A federal lawsuit is set to go before the Supreme Court that will deal with the controversial practice known as “data scraping.” This practice, used by some companies to collect data on consumers for research and marketing purposes, has become controversial due to concerns over privacy violations. However, this lawsuit goes one step further, alleging that data scraping may be a violation of federal law, potentially introducing liability for any company that engages in data scraping.
What is Data Scraping?
Data scraping refers to the process of collecting data from a website or computer program into a format humans can read, such as a spreadsheet or an image. This ranges from simply taking a picture or screen capture of a website, to an automated data collection program taking data from public websites. It is commonly used by people for various kinds of research and marketing, and, although controversial, it has typically been seen as legal.
What is This Lawsuit?
The lawsuit, hiQ Labs, Inc. v. LinkedIn Corp. 938 F.3d 985 (9th Cir. 2019), stems from LinkedIn taking steps to block hiQ Labs from scraping data from LinkedIn’s users’ public profiles. HiQ Labs was using that data to compile “people analytics” which it would market to businesses, in direct competition with a business model LinkedIn was using as well. LinkedIn claims that hiQ engaged in data scraping on LinkedIn without the permission of either the website or its users. When LinkedIn discovered hiQ was doing this, it sent hiQ a cease and desist letter. However, hiQ continued to scrape data from public LinkedIn profiles, leading to the current lawsuit.
LinkedIn is alleging that hiQ’s behavior violated the Computer Fraud and Abuse Act (CFAA), which prohibits the unauthorized accessing of people’s data. Under this theory, hiQ’s data scraping was illegal because it harvested user data without permission from LinkedIn’s users or from the company itself. In its defense, hiQ argues that the data came from publicly accessible profiles, and thus should not constitute “unauthorized” access.
What Are the Implications?
Many companies, including companies that are not a part of the tech sector, engage in data scraping to assist in conducting marketing research. These companies will also sometimes sell the data they collect to marketing firms, who use that data to better target their advertising to the public. Under the current interpretation of the law, this is all legal, even if it might be creepy to some people to know that companies are trading information from their social media profiles.
Under this interpretation of the CFAA, however, many forms of data scraping could become illegal, requiring users to agree to having their data collected before anyone could take data from their public profiles. If the Supreme Court agrees to hear the case and accepts LinkedIn’s interpretation of the law, it could severely impact many businesses that have come to rely on data scraping for creating their marketing strategies. It might also cause companies that engage in these practices to become liable for any harm their data scraping causes, potentially costing them millions of dollars in legal liability.
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