By: Jenna Connors

Earlier this year, LinkedIn, a business and employment-oriented social networking service, demanded that hiQ stop “scraping data” from its services, and even took technical measures to block hiQ from accessing publicly accessible information, such as users’ profiles. Consequently, hiQ filed suit against LinkedIn for acting anti-competitively and sought an injunction requiring LinkedIn to stop blocking hiQ from its data. LinkedIn also filed a counterclaim stating that it has the right to control its servers and that hiQ completely disregarded LinkedIn users’ privacy.

U.S. District Court Judge Edward Chen granted hiQ’s injunction on the grounds that hiQ’s business could suffer “irreparable harm” if it cannot access publicly available information about LinkedIn’s members.

LinkedIn appealed this District Court ruling and asked the Ninth Circuit to vacate Judge Chen’s order. According to MediaPost, LinkedIn argues in its appellate papers that “[r]ather than putting in the effort to build its own business, hiQ expropriates member data from LinkedIn’s servers on a massive scale, and then turns around and sells that data to companies that wish to furtively monitor their employees.” Essentially, LinkedIn appears to argue that hiQ is violating the CFAA, a criminal statute intended to reduce malicious interferences with computer systems and to address federal computer offenses, by accessing publicly available information about LinkedIn members. Whether hiQ will be found in violation of CFAA is unclear. Another federal judge for the Northern District of California allowed a CFAA violation claim to proceed in which 3Taps, a website similar to Craigslist, was using Craigslist postings to provide an alternate interface for these postings. In order to find that hiQ is violating the CFAA, it appears that the court must decide whether hiQ is using LinkedIn’s data maliciously and whether LinkedIn can claim ownership over this publicly accessible information.

Although hiQ could be using LinkedIn’s data to its benefit to sell to companies, the Ninth Circuit could likely rule that this does not violate the CFAA because hiQ is not using information they do not have a right to access. HiQ is also not likely “scraping” this information maliciously because hiQ does not compete directly with LinkedIn to advertise this publicly accessible information as a social media site.

Student Bio: Jenna Connors is currently a 2L at Suffolk University Law School and a staff member of The Journal of High Technology Law interested in criminal defense. She holds a B.A. in political science from Assumption College.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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