March 09, 2020

Cloud and Enterprise Technology Subcommittee

Are you interested in data and looking for an article topic? 

Consider this statement in the recent Ninth Circuit opinion in hiQ Labs, Inc. v LinkedIn Corp., Case No. 17-16783 (9th Cir. Sept 9, 2019): “We note that entities that view themselves as victims of data scraping are not without resort, even if the CFAA [Computer Fraud and Abuse Act] does not apply; state law trespass to chattels claims may still be available.”

HiQ scrapes information from publicly accessible LinkedIn profiles.  When LinkedIn demanded hiQ cease scraping, hiQ sought and received an injunction barring LinkedIn from taking action under the CFAA, the Digital Millennium Copyright Act, and state statutory and common law to prevent the scraping.  The Ninth Circuit upheld the injunction.  Wrapping up its opinion, the Ninth Circuit panel suggested parties in the position of LinkedIn have recourse under other legal theories.  Do they?  Trespass to chattels?  Contract claims based on website terms?

Businesses and individuals have good reasons to attach some restrictions to data they publish on the Internet, e.g., realizing financial benefits of controlling data access and use, complying with commitments to data sources (privacy and upstream licenses), and protecting the integrity of the data from errors introduced (intentionally or maliciously) downstream. 

A closer review of recent cases and practical guidance about legal strategies to protect information published on websites could be really useful work product for Business Law Section members.   You have many publishing channels available through the Section and Committee members to help navigate the publishing process.   I encourage anyone interested in this topic to pick it up as an individual effort.