Hiq Labs, Inc. v. Linkedin Corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HIQ LABS, INC., No. 17-16783
Plaintiff-Appellee,
D.C. No.
v. 3:17-cv-03301-EMC
LINKEDIN CORPORATION,
Defendant-Appellant. OPINION
On Remand from the United States Supreme Court
Argued and Submitted October 18, 2021
San Francisco, California
Filed April 18, 2022
Before: J. Clifford Wallace and Marsha S. Berzon, Circuit
Judges, and Terrence Berg, * District Judge.
Opinion by Judge Berzon
*
The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
2 HIQ LABS V. LINKEDIN
SUMMARY **
Preliminary Injunction / Computer Fraud and
Abuse Act
On remand from the United States Supreme Court, the
panel affirmed the district court’s order preliminarily
enjoining LinkedIn Corp. from denying hiQ Labs, Inc., a
data analytics company, access to publicly available member
profiles on LinkedIn’s professional networking website.
The panel previously affirmed the preliminary
injunction. The Supreme Court granted certiorari, vacated
the panel’s judgment, and remanded for further
consideration in light of Van Buren v. United States, 141 S.
Ct. 1648 (2021). On remand, the panel again affirmed the
preliminary injunction, concluding that Van Buren
reinforced its determination that hiQ had raised serious
questions about whether LinkedIn may invoke the Computer
Fraud and Abuse Act (“CFAA”) to preempt hiQ’s possibly
meritorious tortious interference claim.
The panel held that a plaintiff seeking a preliminary
injunction must establish that it is likely to succeed on the
merits, that it is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips
in its favor, and that an injunction is in the public interest.
The court uses a “sliding scale” approach to these factors, so
that when the balance of hardships tips sharply in the
plaintiff’s favor, it need demonstrate only serious questions
going to the merits. Applying this approach, the district
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HIQ LABS V. LINKEDIN 3
court concluded that the balance of hardships tipped sharply
in hiQ’s favor and that hiQ raised serious questions on the
merits.
The panel held that the district court did not abuse its
discretion in concluding on the preliminary injunction record
that hiQ currently had no viable way to remain in business
other than using LinkedIn public profile data for its
“Keeper” and “Skill Mapper” analytics services, and that
hiQ therefore had demonstrated a likelihood of irreparable
harm absent a preliminary injunction.
The panel concluded that the district court properly
determined that the balance of hardships tipped sharply in
hiQ’s favor, when weighing the likelihood that hiQ would
go out of business against LinkedIn’s assertion that an
injunction threatened its members’ privacy and therefore put
at risk the goodwill that LinkedIn had developed with its
members.
The panel concluded that hiQ showed a sufficient
likelihood of establishing the elements of its claim for
intentional interference with contract, and it raised a serious
question on the merits of LinkedIn’s affirmative justification
defense. Further, hiQ raised serious questions about whether
LinkedIn could invoke the CFAA to preempt hiQ’s possibly
meritorious tortious interference claim. The CFAA
prohibits accessing a “protected computer” without
authorization. The panel concluded that to scrape LinkedIn
data, hiQ needed to access LinkedIn servers, which were
“protected computers.” At issue was whether, once hiQ
received LinkedIn’s cease-and-desist letter, any further
scraping and use of LinkedIn’s data was “without
authorization” within the meaning of the CFAA. The panel
concluded that hiQ raised a serious question as to whether
4 HIQ LABS V. LINKEDIN
the CFAA “without authorization” concept is inapplicable
where, as here, prior authorization is not generally required
but a particular person—or bot—is refused access. The
panel concluded that the reasoning of Van Buren reinforced
its interpretation of the CFAA, although Van Buren did not
directly address the CFAA’s “without authorization” clause,
but rather considered the statute’s “exceeds authorized
access” clause.
Finally, the panel concluded that the district court
properly determined that, on balance, the public interest
favored hiQ’s position.
The panel affirmed the district court’s determination that
hiQ had established the elements required for a preliminary
injunction and remanded for further proceedings.
HIQ LABS V. LINKEDIN 5
COUNSEL
Donald B. Verrilli Jr. (argued), Chad I. Golder, Rosemarie
T. Ring, and Jonathan S. Meltzer, Munger Tolles & Olson
LLP, Washington, D.C.; Jonathan H. Blavin, Nicholas Fram,
and Elia Herrera, Munger Tolles & Olson LLP, San
Francisco, California; E. Joshua Rosenkranz, Orrick
Herrington & Sutcliffe LLP, New York, New York; Eric A.
