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hiQ v. LinkedIn

LEGAL CASE

hiQ v. LinkedIn

EFF, together with our friends DuckDuckGo and the Internet Archive, filed an amicus brief urging the Ninth Circuit Court of Appeals to reject LinkedIn’s request to transform the CFAA from a law meant to target serious computer break-ins into a tool for enforcing its computer use policies.

The social networking giant wants violations of its corporate policy against using automated scripts to access public information on its website to count as felony “hacking” under the Computer Fraud and Abuse Act, a 1986 federal law meant to criminalize breaking into private computer systems to access non-public information. But using automated scripts to access publicly available data is not “hacking,” and neither is violating a website’s terms of use. LinkedIn would have the court believe that all “bots” are bad, but they’re actually a common and necessary part of the Internet. “Good bots” were responsible for 23 percent of Web traffic in 2016. Using them to access publicly available information on the open Internet should not be punishable by years in federal prison.

LinkedIn started sending out cease and desist letters in 2016 to companies it said were violating its prohibition on scraping. One company LinkedIn targeted was hiQ Labs, which provides analysis of data on LinkedIn user’s publicly available profiles. LinkedIn sent hiQ letters warning that any future access of its website, even the public portions, were “without permission and without authorization” and thus violations of the CFAA—even though scraping publicly available data in violation of a company’s terms of use comes nowhere near Congress’s original intent of punishing those who break into protected computers to steal data or cause damage. hiQ took LinkedIn’s claims straight to court. It asked the Northern District of California in San Francisco to rule that its automated access of publicly available data was not in violation of the CFAA, despite LinkedIn’s threats. hiQ also asked the court to prohibit LinkedIn from blocking its access to public profiles while the court considered the merits of its request. hiQ won a preliminary injunction against LinkedIn in district court, and LinkedIn appealed.

LinkedIn’s position would undermine open access to information online, a hallmark of today’s Internet, and threaten socially valuable bots that journalists, researchers, and Internet users around the world rely on every day—all in the name of preserving LinkedIn’s advantage over a competing service. EFF, DuckDuckGo, and the Internet Archive urged the Ninth Circuit to make sure that doesn’t happen.

The Ninth Circuit is expected to hear oral argument in the case in March 2018.

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