The US Court of Appeals for the Ninth Circuit affirmed a preliminary injunction forbidding professional networking platform LinkedIn from denying data analytics company hiQ access to publicly available LinkedIn profiles. HiQ Labs, Inc. v. LinkedIn Corporation, Case No. 17-16783 (9th Cir. Sept. 9, 2019) (Berzon, J) (Wallace, J, concurring).

HiQ sells “people analytics” focused on predictive employee data allowing employers to identity skill gaps, offer trainings and retain valuable employees. HiQ’s data is largely obtained by scraping public LinkedIn profiles with automated bots.

In 2017, after LinkedIn launched its Talent Insights product, which analyzed its own users’ data to provide employers with data-driven information for improving hiring, retention and professional development, LinkedIn sent a cease-and-desist letter to hiQ. The letter demanded that hiQ stop accessing and copying LinkedIn’s data from public profiles and asserted violations of the Computer Fraud and Abuse Act (CFAA) and the Digital Millennium Copyright Act, as well as claims under the California penal code and common law of trespass.

In response to the demand letter, hiQ immediately filed suit in federal district court seeking injunctive relief and a declaratory judgment that LinkedIn could not lawfully invoke the asserted claims against it. Granting hiQ’s motion for the preliminary injunction, the district court ordered LinkedIn to remove, and to refrain from implementing, any technical barriers to hiQ’s access to the LinkedIn public profiles. LinkedIn appealed.

The Ninth Circuit explained that a plaintiff seeking a preliminary injunction much establish that:

• It is likely to succeed on the merits.

• It is likely to suffer irreparable harm absent the injuncion.

• The balance of equities tips in its favor.

• The injunction is in the public interest.

The court also explained that the preliminary injunction stage requires it to focus only on whether hiQ has raised serious questions on the merits of the factual and legal issues presented, and does not yet require an attempt to resolve the legal dispute between the parties.

On the issue of irreparable harm, the Ninth Circuit found that the survival of hiQ’s business was threatened since the entire business depends on being able to access public LinkedIn member profiles. The Court also agreed with the district court on the balance of the equities, finding that the privacy interests of individuals who have otherwise opted to maintain a public LinkedIn profile do not outweigh hiQ’s interests in continuing its business.

Turning to the likelihood of success, the Ninth Circuit limited its inquiry to whether hiQ raised serious questions going to the merits of the claims at issue. The Court determined that hiQ raised serious questions as to the merits of its claim for tortious interference of contract, as well as the merits of LinkedIn’s legitimate business purposes defense. But the Court primarily focused on whether hiQ had raised a serious question as to the scope of the statutory coverage of the CFAA, which prohibits intentionally accessing a computer without authorization. More particularly, the Court considered whether the CFAA is limited to covering computer information for which authorization or access permission (such as a password) is required, and thus whether access of a public LinkedIn profile would fall outside of the CFAA.

The Ninth Circuit noted that there are significant public interests on both sides of the dispute, but found in favor of hiQ’s position, i.e., that giving a company such as LinkedIn a complete monopoly over the collection and use of data that it does not own (but only licenses from users) would disserve the public interest. Therefore, finding that hiQ established all of the elements required for a preliminary injunction, the Court affirmed the injunction and remanded for further proceedings.

In his concurring opinion, Judge Wallace agreed with issuance of the injunction, but warned about the use of appeals from a preliminary injunction as an attempt to obtain an appellate court’s opinion on the merits.