The Ninth Circuit’s decision arose from a dispute between LinkedIn and a company called hiQ Labs. hiQ Labs is a data analytics company that scrapes publicly accessible LinkedIn user profiles and analyzes that information for its customers, either by summarizing their workforce’s skill set or identifying those employees most likely to leave.
LinkedIn.com has a user agreement that forbids scraping. In 2017, LinkedIn sent hiQ a cease-and-desist letter demanding that hiQ stop copying data from the site. Claiming the survival of its business was under threat, hiQ filed suit in the District Court for the Northern District of California seeking a declaratory judgment that its conduct was lawful and a temporary restraining order preventing LinkedIn from blocking its access.
Judge Edward Chen sided with hiQ and granted an injunction against LinkedIn. HiQ Labs, Inc. v. LinkedIn Corp., 273 F. Supp. 3d 1099 (N.D. Cal. 2017). His analysis focused on an interpretation of the phrase “without authorization” in the CFAA. According to Judge Chen, when Congress passed the statute in 1984, it was seeking to prevent “hackers” from accessing “private” information stored on computers. He concluded that “application of the CFAA to the accessing of websites open to the public would have sweeping consequences well beyond anything Congress could have contemplated.” Id. at 1110. He also expressed “deep concern” about allowing website operators to pick and choose who is allowed to visit their public site, suggesting that such an interpretation of the CFAA would, for example, allow companies to prevent competitors from visiting their site to learn about products or pricing. Id.
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