A Green Light for Screen Scraping? Proceed With Caution…
UPDATE: As expected, LinkedIn appealed the lower court’s decision to grant a preliminary injunction compelling LinkedIn to disable any technical measures it had employed to block the defendant’s data scraping activities. LinkedIn’s brief was filed on October 3, 2017. In it, LinkedIn asserts that the relevant issue is whether the lower court “erred as matter of law by holding—contrary to the CFAA’s unambiguous text and Circuit precedent—that LinkedIn could not invoke the CFAA after LinkedIn revoked hiQ’s access to its servers by sending a particularized cease-and-desist letter and imposing technical measures to block hiQ’s data-scraping bots.” We will be watching the developments in this case closely.
While the law relating to screen scraping is unclear, a recent landmark decision from the Northern District of California, hiQ Labs, Inc. v. LinkedIn, Corp., 2017 WL 3473663 (N.D. Cal. Aug. 14, 2017), appears to limit the applicability of the CFAA as a tool against scraping. Indeed, in granting injunctive relief against LinkedIn’s blocking of hiQ’s scraping activities, the hiQ court noted that, by invoking the CFAA, “[c]ompanies could prevent competitors or consumer groups from visiting their websites to learn about their products or analyze pricing.” While the hiQ decision suggests that, at least in some circumstances, scraping of publicly available websites does not give rise to a cause of action under the CFAA, scrapers beware – the road may still have some rough patches ahead.