LinkedIn Argues for Protection of the Users’ Privacy in an Effort to Stop Data Scraping of Its Platform

Data scraping is defined as a system where a technology extracts data from a particular code base or program.  It provides results for a variety of uses and automates aspects of data aggregation.   Data scrapping is also a profitable and controversial business.

We recently wrote about legal troubles of Clearview AI, a New York-based facial recognition technology company that scrapes billions of publicly available images of individuals from the internet without their knowledge or consent. Clearview’s customers, including law enforcement and private businesses, use the company’s database to search for persons of interest using their images. Twitter, Google, Facebook, and other technology companies have requested that Clearview stop using the photos collected from their platforms.

A professional network LinkedIn has recently asked the United States Supreme Court to take on an appeal in its case against hiQ, a company that gathers data from LinkedIn users’ publicly available pages and analyzes it to determine which employees are at risk of being poached.  The company’s product provides an early warning system for employers, alerting them when their employees are likely looking for a new job.

After LinkedIn sent it cease and desist letter, hiQ filed a lawsuit arguing that LinkedIn acted anticompetitively and requested an injunction to allow it continued access to the LinkedIn website.  LinkedIn argued that hiQ’s scraping violated the Computer Fraud and Abuse Act which prohibits intentionally accessing a computer system without authorization or in excess of authorization.  The trial and appellate courts both cited with hiQ in issuing and upholding the injunction.  The appellate court reasoned that since LinkedIn profiles were publicly available, the notion that they were scraped without authorization was inapt.

In its Petition for a Writ of Certiorari to the Supreme Court, LinkedIn argues that the appellate court’s decision will have adverse consequences for the privacy interests of the users of website that make some user data publicly available.  According to LinkedIn, “[u]sers do not expect, or consent to, the exploitation of their personal information in perpetuity by third parties that the users and the website owner did not authorize and whose interests are not aligned with the interests of the owners of that personal information.”  In response, hiQ argues that there is little evidence that LinkedIn users who choose to make their profiles public maintain an expectation of privacy with respect to the information that they post publicly.

The Supreme Court is expected to decide early in its next term whether to take an appeal in that case. Whichever way the LinkedIn litigation plays out, the legal and privacy issues raised by data scrapping will likely continue be debated for some time.

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