Yesterday, the US Ninth Circuit Court of Appeals ruled (.pdf) in favor of the data analysis company HiQ Labs, which was retrieving data. and building products from LinkedIn public profiles. This is a case that has many implications – and can still be appealed. 19459003 19459002 CFAA and anti-piracy rules. LinkedIn has tried to stop HiQ using, among other things, the Computer Fraud and Abuse Act (CFAA), a federal law on cybersecurity and the fight against piracy. In simple terms, the CFAA states that a computer can not be accessed without authorization or beyond an authorization.
Profile data published on LinkedIn was and is public. But LinkedIn did not like HiQ to scratch its content and issued a cease and desist order in 2017. The letter indicated that HiQ was in breach of LinkedIn's use agreement as well as the laws of California and federal government, including CFAA. LinkedIn also stated that it would technically block HiQ's efforts to recover the site.
HiQ commenced a preliminary injunction action against LinkedIn and was successful in the District Court. The court ordered LinkedIn to again authorize HiQ to access the content. LinkedIn has appealed to the ninth circuit.
Who is "permitted" to access the content of the website. One of the central issues in the case was to determine, once HiQ received LinkedIn's letter of termination and renunciation, whether it was "without leave" under the CAFA. The ninth circuit declared No.
CFAA contained information that is not accessible to the public (for example, protected by a password). Public LinkedIn profiles were not protected by a password. In simple terms: if the LinkedIn data was not public, the company could have invoked CFAA to block HiQ access.
LinkedIn argued that HiQ violated the terms of its user agreement. The ninth circuit pointed out that LinkedIn had terminated its "user" status with the termination letter and disclaimer. In addition, LinkedIn has not claimed any ownership rights to the content of the public profile. And while LinkedIn also stated that it also wants to protect the users' right to privacy by blocking HiQ, the court did not accept this argument about public profile information, where expectations of confidentiality were minimal or non-existent.
Other possible ways to block scratching. The case essentially concerned CAFA, although the court considered other claims. In the end, it was not clarified that a website owner had no recourse against a wholesale appropriation of its public content. The court said other laws might apply: "State violations of the law relating to personal property may still be available. And other causes of action, such as copyright infringement, misappropriation, unjust enrichment, conversion, breach of contract or violation of privacy, can also be found. "
The ninth circuit did not analyze the application of these theories to the HiQ facts, however." He simply said that they could ask for protection from scraping or scavenging.
In response to this decision, a spokesperson for LinkedIn said: "We are disappointed with the court's decision and we are evaluating our options. LinkedIn will continue to fight to protect our members and the information they entrust to LinkedIn. "
Why Should We Care? This case may not be completed and may eventually reach the US Supreme Court, but its broadest interpretation seems to be: any "public" online data not owned by a publisher or protected by a password – and the facts can not be be protected by a copyr ight – can be freely captured by third parties.
At the end of the In his opinion, the court said it was concerned about "letting companies like LinkedIn free to decide, in any place, who can collect and use data – data that companies do not own, that they otherwise make available to the public and that businesses themselves collect and use – risk creating information monopolies that would serve the interest public ".
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About the Author
Greg Sterling is a collaborative editor at Search Engine Land. He writes about the links between digital commerce and offline commerce. Previously, he held senior positions at LSA, The Kelsey Group and TechTV. Follow him on Twitter or find him on LinkedIn.