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Data scraping in California

November 28, 2019

Last year, I blogged about a case where LinkedIn decided that it would no longer allow HiQ, a data scraper, to scrape public information from LinkedIn's website. The district court preliminarily enjoined LinkedIn from blocking HiQ from scraping information.  On September 9, 2019, the Court of Appeals affirmed the injunction (see link).

 

It is important to note that this is a decision about the propriety of a preliminary injunction, and not a ruling on the merits of the claims.  Thus, this decision does make data scraping is lawful. 

 

While the Court of Appeals did not find LinkedIn's Computer Fraud and Abuse Act (CFAA) claim applicable, businesses that have their data scraped have other legal claims: state law trespass to chattels, copyright infringement, misappropriation, unjust enrichment, conversion, breach of contract, or breach of privacy law (Opinion at 34-35).

 

As for LinkedIn's argument that it was protecting its user's privacy, the Court of Appeals found that argument lacking.  First, LinkedIn's privacy policy states that you should not post anything "that you would not want to be public". Second, users that set their profiles to be public intend their profiles to be accessed by others.  Third, LinkedIn has a similar product that analyzes its users' public profiles.

 

[Update]

 

On October 11th, LinkedIn petitioned the Court of Appeals for an en banc rehearing arguing that (1) the earlier Ninth Circuit panel decision conflicts with other Ninth Circuit cases, (2) the earlier panel's decision conflicts with the plain language of the CFAA, (3) the earlier panel's decision conflicts with decisions from other circuit Court of Appeals, and (4) the privacy interest of LinkedIn users is of exceptional interest (see link, hosted on Mega.nz).

 

Image by Balasoiu on Freepik

 

 

 

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