LinkedIn Banned From Blocking Public Profile Access

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By Alexis Kramer

LinkedIn Corp. can’t block access to member public profile data, a federal court held in considering whether collecting data from a public website could constitute unauthorized access ( hiQ Labs, Inc. v. LinkedIn Corp. , 2017 BL 284160, N.D. Cal., No. 17-cv-03301-EMC, preliminary injunction granted 8/14/17 ).

HiQ Labs Inc., a company that collects and analyzes LinkedIn profile data to provide employee attrition and retention analysis for its clients, sued LinkedIn after the social network threatened legal action and blocked access to its website. HiQ alleged violations of California’s constitution and unfair competition statute. LinkedIn argued that hiQ’s state claims fail because they are preempted by the federal Computer Fraud and Abuse Act, which prohibits the access of a protected computer without authorization for purposes of obtaining information.

The U.S. District Court for the Northern District of California said it has “serious doubt” whether hiQ’s access to the public profiles, even after LinkedIn expressly revoked permission, constituted access “without authorization” as required under the CFAA.

Under LinkedIn’s interpretation, “merely viewing a website in contravention of a unilateral directive from a private entity would be a crime effectuating the digital equivalence of Medusa,” Judge Edward M. Chen said, granting a preliminary injunction against LinkedIn. The case is the first time that LinkedIn has appeared before Chen, according to Bloomberg Law Litigation Analytics.

LinkedIn intends to “continue to fight” to allow members to control the information they make public, company spokeswoman Nicole Leverich said in a statement emailed to Bloomberg BNA.

Nosal Distinguished

The court distinguished the case from United States v. Nosal (Nosal II) and Facebook Inc. v. Power Ventures Inc., two appellate decisions holding that a defendant can run afoul of the CFAA by accessing a computer without permission or when permission has been explicitly revoked. The defendants in those cases, a former employee and a social media aggregator, have asked the U.S. Supreme Court to review the decisions.

The hiQ court said that in Facebook and Nosal II, the data at issue weren’t publicly available but rather protected by password authentication systems. “Neither of those cases confronted the precise issue presented here,” the court said.

San Francisco-based private company hiQ has raised serious questions under California’s unfair competition law as to whether LinkedIn blocked hiQ’s access for an anticompetititve purpose, the court said. HiQ had alleged LinkedIn is taking advantage of its position in the professional networking market to secure an unfair advantage in the employment data analytics market.

But hiQ hasn’t raised serious questions with its free speech claims under the California constitution, the court said.

Farella Braun & Martel LLP is representing hiQ. Munger Tolles & Olson LLP is representing LinkedIn.

To contact the reporter on this story: Alexis Kramer in Washington at aKramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

For More Information

The preliminary injunction order is available at http://src.bna.com/rF9.

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