LinkedIn urges 9th Circuit to vacate injunction prohibiting technology aimed at blocking scraping bots

Attorneys representing LinkedIn Corp. and a data analytics company that aggregates information from the networking site differed sharply on the bounds of a hotly debated federal computer access law before a panel of the 9th U.S. Circuit Court of Appeals Thursday.

But the panel — reviewing a preliminary injunction requiring LinkedIn to take down technology aimed at preventing hiQ Labs Inc. from collecting public information made available by users — expressed interest in addressing an unfair competition law basis for the injunction and turned later to the scope of the Computer Fraud and Abuse Act, which was the primary concern of the district judge’s order.

Shortly after former solicitor general Donald B. Verrilli Jr., now a partner at Munger, Tolles & Olson LLP, began arguing that the injunction “threatens the very values of competition and innovation that the district court thought it was protecting,” Judge Marsha S. Berzon turned the debate to the unfair competition ruling.

She noted it was the affirmative basis for the injunction. hiQ Labs Inc. v. LinkedIn Corporation, 17-16783 (9th Cir., filed Jun. 7, 2017).

U.S. District Judge Edward M. Chen of San Francisco issued the injunction after LinkedIn sent a cease and desist letter to hiQ, telling the company its use of user profile information violated CFAA, which prohibits the unauthorized access of protected computers.

hiQ has built an industry through the use of automated robots, which comb public LinkedIn profiles for information that is collected through a process known as “scraping.” This information is sent to employers, who contract with hiQ.

In his order, Chen explained that existing circuit precedent on CFAA addressed information accessed behind password protection, unlike the LinkedIn profiles in question. He wrote briefly to explain that LinkedIn likely was in violation of unfair competition law in light of its entry into the data analytics market and prominent position in the professional networking market.

LinkedIn had not expressed concern with hiQ’s activities until it decided that it would implement a similar service.

Verrilli responded to Berzon’s pivot toward the unfair competition claims by saying there was no technical violation of antitrust laws or the spirit of those laws.

Senior Circuit Judge J. Clifford Wallace opined that the court had an alternate route to affirm Chen’s ruling by addressing tortious interference claims, which Chen said in a footnote overlapped the unfair competition claims. Verrilli proffered a legitimate business interest defense.

Wallace, decrying a trend toward appeals from preliminary injunctions that give the circuit little record from which to draw, implied it would allow the court to avoid the thorny weeds of CFAA and the unfair competition claims.

The court did entertain significant arguments on the CFAA dispute, the reason for which the case has attracted attention.

Companies have always had the right to do business with partners of their choosing, Verrilli told the court. He attempted to assuage fears that a reversal of Chen’s order would give companies undo power to block individuals from viewing their sites by noting that a bookstore would be well within its rights to bar a shoplifter from coming back into its building.

“Under any common sense understanding of the phrase ‘without authorization,’ their conduct after those things had happened was without authorization,” he said, adding that the idea that companies cannot revoke access to a public site was a “non sequitur.”

C. Brandon Wisoff, a partner at Farella Braun & Martel LLP, told the court that LinkedIn’s reading of the law was too broad and stressed the fact that the information made available by LinkedIn profiles was not shielded by password protection.

Berzon entertained whether this could be a possibility and Wisoff argued that concerns that previously public information might be forced behind a password barrier were unfounded.

“The only reason people are posting information on their website in the first place, is because they know it’s going to be public and accessible to the world,” Wisoff told the panel. “That’s the purpose of having a LinkedIn profile. It’s your billboard to the public.”

Depending on how the court rules, the case could end up becoming a significant contribution to the body of the 9th Circuit case law on the scope of CFAA.

In 2016, the court held that a third party that accessed Facebook users’ password protected information with their consent violated CFAA after the social media company sent a cease and desist letter prohibiting such data collection. Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1067 (9th Cir. 2016).

U.S. District Judge Terrence G. Berg, visiting from Eastern Michigan, sat on the panel.