$31M For Scraping Craigslist Ads, Emailing Scraped Addresses

Emailing Scraped Addresses Is Aggravated Violation Of CAN-SPAM

Craigslist Inc. v. Instamotor
Judgement and permanent injunction – Instamotor allegedly (mis)apprporiated automobile ads on Craigslist, and displayed the ads and contact details of Craigslist users on its site without users’ knowledge or consent. This (mis)appropriation was also allegedly done in violation of Craigslist’s Terms of Use. Plaintiff’s further alleged Instamotor would use Craigslist’s ‘relay’ system to send unsolicited emails advertising Instamotor’s services, using Craigslist’s ‘relay’ system to hide its identity as the true sender.

At trial is was revealed Instamotor hired and directed a team of individuals based in the Philippines to scrape postings, pictures, and Craigslist users’ contact information, and then send emails to Craigslist users to obtain additional information (e.g., vehicle VIN, mileage, or license plate number) without identifying that the senders were affiliated with Instamotor. The court ruled the scraping was done in violation of Craigslist’s Terms of Use, and the emails were sent in violation of CAN-SPAM (failed to identify the messages as advertisements, failed to identify Instamotor as the sender, contained no opt-out, and did not provide a physical postal address of the sender).

A $31,052,314 judgement was entered in Craigslist’s favor. Highlights include:

  • $25,674,300 for CAN-SPAM violations
    • $100 * 85,581 emails, trebled for aggravated damages (i.e., emailing scraped addresses)
  • $5,378,014 for breach of contract Terms of Use
    • $1 for each email & $1 for each phone number scraped from 2,689,007 listings

In addition to the monetary penalties, Instamotor is prohibited from directly or indirectly using, copying, or reposting any Craigslist content, including use of emails obtained through Craigslist. Instamotor must also destroy any data it has obtained through Craigslist.
[N.D. CA; 4:17-cv-02449]
jbho: I found this one interesting as it is one of those rare cases where the CAN-SPAM private right of action is invoked. Craigslist qualified as an ISP since it provided its own proprietary messaging system. And since Instamotor used that internal system to send (spoof?) emails, statutory damages applied.

Also, a reminder to consider the Terms of any sites you are crawling, and to program your bots to honor any robots.txt files they may encounter.

For the record: Craiglist’s Terms of Use prohibit users from scraping the craigslist website (explicitly prohibit “Robots, spiders, scripts, scrapers, crawlers, etc.”). User who post ads to Craigslist – such as Instamotor – are bound to the Terms of Use by clickwrap.

Craiglist’s Terms of Use also prohibit users from collecting contact information on Craigslist users, and from spamming Craigslist users. Each ad post allows the user to choose whether s/he wants to be contacted (i.e., receive third-party solicitations). A box must be checked to permit contact.

And in case you were wondering: 15 U.S.C. § 7704(b)(1) states:

(b) Aggravated violations relating to commercial electronic mail

(1) Address harvesting and dictionary attacks–

(A) In general
It is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message that is unlawful under subsection (a), or to assist in the origination of such message through the provision or selection of addresses to which the message will be transmitted, if such person had actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that–

(i) the electronic mail address of the recipient was obtained using an automated means from an Internet website or proprietary online service operated by another person, and such website or online service included, at the time the address was obtained, a notice stating that the operator of such website or online service will not give, sell, or otherwise transfer addresses maintained by such website or online service to any other party for the purposes of initiating, or enabling others to initiate, electronic mail messages; or

(ii) the electronic mail address of the recipient was obtained using an automated means that generates possible electronic mail addresses by combining names, letters, or numbers into numerous permutations.

(B) Disclaimer
Nothing in this paragraph creates an ownership or proprietary interest in such electronic mail addresses.

 

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