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10.17.19

Ninth Circuit Indicates that Information on Public LinkedIn Profiles is Fair Game for Automated Data

BY Jenny L. Holmes

Special thanks to James Ingram for his contributions to this post.

Is the use of automated "data-scraping" bots to collect information from public LinkedIn profiles fair game under the Computer Fraud and Abuse Act (CFAA)? According to the Ninth Circuit's recent ruling in hiQ Labs, Inc. v. LinkedIn Corporation, No. 17-16783, 2019 WL 4251889 (9th Cir. Sept. 9, 2019), the answer is likely "yes."

In hiQ Labs, LinkedIn sent data analytics company hiQ a cease-and-desist letter demanding that hiQ stop scraping data from LinkedIn users' public profiles and asserting that continuation of the practice would constitute a violation of the CFAA. hiQ, in turn, sought a preliminary injunction to enjoin LinkedIn from invoking the CFAA against it.

The CFAA, codified at 18 U.S.C. § 1030, prohibits the intentional accessing of a protected computer "without authorization" in order to obtain information from it. The Ninth Circuit considered the meaning of the phrase "without authorization" and determined that its use in the statute is meant to protect against the digital equivalent of "breaking and entering." As such, simply collecting publicly available data from a website like LinkedIn does not give rise to a CFAA violation. The court rather indicated that the CFAA is violated only "when a person circumvents a computer's generally applicable rules regarding access permissions, such as username and password requirements, to gain access to a computer."

Applying this framework, the court found that there is a serious question as to whether hiQ's data-scraping practices violate the CFAA, and granted hiQ's motion for a preliminary injunction. It noted that LinkedIn does not claim to own the information that its users share on their public profiles and that such information is available without a username or password to anyone with access to a web browser. The court also rejected LinkedIn's argument that an injunction would threaten the privacy of its members, finding "little evidence that LinkedIn users who choose to make their profiles public actually maintain an expectation of privacy with respect to the information that they post publicly . . ."

The court's decision at this stage of litigation is certainly encouraging for hiQ and others engaged in similar data collection practices. The NP Privacy Partner team will continue to monitor developments in this case, but in the meantime: (i) companies seeking to protect user data should ensure that protective measures, such as required usernames and passwords, are in place to create a clear barrier between public data and that which is accessed without authorization, and (ii) LinkedIn users should be aware that information posted to their public profiles may very well end up in the hands of third-party data collectors.

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Jenny L. Holmes

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