Data Scraping, Bots and First Amendment Rights

Published on JD Supra on October 11, 2017

A recent case involving a small workforce analytics startup fighting for its right to extract data from the largest professional networking site on the Internet may set a precedent for applying constitutional principles to social medial platforms.  hiQ Labs, Inc., the company seeking to protect its right to scrape publicly available data from LinkedIn, maintains that social media platforms should be treated as a public forum, and consequently, hiQ’s data scraping activities are protected by the First Amendment.

Data scraping has come a long way since its early days, which involved manually copying data visible on a website.  Today, data scraping is a thriving industry, and high performance web scraping tools allow individuals and businesses to take advantage of the massive amount of data available on the Internet by collecting specific data from targeted websites.  Many companies are increasingly reliant on big data as an important part of their business strategy and now view data scraping as a business necessity.

Just as data extraction methods have evolved, so have the legal theories used to either defend or challenge data scraping activities.  In one of the earliest cases challenging unwanted data scraping, eBay, Inc. v. Bidder’s Edge, Inc., eBay successfully used a trespass to chattels theory to obtain a preliminary injunction against an auction aggregator that was compiling a database of eBay’s auction listings by extracting data from eBay’s site.   Other legal theories currently used in cases involving data scraping include claims alleging breach of contract, violation of terms of use, copyright infringement, violation of the Computer Fraud and Abuse Act (CFAA), unfair competition, and now, in HiQ Labs Inc. v. LinkedIn Corp., violation of a company’s constitutional rights.

The saga began in May 2017, when LinkedIn delivered a cease-and-desist letter to hiQ, warning hiQ that it was violating LinkedIn’s terms of use as both a user and an advertiser by using bots to scrape data from LinkedIn users’ public profiles.  LinkedIn threatened to bring an action against hiQ under the CFAA and also advised that LinkedIn would be taking measures to block hiQ’s bots from scraping data on LinkedIn’s site.

hiQ responded by filing suit against LinkedIn, alleging that by blocking hiQ’s bots, LinkedIn sought to gain a competitive advantage through unlawful and unfair business practices and also violated the free speech clause of the California Constitution.  hiQ maintained that because LinkedIn is a public forum, hiQ had a free speech right “to access that marketplace on equal terms with all other people and that LinkedIn’s private property rights in controlling access to its computers cannot take precedence.”

In its Complaint for Declaratory Judgment, hiQ reminded the U.S. District Court that the California Supreme Court had clearly interpreted the free speech rights guaranteed by the California Constitution as precluding an owner of private property from prohibiting access if the property constitutes a public forum. hiQ argued that because the United States Supreme Court upheld this California constitutional right, LinkedIn cannot promise a public forum and public access, but then selectively exclude members of the public from such forum.

During oral arguments, hiQ argued that that social media sites such as LinkedIn are the modern equivalent of the town square, and that allowing LinkedIn to choose who can access the site is a violation of the First Amendment and will have grave constitutional consequences.  In response, LinkedIn drew an analogy between books at a public library and the publicly available information on LinkedIn.  LinkedIn argued that just as a public library conditions access to its books on compliance with certain library policies, LinkedIn conditions access to LinkedIn’s website on its privacy policies and terms of service.

U.S. District Court Judge Edward Chen granted the preliminary injunction requested by hiQ, and ordered LinkedIn to remove any technology within 24 hours that would prevent hiQ from accessing information on public profiles.  Judge Chen found that because authorization is not necessary to access publicly available profile pages, LinkedIn was not likely to prevail on its CFAA claim.  In addition, “hiQ has raised serious questions as to whether LinkedIn, in blocking hiQ’s access to public data, possibly as a means of limiting competition, violates state law,” Judge Chen wrote.  Although the court did not hold that publicly available websites should constitute a public form, the court clearly limited its decision on the free speech claim to the preliminary injunction.  LinkedIn has since filed an appeal with the Ninth Circuit, requesting that the court vacate the preliminary injunction.

The current legal battle between LinkedIn and hiQ could have wide implications on the future of data scraping, data ownership and the control of publicly available information that users post on social media sites.  Should, as hiQ argued, private social media platforms be treated as a public forum? Or, should social media sites have the right to limit access to publicly available information? And, do individuals that post information to social media sites agree that they are essentially making data available in a public square? As Judge Chen noted at the conclusion of oral arguments, “I’ve got a feeling it’s not going to end here.”

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