Shumsky, Orrick Herrington & Sutcliffe LLP, Washington,
D.C.; for Defendant-Appellant.
Renita Sharma (argued) and Richard Corey, Quinn
Emmanuel Urquhart & Sullivan LLP, New York, New York;
Terry Wit, Quinn Emmanuel Urquhart & Sullivan LLP, San
Francisco, California; Aaron M. Panner, Gregory G.
Rapawy, and T. Dietrich Hill, Kellogg Hansen Todd Figel &
Frederick PLLC, Washington, D.C.; C. Brandon Wisoff,
Deepak Gupta, Jeffrey G. Lau, and Rebecca H. Stephens,
Farella Braun & Martell LLP, San Francisco, California;
Laurence H. Tribe, Cambridge, Massachusetts; for Plaintiff-
Appellee.
Nicholas J. Boyle, John S. Williams, and Eric J. Hamilton,
Williams & Connolly LLP, Washington, D.C., for Amicus
Curiae CoStar Group Inc.
Perry J. Viscounty, Latham & Watkins LLP, San Francisco,
California; Gregory G. Garre, Latham & Watkins LLP,
Washington, D.C.; for Amicus Curiae Craigslist Inc.
Alan J. Butler and Marc Rotenberg, Electronic Privacy
Information Center, Washington, D.C., for Amicus Curiae
Electronic Privacy Information Center (EPIC).
6 HIQ LABS V. LINKEDIN
Mukund Rathi, Aaron Mackey, Kurt Opsahl, Jamie
Williams, Corynne McSherry, Cindy Cohn, Nathan
Cardozo, Electronic Frontier Foundation, San Francisco,
California, for Amici Curiae Electronic Frontier Foundation,
DuckDuckGo, and Internet Archive.
Thomas V. Christopher, Law Offices of Thomas V.
Christopher, San Francisco, California, for Amicus Curiae
3taps Inc.
Kenneth L. Wilton and James M. Harris, Seyfarth Shaw
LLP, Los Angeles, California; Carrie P. Price, Seyfarth
Shaw LLP, San Francisco, California; for Amicus Curiae
Scraping Hub Ltd.
Katie Townsend, Bruce D. Brown, Gabe Rottman, Grayson
Clary, and Mailyn Fidler, Reporters Committee for Freedom
of the Press, Washington, D.C., for Amici Curiae Reporters
Committee for Freedom of the Press and 30 News Media
Organizations.
HIQ LABS V. LINKEDIN 7
OPINION
BERZON, Circuit Judge:
We first issued an opinion in this case in September
2019, addressing the question whether LinkedIn, the
professional networking website, could prevent a
competitor, hiQ, from collecting and using information that
LinkedIn users had shared on their public profiles, available
for viewing by anyone with a web browser. hiQ Labs, Inc. v.
LinkedIn Corp., 938 F.3d 985 (9th Cir. 2019). HiQ, a data
analytics company, had obtained a preliminary injunction
forbidding LinkedIn from denying hiQ access to publicly
available LinkedIn member profiles. At the preliminary
injunction stage, we did not resolve the companies’ legal
dispute definitively, nor did we address all the claims and
defenses they had pleaded in the district court. Instead, we
focused on whether hiQ had raised serious questions on the
merits of the factual and legal issues presented to us, as well
as on the other requisites for preliminary relief. We
concluded that hiQ had done so, and we therefore upheld the
preliminary injunction.
The Supreme Court granted LinkedIn’s petition for writ
of certiorari, vacated the judgment, and remanded this case
for further consideration in light of Van Buren v. United
States, 141 S. Ct. 1648 (2021). LinkedIn Corp. v. hiQ Labs,
Inc., 141 S. Ct. 2752 (2021). We ordered supplemental
briefing and held oral argument on the effect of Van Buren
on this appeal. Having concluded that Van Buren reinforces
our determination that hiQ has raised serious questions about
whether LinkedIn may invoke the Computer Fraud and
Abuse Act (“CFAA”) to preempt hiQ’s possibly meritorious
tortious interference claim, we once again affirm the
preliminary injunction.
8 HIQ LABS V. LINKEDIN
I.
Founded in 2002, LinkedIn is a professional networking
website with over 500 million members. 1 Members post
resumes and job listings and build professional
“connections” with other members. LinkedIn specifically
disclaims ownership of the information users post to their
personal profiles: according to LinkedIn’s User Agreement,
members own the content and information they submit or
post to LinkedIn and grant LinkedIn only a non-exclusive
license to “use, copy, modify, distribute, publish, and
process” that information.
