Does the United States Constitution protect privacy?
Only in certain circumstances is an individual's right to privacy guaranteed or protected by the United States Constitution. The Constitution does not specifically mention "privacy." Although there are a series of amendments that mention the various fundamental freedoms given to citizens, there is no similar "privacy amendment." Despite the lack of a clear constitutional provision of privacy, the United States Supreme Court has ruled that privacy interests are found in--and thus protected by--some of the amendments to the Constitution. Not surprisingly, civil rights advocates have expressed concern over a purported lack of privacy given to computer users due to various types of software, including "screen scrapers." These advocates cite the constitutional doctrine of privacy that has been developed by the courts.
"Screen scraper" software programs can record computer data and user profiles
A "screen scraper" is a program that automatically picks up data on one page or website and copies or moves it into another. For example, a computer user fills out a credit application on one page of a lender's website. He types in information such as his name, address, and income. Behind the scenes, this information is placed in another form or website. If the computer user looks at this other form or website, he realizes that some or all of this information now appears on the new screen.
Also known as "screen grabbers," these types of software record a computer user's activities, including keystrokes, websites visited, and desktop applications used. During the screen scraping process, the software simulates the computer user's own use of a web site. The screen scraper not only captures the information typed in by the computer user, but also captures the replies or entries made by the web site itself. Screen scrapers can be used by employers or commercial entities to obtain data and to learn about a person's computer or online usage. "Data aggregators" can access web sites and data banks to get and consolidate customers' information in order to provide electronic billing and payment services. Employers can use screen scrapers to record their employees' computer usage.
Privacy advocates and many consumers have expressed concern that the collection and sharing of data and computer usage habits can be readily and quickly abused, without a consumer's consent or knowledge. Many computer users, however, appreciate the fact that they do not have to enter certain information, such as passwords, as frequently.
The Computer Fraud and Abuse Act
The federal Computer Fraud and Abuse Act (CFAA) addresses a number of computer crimes. The CFAA provides for punishment of the unauthorized access of a "protected computer," with a fraudulent intent. "Exceeds authorized access" means to use previously authorized access to a computer to obtain or alter information in the computer when the accessing party does not have permission to do so.
Although the extent of authorization given for the use of screen scrapers is becoming controversial, few courts have taken on the subject. Courts struggle just to keep up with the controversies that arise as quickly as computer technology evolves. A federal court has approached a screen scraping case by looking to the provisions of the CFAA, while a state court has looked to the law of trespass. The federal court ruled that the "reasonable expectations" of an ordinary computer user cannot be used as the basis for determining if a company using a screen scraper exceeded its authorized access.
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