Did Data Scraping Just Get A Tiny Bit Safer?

by Dickinson Wright

Dickinson Wright

Is it okay to scrape data from another website? This is a frequently asked question that almost always leads to an ambiguous and equivocal answer. Legal practitioners are quick to point out the risks of civil and criminal liability that could be incurred by scraping data from someone else’s website, and several lawsuits have been spurred by the practice. This week, the United States District Court for the Northern District of California (the “Court”) issued an order in hiQ Labs, Inc. v. LinkedIn Corporation that may foretell of a somewhat safer landscape for some data scrapers.

What is data “scraping”? Basically, it is the process by which a company uses a software algorithm to automatically collect or harvest data. The case at issue concerned a company, hiQ Labs, Inc. (“hiQ”), that developed software to analyze data from public LinkedIn profiles to help employers determine which workers are likely to leave or stay. hiQ’s software automatically collects, i.e., “scrapes,” publicly available workforce data from LinkedIn profiles. By analyzing this data over time, hiQ can identify changes that may indicate an employee is looking for other employment opportunities. In the case, hiQ moved the court for a preliminary injunction in response to LinkedIn sending a cease and desist letter to hiQ that threatened litigation, and implementing blocking techniques designed to prevent hiQ’s automated data collection methods from scraping user data. LinkedIn had allowed hiQ to engage in this activity for years before sending the cease and desist letter, terminating hiQ’s LinkedIn subscription, and (citing LinkedIn’s User Agreement) alleging that any continued access by hiQ would be unauthorized and, therefore, a violation of several laws, including the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. In addition to moving for a temporary restraining order, hiQ also asked the Court for a declaration that its scraping activity did not violate the CFAA.

On August 14, 2017, the Court granted HiQ’s request and issued a preliminary injunction preventing LinkedIn from interfering with hiQ’s scraping of data from public LinkedIn profiles. In a quite thorough decision, Judge Edward M. Chen questioned whether the automated scraping of publicly available data from public-facing websites would violate the CFAA, regardless of the website’s user agreement. Equating LinkedIn’s position to that of a store owner who hangs a sign in a window and then seeks to ban certain people outside from looking at it, the Court opined:

A user does not “access” a computer “without authorization” by using bots, even in the face of technical countermeasures, when the data it accessed is otherwise open to the public.

The Court went further and, in addressing LinkedIn’s privacy argument, noted:

LinkedIn’s professed privacy concerns are somewhat undermined by the fact that LinkedIn allows other third parties to access user data without its members’ knowledge or consent.

It is important to note that this Order is limited in scope to only the issue of whether injunctive relief is appropriate based on the particular facts of the matter; it is not a true finding that the CFAA does not apply. The Court, however, appeared highly critical of the argument that it does. Further, the Court’s leanings are based on a number of factors that weight in hiQ’s favor, such as:

  • hiQ does not have to log into a LinkedIn account to see the data (and, therefore, may not be bound by the User Agreement);
  • LinkedIn does not claim a proprietary interest in its users’ profiles;
  • The user accounts from which data is scraped are set to be publicly viewable by anyone, regardless of whether the viewer has a LinkedIn account; and
  • hiQ had engaged in the activity for years with LinkedIn’s knowledge prior to LinkedIn terminating its access and sending a cease and desist letter.

This is not to say that all data scraping is safe from CFAA (or other) challenges. Judge Chen noted that other cases have gone the other way, with courts finding CFAA violations for automated data scraping, but usually only when the data being scraped is protected behind access control measures (such as logon credentials). Agreeing to a website’s terms of service and utilizing (or bypassing) access control measures to scrape a website’s data would lean toward a finding that the access was unauthorized (especially where a site’s terms of service ban such activities by its authorized users). In addition, it is important to note that data scraping may run afoul of state laws, intellectual property protections, or contractual obligations with or running to the benefit of the party whose data is being scraped.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dickinson Wright | Attorney Advertising

Written by:

Dickinson Wright

Dickinson Wright on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.