Comparison Shopping Is Not a (Computer) Crime

As long as people have had more than one purchasing option, they’ve been comparing those options and looking for bargains. Online shoppers are no exception; in fact, one of the potential benefits of the internet is that it expands our options for everything from car rentals to airline tickets to dish soap. New AI tools can make the process even easier. These tools could provide some welcome relief for consumers facing sky-high prices that many cannot afford.

Unfortunately, Amazon is trying to block these helpful new tools, which can steer shoppers towards competitors. Taking a page from Facebook and RyanAir, they are trying to use computer crime laws to do it. 

Amazon’s target is Perplexity, which makes an AI-enabled web browser, called Comet, that allows users to browse the web as they normally would, but can also perform certain actions on the user’s behalf. For example, a user could ask Comet to find the best price on a 24-pack of toilet paper, and if satisfied with the results, have the browser order it. Amazon claims that Perplexity violated the Computer Fraud and Abuse Act (CFAA) by building a tool that helps users access information on Amazon and engage with the site.

Unfortunately, a federal district court agreed. The court’s fundamental mistake: relying on the Ninth Circuit’s misguided decision in Facebook v Power Ventures, rather than the court’s much better and more applicable reasoning in hiQ Labs.

Perplexity has appealed to the Ninth Circuit. As we explain in an amicus brief filed in support, the district court’s mistake, if affirmed, could lead to myriad unintended consequences. Overbroad readings of the CFAA have undermined research, security, competition, and innovation. For years, we’ve worked to limit its scope to Congress’s original intention: actual hacking that bypasses computer security. It should have nothing to do with Amazon’s claims here, not least because most of Amazon’s website is publicly available.

The court’s approach would be especially dangerous for journalists and academic researchers. Researchers often create a variety of testing accounts. For example, if they’re researching how a service displays housing offers, they may create separate accounts associated with different race, gender, or language settings. These sorts of techniques may be adversarial to the company, but they shouldn’t be illegal. But according to the court’s opinion, if a company disagrees with this sort of research, it can’t just ban the researchers from using the site; it can render that research criminal by just sending a letter notifying the researcher that they’re not authorized to use the service in this way.

A broad reading of CFAA in this case would also undermine competition by enabling companies to limit data scraping, effectively cutting off one of the ways websites offer tools to compare prices and features.

The Ninth Circuit should follow Van Buren’s lead and interpret the CFAA narrowly, as Congress intended. Website owners do not need new shields against independent accountability.