that LPS was paying subscription fees but was not logging any time used. In early 2013, Fidlar decided to investigate LPS. Based on server logs, Fidlar concluded that LPS was using a web-harvester instead of the Laredo client to obtain records. * * *

Fidlar’s own conduct, moreover, bolsters LPS’s testimony on this point. LPS presented evidence that Fidlar knew that at least two of LPS’s competitors used third party programs to acquire record data via Laredo. In particular, CoreLogic used a “screen-scraper” to collect data from county records. Similarly, the First American Title Company used its own web-harvester to acquire records. Fidlar was aware of this conduct yet did not do anything to stop it. Indeed, in an in-ternal e-mail, a Fidlar employee stated that Fidlar could make screen-scraping or web-harvesting illegal with a “simple dis-claimer that states the information can’t be scraped from the image.” Taken together, this evidence suggests that even Fidlar itself did not believe that web-harvesting was impermissible. * * *

Fidlar cannot show that LPS in-tended to defraud the counties. LPS demonstrated that its intent was to efficiently acquire records in a way it believed to be permissible under the governing agreements. Its intent was not to avoid print fees. Accordingly, LPS did not intend to cause loss to the counties.

For the same reason, Fidlar cannot show that LPS knew or had reason to know that it might cause loss to the counties. LPS was aware that some counties imposed print fees and that the counties obtained revenue from these fees. But given that LPS believed that it was entitled to download records without incurring a fee, it follows that LPS did not know or have reason to know that it was causing a loss. The fact that LPS could have paid print fees but chose not to does not establish a loss to the counties because LPS was not printing records. At a minimum, Fidlar must demonstrate that LPS had reason to know that the counties were entitled to the print fees they allegedly lost. However, from LPS’s perspective, the counties were not entitled to anything beyond the unlimited subscription fees LPS was already paying. Therefore, we agree with the district court that no reasonable jury could conclude that LPS knew or had reason to know that it would or might cause a loss.

Posted by Marcia Oddi on January 25, 2016 09:20 AM
Posted to Ind. (7th Cir.) Decisions | Indiana Government