| Entities | NAACP (2) South Carolina (1) |
| Topics and Issues | Background checks (71) Court records (7) Evictions (10) Residential/Tenant Screening (80) Screen scraping (1) |
In March 2022, as noted in a press release, “[t]he American Civil Liberties Union, ACLU of South Carolina, and the NAACP filed a lawsuit…on behalf of the South Carolina NAACP. The case challenges South Carolina Court Administration’s categorical ban on automated data collection – known as “scraping” – on the Public Index, arguing that the ban is an unreasonable restriction on SC NAACP’s right to access and record public court records under the First Amendment.” The state NAACP wants to “timely identify tenants in need of services before they are removed from their homes” in the current “eviction crisis.” The press release notes that
Scraping is a legitimate method of collecting information online that is often necessary to efficiently and systematically gather records that might not otherwise be possible to record. The lawsuit asserts that the South Carolina Court Administration is violating the First Amendment by prohibiting scraping of its court docket information, which is already publicly available online.
The South Carolina NAACP seeks to scrape information from the Public Index, the county-by-county repository of legal filings in the state of South Carolina, in order to identify tenants in need of support to fight eviction cases and conduct systematic research into patterns of eviction filings, including potential Fair Housing Act violations. However, South Carolina’s Public Index employs terms of service and technical limitations that categorically prohibit scraping. Attorneys practicing in South Carolina can be subject to disciplinary action for violating the Public Index’s terms of service.
A Law 360 article says that “South Carolina’s Public Index is a collection of publicly available websites that provide information about all state court cases, according to the complaint, and is the only reliable and effective way to access up-to-date information about newly filed eviction cases.”
The case has broader implications, according to Allen Chaney, the legal director for the ACLU of South Carolina and Esha Bhandari, deputy project director of the ACLU Speech, Privacy, and Technology Project. Chaney said, “[f]or the public to have a meaningful discussion about the role our courts play in matters of public concern, the right to use noninvasive technical means to capture public court information must be protected. This case is about ensuring core First Amendment principles, like the right to access public court filings, are applied in a way that meets our rapidly expanding digital reality.” Bhandari said that “[t]he First Amendment protects the NAACP’s right to use digital-era methods of recording public docket information that is available to any internet user. Scraping is often a necessary method of gathering public data efficiently, permitting systemic research to hold powerful actors accountable.”
The complaint “lawsuit argues that the prohibition on scraping the Public Index violates the First Amendment, including because it restricts the right to record public information and the right of access to judicial records. The lawsuit builds on the arguments made in a previous ACLU case, Sandvig v. Barr, that successfully challenged an application of the Computer Fraud and Abuse Act that would have prohibited online research techniques such as scraping. It also builds on the ACLU’s work supporting the use of eviction records to expose the racial and gendered impact of evictions across the country and challenge discriminatory housing practices.”
. . .
January 2023
In January 2023, the District Court denied the defendant’s motion to dismiss.
As reported by Law 360,
South Carolina’s Public Index is a collection of publicly available websites that provide information about all state court cases, the NAACP said, and is the only reliable and effective way to access current information about newly filed eviction cases.
The NAACP said it uses automated scraping methods to quickly identify at-risk tenants in South Carolina and give them guidance in one of the few states that did not install a long-running eviction moratorium during the COVID-19 pandemic.
On Tuesday, Judge Geiger Lewis sided with the NAACP, finding that the state court system’s prohibition of scraping implicates the organization’s First Amendment rights.
Courts considering whether the First Amendment provides access to a particular proceeding or court record have used the “experience and logic test,” according to the ruling. Under that test, a court must answer two inquiries: whether a specific record has been available to the press and public in the past, and whether public access plays a positive, important role in the functioning of the particular process in question, the judge wrote.
‘The court is unconvinced by defendants’ argument that this case fails to implicate the First Amendment, because these records were historically unavailable online,’ Judge Geiger Lewis wrote. ‘Whether the First Amendment is implicated — i.e., the experience and logic test — depends on the type of record rather than the type of restriction to access.’
While the state defendants are correct in that the First Amendment provides the NAACP with ‘less than an unfettered right’ to access court records, on the other hand, they lack “unbounded discretion” in deciding the extent and means of access to such records, the judge said.
“True, the evidence may eventually show that defendants have a sufficient reason to prohibit scraping,” the judge wrote. “It may indicate that the NAACP’s access to the records is unburdened by the restriction. Or, it may demonstrate that defendants have provided sufficient alternatives to access the information. But, as alleged, the restrictions state a claim for violation of the First Amendment.”
. . .
‘The district court properly recognized that a categorical prohibition on scraping public court records implicates the First Amendment,’ Esha Bhandari, deputy director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project, said in a statement. ‘Scraping is often a necessary method of gathering public data efficiently, and enabling digital-era research and journalism in the public interest.’
. . .
The case is South Carolina State Conf. of the NAACP v. Kohn, U.S. Dist. Ct., (D. S.C., Columbia Div.), No. 3:22-cv-01007. Plaintiff counsel: The American Civil Liberties Union and the NAACP Office of General Counsel. Defense counsel: Lindemann Law Firm PA; Robinson Gray Stepp & Lafitte LLC, the South Carolina Judicial Branch.
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