The U.S. Federal Court of Appeals for the Ninth Circuit affirmed the lower court’s preliminary injunction in favor of a startup company, enjoining LinkedIn from blocking or putting in place any mechanism (whether legal or technical) with the effect of blocking or preventing the startup from accessing, scraping or using LinkedIn users’ public profiles.
The decision was delivered in a lawsuit for declaratory judgment brought by HiQ – a startup that analyzes LinkedIn data – after LinkedIn sent HiQ a cease and desist letter. The letter demanded that the company stop using software to “scrape” or automatically collect data from LinkedIn's public profiles, alleging that it violates LinkedIn's user agreements and the federal Computer Fraud and Abuse Act ("CFAA") which prohibits unauthorized access to computers.
The Court of Appeals sided with hiQ largely because of the irreparable damage it would suffer if LinkedIn’s blocking is upheld, considering that hiQ’s entire business depends on automated scraping from LinkedIn and that its business would shut down if scraping is enjoined. The Ninth Circuit also emphasized that the scraped data was publicly shared as such by LinkedIn members and that members’ expectation of privacy in this data is virtually non-existent. It also indicated that LinkedIn has no proprietary rights in that data given that LinkedIn terms provide that the members retain ownership of their profile.
The Court went on to explain that hiQ had raised serious questions about LinkedIn’s anti-competitive conduct. Importantly, the three-judge panel also concluded that hiQ had raised a serious question as to whether the CFAA’s reference to access “without authorization” limits the scope of statutory coverage only to computer information for which authorization or access permission, such as password authentication, is generally required, rather than to computer information openly and publicly accessible, the access to which is in breach of contractual terms of use.
The dispute will return to the district court for further proceedings on hiQ’s request for a permanent injunction unless the Ninth Circuit grants LinkedIn’s motion for en banc rehearing by the full panel of the court.
CLICK HERE to read the Ninth Circuit decision in hiQ Labs, Inc. v. LinkedIn Corp.
This article was published in the Internet, Cyber and Copyright Group’s September 2019 Newsletter.
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