United States: A Green Light for Screen Scraping? Proceed With Caution…

Court Issues Injunction Barring Blocking of Scraping and Holds CFAA Likely Doesn't Apply

Websites make information available to clients, users, customers and subscribers. Data aggregators, investors, competitors and others are always thinking of new and productive ways to use that data – typically, uses other than those for which the data is being made available. "Screen scraping" is one of the main technical tools used to harvest data from websites for such uses, and the federal Computer Fraud and Abuse Act (the "CFAA"), 18 U.S.C. §1030,  has been one of the main legal tools used by website owners to challenge those scraping activities.

While the law relating to screen scraping  is unclear, a recent landmark decision from the Northern District of California, hiQ Labs, Inc. v. LinkedIn, Corp., 2017 WL 3473663 (N.D. Cal. Aug. 14, 2017), appears to limit the applicability of the CFAA as a tool against scraping. Indeed, in granting injunctive relief against LinkedIn's blocking of hiQ's scraping activities, the hiQ court noted that, by invoking the CFAA, "[c]ompanies could prevent competitors or consumer groups from visiting their websites to learn about their products or analyze pricing." While the hiQ decision suggests that, at least in some circumstances, scraping of publicly available websites does not give rise to a cause of action under the CFAA, scrapers beware – the road may still have some rough patches ahead.

The hiQ Opinion

The hiQ case involves LinkedIn's challenge to hiQ's scraping of LinkedIn public profile data. Upon receipt of a cease and desist letter from LinkedIn alleging, among other things, hiQ's civil liability under the CFAA, hiQ sought a preliminary injunction barring LinkedIn from blocking hiQ's access to LinkedIn public profiles. Significantly, LinkedIn sent the cease and desist letter to hiQ after years of tolerating hiQ's access and use of its data; in fact, hiQ's business model of employee data analysis, is wholly dependent on crunching LinkedIn data that users have elected to publish publicly.

The key question concerning the applicability of the CFAA in this case was whether, by continuing to access public LinkedIn profiles after LinkedIn explicitly revoked permission to do so, hiQ has "accessed a computer without authorization" within the meaning of the CFAA.

The court issued a preliminary injunction, finding that the balance of equities favored hiQ, and distinguished the Ninth Circuit precedent in Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058 (9th Cir. 2016), that held that a commercial entity that accesses a website after permission has been explicitly revoked can, under certain circumstances, be civilly liable under the CFAA. The hiQ court found none of the data in the prior cases interpreting the CFAA relied on by LinkedIn (including U.S. v. Nosal (Nosal II), 844 F.3d 1024 (9th Cir. 2016) [1], which involved an employer's computer network) was publicly available data but, rather, a portion of a website (or employer database) protected by a user password. Limiting the reach of the Ninth Circuit's prior holdings, the court expressed "serious doubt" as to whether LinkedIn's revocation of permission to access the public portions of its site renders hiQ's access "without authorization" within the meaning of the CFAA. In the court's view, the CFAA was intended instead to deal with "hacking" or "trespass" onto private, often password-protected mainframe computers, and the judge was "reluctant" to expand its scope absent convincing authority. According to the court, the "broad interpretation" of the CFAA advocated by LinkedIn, if adopted, "could profoundly impact open access to the Internet."

LinkedIn also argued unsuccessfully that hiQ, as a LinkedIn member, is bound by its user agreement and its prohibitions on scraping activities. The court rather superficially noted that LinkedIn had terminated hiQ's user status and failed to demonstrate that hiQ's aggregation of data from LinkedIn's public profiles is dependent on its status as a LinkedIn user. Thus, the allegation of breach of contract was left largely unaddressed. [2]

Is this the end of the CFAA as a tool against scraping (in the Northern District of California)?

Before viewing this as a green light for scraping, readers should note the following about the opinion:

  • Because of the importance of this issue, and some of the narrow distinctions from precedential case law made by the court in reaching its conclusions, this decision seems ripe for appeal.
  • The decision is limited to only the question of whether injunctive relief was appropriate under the specific facts of the case. It is not a clear holding that the CFAA does not apply to scraping.
  • The decision focuses on sites which make data "publicly available." In this case, the data was viewable by anyone, without the need for a password. As the court summed up its holding: "Where a website or computer owner has imposed a password authentication system to regulate access, it makes sense to apply a plain meaning reading of 'access' 'without authorization' such that 'a defendant can run afoul of the CFAA when he or she has no permission to access a computer or when such permission has been revoked explicitly.' But...in the context of a publicly viewable web page open to all on the Internet, the 'plainness' of the meaning of 'access' 'without authorization' is less obvious. Context matters." 
  • The decision does not address the breach of contract claims based on website terms of use, as well as claims based in copyright, trespass or other causes of action.
  • It does not address situations where the "robots.txt" file is ignored, or where a scraper is acting in a misleading way or otherwise concealing its identity. It should be recalled, however, that the Ninth Circuit in Power Ventures stated, in dicta, that simply bypassing an IP address block, without more, would not constitute unauthorized use.
  • It does not address factors such as the interference with a website's sale or other authorized distribution of the data being scraped.

As it now stands, the hiQ opinion's holding and dicta offers a positive trend for those interested in scraping, yet leaves unanswered questions that present risk. Nonetheless, website owners seeking to block scrapers must evaluate this decision to understand what contractual and technical measures, if any, a site might undertake to thwart unwanted scraping of public-facing web content.

[1] The Power Ventures and Nosal decisions are discussed at length in a prior post on our New Media and Technology Law blog.

[2] The court also considered hiQ's argument that LinkedIn was unfairly leveraging its power in the professional networking market for an anticompetitive purpose, warranting injunctive relief. It found that hiQ made a plausible inference that LinkedIn terminated hiQ's access to its public member data in large part because it wanted exclusive control over that data for its own business purposes and to eliminate a competitor in the data analytics field. Still, the court made clear that LinkedIn may ultimately demonstrate it was not motivated by anticompetitive purposes, rather a desire to preserve user privacy preferences and its users' trust, or was lawfully protecting its own long-standing data analytics services.

A Green Light for Screen Scraping? Proceed With Caution...

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions