Court Reaffirms Preliminary Injunction against LinkedIn’s Efforts to Block Data Scraping

By‎ Adv. Dotan Hammer

Partner at the Cyber, Privacy & Copyright Group, Pearl Cohen Zedek Latzer Baratz

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On remand from the Supreme Court of the United States, the Court of Appeals for the Ninth Circuit has reaffirmed the District Court’s preliminary injunction banning LinkedIn from blocking hiQ, a Californian start-up, from accessing LinkedIn’s website through automated means.

The ongoing feud between LinkedIn and hiQ began a few years ago when LinkedIn sent hiQ a cease and deceased letter. LinkedIn demanded that hiQ stop scraping publicly available data from LinkedIn’s website. It alleged that hiQ’s scraping breaches LinkedIn’s terms of use and violates the federal Computer Fraud and Abuse Act (CFAA).

Unable to reach an amicable solution with LinkedIn, hiQ moved for a declaratory judgment to permit it to scrape LinkedIn’s publicly available data. hiQ succeeded in securing the District Court’s preliminary injunction, which was also affirmed later by the Court of Appeals for the Ninth Circuit.

In 2021, the U.S. Supreme Court delivered its decision in the matter of Van Buren v. the United States, holding that misusing authorized access to information for an unauthorized purpose is not a violation of the CFAA. Following Van Buren, the Supreme Court vacated the Ninth Circuit’s original decision on the preliminary injunction against LinkedIn and remanded the case for an additional hearing in light of the new ruling in Van Buren.

Earlier this month, the Ninth Circuit again concluded that LinkedIn may not block hiQ’s scraping of LinkedIn’s publicly accessible data, on the following grounds:

  • hiQ will suffer irreparable harm if the injunction is denied. hiQ currently has no viable way to remain in business other than by using LinkedIn’s public data.
  • The balance of equities tips sharply in hiQ’s favor, when weighing the likelihood that hiQ would go out of business against LinkedIn’s claim that hiQ’s activities violate the privacy of LinkedIn members, thereby risking LinkedIn’s goodwill.
  • hiQ showed a sufficient likelihood of establishing the elements of its claim against LinkedIn for tortious interference with hiQ’s contracts with customers such as eBay, Capital One, and GoDaddy.
  • hiQ has raised a serious question as to whether the CFAA’s prohibition on access to computers “without authorization” applies to computers, like the LinkedIn website, to which access is open to the general public. This would render the CFAA’s concept of “without authorization” inapplicable.
  • The public interest favors a preliminary injunction because giving companies like LinkedIn “free rein to decide, on any basis, who can collect and use data” that they do not own, “risks the possible creation of information monopolies”.

CLICK HERE to read the Ninth Circuit Court of Appeals’ recent decision in the matter of hiQ Labs, Inc. v. LinkedIn Corporation.