Last week, Supreme Court Justice Elena Kagan granted an extension to LinkedIn to file a writ of certiorari, indicating that the high profile case regarding the scraping of social media data could be heard by the Supreme Court.
The dispute between the popular professional social media site LinkedIn, and hiQ, a data science company, began in May of 2017. LinkedIn sent hiQ a cease-and-desist letter, demanding hiQ “[i]mmediately cease and desist unauthorized data scraping and other violations of LinkedIn‟s User Agreement.” Scraping is the use of programs to automatically collect data from websites. hiQ, a start-up specializing in data science and “people analytics”, was accessing publicly posted profile data on LinkedIn. hiQ then used the information to help employers learn more about their employees, including if and when an employee may quit. LinkedIn argued that by collecting data, hiQ was violating the Computer Fraud and Abuse Act, in addition to the LinkedIn terms of service.
hiQ’s CEO Mark Weidick stated “[w]e were stunned by LinkedIn’s actions, especially given their longtime familiarity with hiQ’s product and business. I run a company whose very existence is tied to the notion of public data really being equally accessible to all members of the public. LinkedIn’s attempt to wall-off this public information—viewable by anyone with a web browser—is not just a danger to hiQ, but to any company that uses public sources to inform the services they provide.”
The case was initially brought to court by hiQ in 2017 before California’s Northern District Court. The court granted a preliminary injunction requested by hiQ, stating, “the Court is doubtful that the Computer Fraud and Abuse Act may be invoked by LinkedIn to punish hiQ for accessing publicly available data.” The court defined public data as “information which LinkedIn members have designated public, meaning it is visible not just to LinkedIn members but also to others, including those who may access LinkedIn’s website via Google, Bing, other services, or by direct URL.” In addition to the injunction, LinkedIn was ordered to remove all barriers in place preventing hiQ from accessing their publicly available data and to withdraw all previous cease and desist letter.
Nearly two years later, the case was ruled on by the Ninth Circuit Court of Appeals, with similar results to the district court’s ruling. In relation to hiQ violating the CFAA the court stated “[i]t is likely that when a computer network generally permits public access to its data, a user’s accessing that publicly available data will not constitute access without authorization under the CFAA. The data hiQ seeks to access is not owned by LinkedIn and has not been demarcated by LinkedIn as private using such an authorization system.”
The appellate court further stated “LinkedIn has no protected property interest in the data contributed by its users, as the users retain ownership over their profiles. And as to the publicly available profiles, the users quite evidently intend them to be accessed by others, including for commercial purposes—for example, by employers seeking to hire individuals with certain credentials.”
Although this was an overall win for data scrapers, the Ninth Circuit did leave room for companies like LinkedIn to shut down data scrapers by stating “[w]e note that entities that view themselves as victims of data scraping are not without resort, even if the CFAA does not apply: state law trespass to chattels claims may still be available. And other causes of action, such as copyright infringement, misappropriation, unjust enrichment, conversion, breach of contract, or breach of privacy, may also lie.”
Typically, very few petitions for writs of certiorari are granted by the Supreme Court. LinkedIn’s application for the extension was filed by Munger, Tolles & Olson.