United States: LinkedIn Data Scraping Case—9th Circuit's Trigger For CFAA Liability

Data has become a valuable commodity in our economy, with some analysts valuing it above crude oil. Billion-dollar businesses stake their existence on the collection and analysis of publicly available data. So naturally, control and access to vast and valuable data sources has become a passionate race, spurring legal disputes with potentially far-reaching consequences.

Congress enacted the Computer Fraud and Abuse Act (CFAA), originally referred to as the "anti-hacking" statute, to prevent malicious actors from accessing internet-connected computers without authorization. In today's data-driven economy, however, the CFAA has been repurposed in some cases as a bludgeon against data miners in the data race.

Two years ago, hiQ Labs, a data analytics company that uses web scrapers to access data, secured a victory in the U.S. District Court for the Northern District of California. The court granted hiQ's preliminary injunction motion prohibiting LinkedIn from using electronic blocking measures to prevent hiQ from downloading publicly available information on LinkedIn's user profiles.

A Lifeline to Web-Scraping Companies?

LinkedIn appealed the preliminary order, and after nearly two years under review, the U.S. Court of Appeals for the Ninth Circuit recently affirmed the district court's finding that hiQ's activities did not violate the CFAA, providing a lifeline—at least temporarily—to hiQ and potentially other businesses engaged in web scraping.

hiQ Labs sells employee retention and training products to its customers. To develop its products, hiQ mines and analyzes data from the public profiles of LinkedIn users, a practice commonly referred to as "web scraping." The user data hiQ scrapes is stored on LinkedIn's servers, but LinkedIn specifically disclaims ownership of user data in its terms of use.

LinkedIn was aware of hiQ's business model since at least 2015. In 2017, LinkedIn began marketing its own products to compete with hiQ. LinkedIn sent hiQ a cease-and-desist letter and employed various technical measures to block hiQ's access to LinkedIn's publicly available user profile data.

hiQ believed that these measures posed an existential threat to hiQ's business, which relies predominantly on LinkedIn users' profile data. Accordingly, hiQ sued LinkedIn seeking injunctive relief based on California law and a declaratory judgment that LinkedIn could not lawfully invoke the CFAA.

Information Was Public

The Ninth Circuit did not definitely resolve whether LinkedIn lawfully invoked the CFAA against hiQ. Rather, the court reviewed this case on interlocutory appeal at the preliminary injunction stage, and thus decided the district court's findings regarding hiQ's likelihood of success on the merits of its case, which specifically turned on whether hiQ raised serious questions about LinkedIn's invocation of the CFAA, were correct.

The CFAA imposes civil and criminal liability on those accessing and obtaining information from a protected computer without authorization or exceeding authorized access. The central CFAA issue on appeal was whether any further scraping of LinkedIn's user data by hiQ lacked authorization or exceeded authorized access within the meaning of the CFAA once hiQ received LinkedIn's cease-and-desist letter.

The court interpreted the ordinary meaning of the CFAA's authorization language to suggest a "baseline in which access is not generally available." As such, the court reasoned that prohibitions of the CFAA are inapplicable to publicly available information, which does not require authorization in the first place.

Further, the court found support for its analysis in the legislative history of the CFAA where legislatures intended only to prohibit conduct akin to "breaking and entering" and viewed the statute as a prohibition on unauthorized access to private  information obscured to the public by a password or other means.

Access to LinkedIn user profiles is open to the general public and web users do not require a password to access these public profiles. Hence, the court concluded that in the absence of any sort of credential requirement, such as a password, the prohibition on unauthorized access within the CFAA is not applicable to scraping LinkedIn users' public profile data.

Although the decision was rendered in the context of a motion for preliminary injunction, the court nonetheless crystallized its interpretation of the CFAA's unauthorized access prohibition, specifically in its application to publicly available data. Further, the court emphasized that its decision was consistent with previous cases interpreting the unauthorized access prohibition.

Notably Power Ventures  and Nosal II were cases in which the Ninth Circuit determined a user violated the CFAA because the user accessed private data stored on a password protected computer or shielded from the user through IP address barriers. See Facebook Inc. v. Power Ventures Inc., 844 F.3d 1058 (9th Cir. 2016); see also United States v. Nosal (Nosal II),  844 F.3d 1024 (9th Cir. 2016).

Altogether, the Ninth Circuit has taken the position that the applicability of the CFAA turns on whether the accessed information was private or publicly available. With respect to publicly available data, the Ninth Circuit has signaled the retirement of the CFAA from the arsenal of website owners.

What's Next for Website Owners?

The Ninth Circuit's decision is undoubtedly favorable for web scrapers like hiQ with respect to the CFAA.

Website owners are not, however, left without recourse in the burgeoning data race. The court explicitly left intact other legal avenues for website owners to combat web scrapers, including trespass to chattels, copyright infringement, misappropriation, unjust enrichment, conversion, breach of contract, or breach of privacy. The hiQ v. LinkedIn dispute will likely now turn to those claims as the litigation continues in district court.

Moreover, other website owners will focus on these causes of action to prevent web scrapers from absconding with their data.

Originally published by Bloomberg Law

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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