LinkedIn allows its members to choose among various
privacy settings. Members can specify which portions of
their profile are visible to the general public (that is, to both
LinkedIn members and nonmembers), and which portions
are visible only to direct connections, to the member’s
“network” (consisting of LinkedIn members within three
degrees of connectivity), or to all LinkedIn members. 2 This
1
Our recitation of the facts reflects the record before us when this
appeal was initially submitted in 2018. Given the speed at which the
Internet evolves, we do not doubt that some of the facts presented here
became obsolete while this case traveled to the Supreme Court and back.
In addition, LinkedIn recently filed a motion in the district court to
dissolve the preliminary injunction on the ground that hiQ is “out of
business.” Order Deferring Ruling on Defendant’s Motion to Dissolve
Preliminary Injunction, No. 17-cv-03301-EMC, at 2 (N.D. Cal. Oct. 5,
2021), ECF 224. HiQ responded that it remains an intact business entity
and has been approached by “prospective business partners” interested
in “its technology that allows for automated access of public profiles on
LinkedIn’s website.” Id. The district court deferred ruling on the motion
pending our decision in this appeal. Id. at 3.
Direct connections (or first-degree connections) are people to
2
whom a LinkedIn member is connected by virtue of having invited them
HIQ LABS V. LINKEDIN 9
case deals only with profiles made visible to the general
public.
LinkedIn also offers all members—whatever their
profile privacy settings—a “Do Not Broadcast” option with
respect to every change they make to their profiles. If a
LinkedIn member selects this option, her connections will
not be notified when she updates her profile information,
although the updated information will still appear on her
profile page (and thus be visible to anyone permitted to view
her profile under her general privacy setting). More than
50 million LinkedIn members have, at some point, elected to
employ the “Do Not Broadcast” feature, and approximately
20 percent of all active users who updated their profiles
between July 2016 and July 2017—whatever their privacy
setting—employed the “Do Not Broadcast” setting.
LinkedIn has taken steps to protect the data on its website
from what it perceives as misuse or misappropriation. The
instructions in LinkedIn’s “robots.txt” file—a text file used
by website owners to communicate with search engine
crawlers and other web robots—prohibit access to LinkedIn
servers via automated bots, except that certain entities, like
the Google search engine, have express permission from
to connect and had the invitation accepted, or of having accepted their
invitation to connect. Second-degree connections are people connected
to a member’s first-degree connections. Third-degree connections are
people connected to a member’s second-degree connections. A LinkedIn
member’s network consists of the member’s first-degree, second-degree,
and third-degree connections, as well as fellow members of the same
LinkedIn Groups (groups of members in the same industry or with
similar interests that any member can request to join).
10 HIQ LABS V. LINKEDIN
LinkedIn for bot access. 3 LinkedIn also employs several
technological systems to detect suspicious activity and
restrict automated scraping. 4 For example, LinkedIn’s
Quicksand system detects non-human activity indicative of
scraping; its Sentinel system throttles (slows or limits) or
even blocks activity from suspicious IP addresses; 5 and its
3
A web robot (or “bot”) is an application that performs automated
tasks such as retrieving and analyzing information. See Definition of
“bot,” Merriam-Webster Dictionary, https://www.merriam-webster.
com/dictionary/bot (last visited March 15, 2022). A web crawler is
one common type of bot that systematically searches the Internet and
downloads copies of web pages, which can then be indexed by a search
engine. See Assoc. Press v. Meltwater U.S. Holdings, Inc., 931 F. Supp.
2d 537, 544 (S.D.N.Y. 2013); Definition of “web crawler,” Merriam-
Webster Dictionary, https://www.merriam-webster.com/dictionary/
web%20crawler (last visited March 15, 2022). A robots.txt file, also
known as the robots exclusion protocol, is a widely used standard for
stating the rules that a web server has adopted to govern a bot’s behavior
on that server. See About /robots.txt, http://www.robotstxt.org/
robotstxt.html (last visited March 15, 2022). For example, a robots.txt
file might instruct specified robots to ignore certain files when crawling
a site, so that the files do not appear in search engine results. Adherence
to the rules in a robots.txt file is voluntary; malicious bots may
deliberately choose not to honor robots.txt rules and may in turn be
punished with a denial of access to the website in question. See Can I
Block Just Bad Robots?, http://www.robotstxt.org/faq/blockjustbad.html
(last visited March 15, 2022); cf. Assoc. Press, 931 F. Supp. 2d at 563.
