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Data-scraping Defended

September 26, 2019

LinkedIn can’t restrict access to users’ publicly available information

In hiQ Labs, Inc. v. LinkedIn Corporation, the United States Court of Appeals for the Ninth Circuit unanimously agreed to uphold the district court’s preliminary injunction, which stopped LinkedIn from restricting hiQ’s access to its users’ publicly available information.

HiQ is a data analytics company founded in 2012 that uses automated bots to scrape information publicly posted by LinkedIn users to yield “people analytics”, which it then sells to clients. HiQ offers analytics that identify employees at the greatest risk of being recruited away from their current employer, as well as tools that help employers identify skill gaps in their own workforces.

LinkedIn representatives had been attending conferences organized by HiQ, and indeed one LinkedIn employee received an “Impact Award” and spoke at the conference. This changed when LinkedIn began exploring developing its own ways to use the data from the profiles to generate new products.

In May 2017, LinkedIn sent hiQ a cease-and-desist letter claiming that the company’s use of LinkedIn data was in violation of the User Agreement and, if they persisted in using this data, it would violate the Computer Fraud and Abuse Act (CFAA), the Digital Millennium Copyright Act, California Penal Code §502(c), and the California common law of trespass. One week later, hiQ sought injunctive relief, which was granted by the district court. The court also ordered LinkedIn to remove any technical barriers to hiQ’s access to public profiles.

The court engaged an in depth analysis of the meaning of the relevant CFAA provision cited by Linkedin and concluded that the CFAA’s prohibition of accessing a computer “without authorization” is only violated when a person circumvents a computer’s generally applicable rules regarding access permissions. When a computer network permits public access to its data, then the access of this publicly available data would not constitute access “without authorization” under the CFAA. However, the court concluded that state law trespass to chattels claim might still be applicable to the data-scaping of publicly available data in this case.

In considering the injunction, the court noted the potential harm to hiQ, which was not just monetary injury, but the threat of going out of business. HiQ had been in the middle of a financing round when it received the cease and desist letter, and the threat of uncertainty created thereby caused the financing to stall and several employees to leave the company. HiQ would also have been unable to fulfill existing contracts without access to the LinkedIn data. That had to be balanced against the privacy interest retained by LinkedIn users who had chosen to make their profiles public, but the balance between those two interests favoured hiQ.

The court also considered the public interest in granting the preliminary injunction, which focused mainly on non-parties’ interests. On balance, the court determined that on balance, the public interests favour hiQ’s position. They held:

We agree with the district court that giving companies like LinkedIn free rein to decide, on any basis, who can collect and use data – data that the companies do not own, that they otherwise make publicly available to viewers, and that the companies themselves collect and use – risks the possible creation of information monopolies that would disserve the public interest.

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