International Application of CFAA: Scraping Data or Scraping Law?

Web scraping has resulted in a growing number of civil litigations internationally, including claims under the Computer Fraud and Abuse Act (“CFAA”) in the United States. With the Supreme Court’s first ever decision on the CFAA, in Van Buren v. United States, and its granting of LinkedIn’s petition for certiorari in June 2021, the CFAA is expected to attract even more interest among scholars and practitioners. However, little attention has been given to its cross-border ramifications. Cases show that U.S. courts are more than willing to apply the CFAA extraterritorially, even though their analyses are often flawed.

In addition, other conflict-of-laws rules, such as personal jurisdiction and forum non conveniens, impose few constraints on the CFAA’s international effects. Given that CFAA claims are more likely to succeed than other causes of action, there is a strong motivation for website owners to enjoin scraping internationally by filing CFAA claims in U.S. courts. It is therefore argued that U.S. courts should consider the international impacts of the CFAA with care when interpreting its substantive provisions. Such due regard to comity will be in the national interest of the United States.