In a January 10 ruling, U.S. District Judge Mary Geiger Lewis sided with the National Association for the Advancement of Colored People (NAACP), finding that they may continue in their fight to show that the South Carolina state court system’s restriction on automated “scraping” of eviction-related case information violates their First Amendment right to access and record public court records. “Scraping,” an automated data collection technique, is currently prohibited by the terms of use of the state Public Index, and attorneys who violate these terms can face disciplinary action. South Carolina Court Administration also uses technical means to prevent scraping. The NAACP has argued there is no reason for the outright ban, and other court systems allow the practice without any adverse consequences.

Background

In response to what they have referred to as an “eviction crisis” in South Carolina, the state’s NAACP chapter established a Housing Navigator Program. This program trains volunteers to identify and contact tenants facing eviction to provide them information about their right to request a hearing on an eviction action. To timely identify those individuals, the organization relies on state court records available on South Carolina’s Public Index, a county-by-county database of legal filings. Because tenants are only granted 10 days from receipt of an eviction notice to request a hearing, the NAACP claims that it would be impossible for it to find all tenants subject to eviction actions fast enough to provide timely support using manual search methods alone. The NAACP claims that a data “scraping” program would automate the process, allowing the organization to rapidly search the Public Index for eviction cases and record the names of tenants facing eviction. However, while manual searching of the Public Index is permissible, the South Carolina Judicial Department prohibits the use of “scraping” on the database, and the terms of service for the Public Index prohibit users from using software to harvest the data.

According to its complaint, the NAACP made repeated attempts to contact the South Carolina Court Administration directly to discuss solutions that would allow the NAACP to gather eviction filings exclusively for its outreach purposes. The parties were unable to reach an agreement through those efforts. Instead, Court Administration representatives informed the NAACP that it should be able to use manual methods to get the necessary information directly from the Public Index. They also would not consider providing regular updates on eviction filings, including under S.C. Rule 610, which governs “requests” for “bulk distribution of judicial records.”

Following these unsuccessful attempts, the NAACP, represented by ACLU attorneys, filed a lawsuit in March 2022 against South Carolina State Court Administrator Tonnya K. Kohn and South Carolina Supreme Court Chief Justice Donald W. Beatty. The NAACP alleged that the ban on scraping violates the First Amendment by unreasonably restricting access to public information and judicial records. The state defendants filed a reply brief on September 2, 2022, pushing back on the allegation that they failed to make any documents publicly available, and further arguing that the use of scraping presents “serious challenges to the functioning of the South Carolina Case Management System and its Public Index.”

Decision

Judge Lewis concluded that the NAACP may proceed with its suit against the defendants, finding that it stated a claim that the First Amendment prohibits defendants’ ban on scraping. The judge agreed with the state defendants’ assertion that the First Amendment provides the NAACP with “less than an unfettered right to access court records” and further conceded that the evidence may eventually demonstrate that (1) defendants have a sufficient reason to prohibit scraping, (2) access to the records is not burdened by the restriction, or (3) that defendants have provided sufficient alternatives to access the information. Judge Lewis concluded, however, that these factual disputes are more suitable for a motion for summary judgment. Further, she found that neither party represented that the matter would involve difficult questions of state law, and she disagreed with the defendants’ assertion that the NAACP’s lawsuit would create a danger of disrupting the proper administration of a state system. Accordingly, the state defendants’ motion to dismiss was denied, and the parties were ordered to submit a joint proposed amended scheduling order by January 17.

This case potentially has significant ramifications nationwide, not just for scraping, but for public records access more generally, particularly given the challenge to the state’s policy is based on the First Amendment. We will continue to monitor activity in this case and report on any litigation and regulatory developments as they occur.

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Photo of David N. Anthony David N. Anthony

David Anthony handles litigation against consumer financial services businesses and other highly regulated companies across the United States. He is a strategic thinker who balances his extensive litigation experience with practical business advice to solve companies’ hardest problems.

Photo of Stephen C. Piepgrass Stephen C. Piepgrass

Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on enforcement actions, investigations, and litigation. Stephen primarily represents clients engaging with, or being investigated by, state attorneys general and other state or local governmental enforcement bodies,

Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on enforcement actions, investigations, and litigation. Stephen primarily represents clients engaging with, or being investigated by, state attorneys general and other state or local governmental enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, with a particular focus on heavily regulated industries. He also has experience advising clients on data and privacy issues, including handling complex investigations into data incidents by state attorneys general other state and federal regulators. Additionally, Stephen provides strategic counsel to Troutman Pepper’s Strategies clients who need assistance with public policy, advocacy, and government relations strategies.

Photo of Michael Yaghi Michael Yaghi

Michael is a partner in the firm’s State Attorneys General and Regulatory Investigations, Strategy + Enforcement (RISE) Practice Groups, nationwide teams that advise clients on consumer protection enforcement matters and other regulatory issues. Based in the firm’s Orange County office, Michael represents high-profile…

Michael is a partner in the firm’s State Attorneys General and Regulatory Investigations, Strategy + Enforcement (RISE) Practice Groups, nationwide teams that advise clients on consumer protection enforcement matters and other regulatory issues. Based in the firm’s Orange County office, Michael represents high-profile clients in regulatory enforcement investigations involving all facets of their business, including but not limited to, advertising and sales practices, monthly membership programs, auto renewal programs, telemarketing and telephone solicitations, door-to-door sales practices, and endorsements. Having begun his career as a commercial litigator, he also supports clients throughout litigation, should an investigation move in that direction.

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Noland is an associate in the firm’s Consumer Financial Services Practice Group. She received her J.D., summa cum laude, from University of Richmond School of Law, where she served as manuscript editor of the University of Richmond Law Review, and as…

Noland is an associate in the firm’s Consumer Financial Services Practice Group. She received her J.D., summa cum laude, from University of Richmond School of Law, where she served as manuscript editor of the University of Richmond Law Review, and as vice chancellor of the McNeill Law Society. Noland was also on the Trial Advocacy Board and a board member of the Richmond Law & Business Forum.

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Whitney is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. She represents clients facing state and federal regulatory investigations and enforcement actions, as well as related civil litigation.