Relief for Web Scrapers – According to the Ninth Circuit, What You Do Is Not Illegal

Legal AdviceNovember 22, 2019

Ever heard of web scraping? It is also known as web data extraction or web harvesting, and these names should be self-explanatory.

But for everyone to be on the same page, web scraping is the extraction of data from websites that can either be done manually or using a software, with the latter being the automated and more common practice.

It involves the gathering and copying of specific data into a spreadsheet or database for analysis or later retrieval.

Questions over the legality of this practice have been raised ever since the advent of the internet, with opinions being starkly divided.

Luckily, the judiciary has the last laugh when it comes to legal matters, and it seems that those claiming that web scraping is legal are on the winning side.

The CFAA

How many anti-hacking laws do you know? You must know of the main one at least, the CFAA. In full, it is the Computer Fraud and Abuse Act, and it was first enacted in 1986. Those who are against web scraping say that the practice violates this law, a claim that a three-judge 9^th Cir. panel in San Francisco disagrees with.

In the hiQ Labs v. LinkedIn case that was concluded earlier this month, the judges reached the verdict that hiQ Labs were not in violation of the CFAA by scraping data from the Microsoft-owned LinkedIn.

Before the matter reached the corridors of justice, hiQ Labs had received a cease-and-desist letter from the aggrieved company, but since they felt that what they were doing was right in the eyes of the law, the went ahead with their data extraction.

In court, LinkedIn argued that because hiQ Labs continued to harvest data from their website even after receiving the cease-and-desist, the analytics company was “trespassing.” In proper internet terminology, the resumé website felt that they had grounds to sue them for unauthorized access.

One of the judges on the panel, Marsha S. Berzon, had quite the mouthful while delivering the final ruling. Likening breaking and entering to computer hacking, she admitted that the CFAA was enacted to prevent intrusion.

Hon. Marsha Berzon, the panelist who tore apart LinkedIn’s case

No Wrongdoing

However, since the information on LinkedIn is available to the public, the judge found no wrongdoing on hiQ Labs’ part by harvesting and analyzing the data.

Not even the cease-and-desist could make a case for unauthorized access in her eyes, seeing as literally anyone in the world can access data from LinkedIn and analyze it in whichever way they may want.

Additionally, the software used by hiQ Labs to harvest data did not bypass any passwords or firewalls set up by LinkedIn made their argument moot, as the judge put it.

Isn’t the very description of public data the fact that is available for any and all interested parties? As such, Judge Berzon found no illegality in hiQ Labs’ web scraping.

The ruling is a huge win for web scrapers

This ruling by the 9^th Circuit is a huge win for web scrappers, but their woes are far from over. The issues they face are largely due to an ambiguity in the CFAA, as the Act doesn’t clearly come out against data harvesting, nor is it openly in support of it.

It’s now up to Congress to tackle this matter once and for all, before these many suits open up a can of worms.