Announcing: Mary Vandenack and her team are now the Omaha office of DUGGAN BERTSCH.
Omaha attorneys can still be reached via direct lines or 402-504-1300.

Continue to Scrape Away! Microsoft’s LinkedIn Ordered to Lift Ban on Third Party Access to Public Profile Data

In the closely followed hiQ Labs, Inc. v. LinkedIn case, the Ninth Circuit affirmed the district court’s decision holding that hiQ, a data analytics company, is entitled to a preliminary injunction forbidding LinkedIn from denying hiQ access to publicly available LinkedIn member profiles. hiQ had been scraping data and building products from LinkedIn public profiles. LinkedIn argued that hiQ was in violation of LinkedIn’s user agreement as well as California law and federal law, including the Computer Fraud and Abuse Act (CFAA) and sent hiQ a cease-and-desist letter.

Similarly, back in 2018, a district court in Washington D.C. ruled that using automated tools to access publicly available information on the open web is not a crime, even when a website bans automated access in its terms of service. The case, Sandvig v. Sessions, narrowly interpreted the CFAA. This federal law makes it illegal to access a computer connected to the Internet “without authorization,” but neglects to specify what “authorization” means. In pertinent part, the court reasoned that:

“Scraping is merely a technological advance that makes information collection easier; it is not meaningfully different from using a tape recorded instead of taking written notes, or using the panorama function on a smartphone instead of taking a series of photos from different positions. And, as already discussed, the information plaintiffs seek is located in a public forum.”

The Ninth Circuit decision and reasoning is in line with Sandvig. However, the court was clear not to outlaw a website owner from pursuing any recourse against wholesale appropriation of its public content. Rather, the court articulated a public policy concern if companies like LinkedIn can use sole discretion to determine who can collect and use data when that company does not own the data which they make publicly available to viewers. Read in this way, the court is mitigating the opportunity for LinkedIn to gain a monopoly on public information of the site’s 500 million member profiles.

Many view hiQ Labs, Inc. v. LinkedIn as a victory for the open source web. The internet is a critical space for researchers, journalists, businesses, and individuals who require meaningful access to collect and analyze public information. Specifically, businesses use web scraping bots to relentlessly pursue data which might help grow their business by monitoring competitor pricing. Web scraping is also integral for predictive analysis, where businesses can study and understand products and associated consumer behavior to assess their costs and benefits. Thus, web scraping provides significant business value to a multitude of companies across various sectors.

LinkedIn could appeal the 9th Circuit’s decision to the U.S. Supreme Court. Until then, data miners, researchers, and other third parties can continue to use any public online data not owned or password protected by a website owner.