“Web scraping” involves the use of software to collect data from the internet, which can then be sold to other users. On September 9, 2019, the United States Court of Appeals for the Ninth Circuit issued a decision in hiQ Labs, Inc. v. LinkedIn Corp., No. 17-16783, holding that LinkedIn could not deny a web scraping company access to publicly available LinkedIn member profiles.
hiQ is a data analytics company that uses automated bots to “scrape” information which LinkedIn members include on their public profiles for the purpose of selling the collected data to hiQ’s business clients. LinkedIn sent hiQ a cease and desist letter, demanding that it stop collecting data from LinkedIn’s server. A California district court preliminarily enjoined LinkedIn from denying hiQ access to publicly available information in LinkedIn’s members profiles, and the Ninth Circuit affirmed.
In reaching this decision, the Ninth Circuit rejected LinkedIn’s arguments for a number of reasons. The court specifically rejected LinkedIn’s argument that hiQ’s web scraping practices invaded LinkedIn’s members privacy because, the court found, there was little evidence to suggest that the LinkedIn members had an expectation of privacy in information they posted publicly. The court also noted that LinkedIn’s own policies confirmed that its members, not LinkedIn, retained ownership of their user files. Further, the court found that LinkedIn users with public profiles “intended them to be accessed by others, including for commercial purposes.”
Consideration of these and other factors led the Ninth Circuit to hold that the district court properly considered all of the elements required for hiQ to obtain a preliminary injunction and that issuance of the injunction was appropriate.
Other lawsuits challenging the practice of web scraping are currently pending in other courts in the United States, so it seems inevitable that the Supreme Court will eventually be asked to take up the issue. In the meantime, members of the public should be aware that data which they make publicly available on social media may be used by third-parties for their own commercial purposes.