LinkedIn Seeks Supreme Court Review of Data Harvesting Dispute

Privacy Portal Blog
August 3, 2020

The United States Supreme Court may soon consider whether businesses can harvest data from publicly available information so that they can resell it.  LinkedIn petitioned the Court earlier this year to hear its appeal in a case involving unauthorized “scraping” of LinkedIn members’ data.  The Court has not yet determined whether it will grant the petition for review and hear the case.

The ruling that LinkedIn seeks leave to appeal is one issued by the Ninth Circuit Court of Appeals last year.  Rejecting the social media giant’s claim of a violation of the Computer Fraud and Abuse Act (CFAA), the circuit court held that a data analytics startup company, hiQ Labs Inc., did not run afoul of that statute by scraping data from LinkedIn profiles without permission.

At the heart of the Ninth Circuit’s decision was a simple proposition: the information allegedly wrongfully obtained — data from a feature LinkedIn members use to highlight the fact that they are in the market for a new job — can be accessed by the general public without submitting a password. The circuit concluded that viewing publicly available information, for which no license was needed, could not be deemed a violation of the CFAA.

In its petition for certiorari, LinkedIn asserts that the decision is inconsistent with rulings from other federal courts. It contends that, as an operator of a public-facing website, the ruling deprives it of a "critical means of protecting user data from unauthorized third-party scrapers."  Less clearly delineated in its arguments to date has been whether restricting site access to “licensed” users, and preventing scraping for commercial gain, would prevent the harm LinkedIn says it has suffered.  Should the high court agree to hear this appeal, the case will likely have major implications for commercial use of publicly available data published by website users.

 
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Philip R. Stein

Philip R. Stein

Partner, Litigation Practice Group Leader
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