4
Scraping involves extracting data from a website and copying it
into a structured format, allowing for data manipulation or analysis. See,
e.g., What Is a Screen Scraper?, WiseGeek, http://www.wisegeek.com/
what-is-a-screen-scraper.htm (last visited March 15, 2022). Scraping can
be done manually, but as in this case, it is typically done by a web robot
or “bot.” See supra note 3.
5
“IP address” is an abbreviation for Internet protocol address, which
is a numerical identifier for each computer or network connected to the
Internet. See Definition of “IP Address,” Merriam-Webster
HIQ LABS V. LINKEDIN 11
Org Block system generates a list of known “bad” IP
addresses serving as large-scale scrapers. In total, LinkedIn
blocks approximately 95 million automated attempts to
scrape data every day, and has restricted over 11 million
accounts suspected of violating its User Agreement, 6
including through scraping.
HiQ is a data analytics company founded in 2012. Using
automated bots, it scrapes information that LinkedIn users
have included on public LinkedIn profiles, including name,
job title, work history, and skills. It then uses that
information, along with a proprietary predictive algorithm,
to yield “people analytics,” which it sells to business clients.
HiQ offers two such analytics. The first, Keeper,
purports to identify employees at the greatest risk of being
recruited away. According to hiQ, the product enables
employers to offer career development opportunities,
retention bonuses, or other perks to retain valuable
employees. The second, Skill Mapper, summarizes
employees’ skills in the aggregate. Among other things, the
tool is supposed to help employers identify skill gaps in their
Dictionary, https://www.merriam-webster.com/dictionary/IP%20add
ress (last visited March 15, 2022).
6
Section 8.2 of the LinkedIn User Agreement to which hiQ agreed
states that users agree not to “[s]crape or copy profiles and information
of others through any means (including crawlers, browser plugins and
add-ons, and any other technology or manual work),” “[c]opy or use the
information, content or data on LinkedIn in connection with a
competitive service (as determined by LinkedIn),” “[u]se manual or
automated software, devices, scripts robots, other means or processes to
access, ‘scrape,’ ‘crawl’ or ‘spider’ the Services or any related data or
information,” or “[u]se bots or other automated methods to access the
Services.” HiQ is no longer bound by the User Agreement, as LinkedIn
has terminated hiQ’s user status.
12 HIQ LABS V. LINKEDIN
workforces so that they can offer internal training in those
areas, promoting internal mobility and reducing the expense
of external recruitment.
HiQ regularly organizes “Elevate” conferences, during
which participants discuss hiQ’s business model and share
best practices in the people analytics field. LinkedIn
representatives participated in Elevate conferences
beginning in October 2015. At least ten LinkedIn
representatives attended the conferences. LinkedIn
employees have also spoken at Elevate conferences. In 2016,
a LinkedIn employee was awarded the Elevate “Impact
Award.” LinkedIn employees thus had an opportunity to
learn about hiQ’s products, including “that [one of] hiQ’s
product[s] used data from a variety of sources—internal and
external—to predict employee attrition” and that hiQ
“collected skills data from public professional profiles in
order to provide hiQ’s customers information about their
employees’ skill sets.”
In recent years, LinkedIn has explored ways to capitalize
on the vast amounts of data contained in LinkedIn profiles
by marketing new products. In June 2017, LinkedIn’s Chief
Executive Officer (“CEO”), Jeff Weiner, appearing on CBS,
explained that LinkedIn hoped to “leverage all this
extraordinary data we’ve been able to collect by virtue of
having 500 million people join the site.” Weiner mentioned
as possibilities providing employers with data-driven
insights about what skills they will need to grow and where
they can find employees with those skills. Since then,
LinkedIn has announced a new product, Talent Insights,
HIQ LABS V. LINKEDIN 13
which analyzes LinkedIn data to provide companies with
such data-driven information. 7
In May 2017, LinkedIn sent hiQ a cease-and-desist letter,
asserting that hiQ was in violation of LinkedIn’s User
Agreement and demanding that hiQ stop accessing and
copying data from LinkedIn’s server. The letter stated that if
hiQ accessed LinkedIn’s data in the future, it would be
violating state and federal law, including the CFAA, the
Digital Millennium Copyright Act (“DMCA”), California
Penal Code § 502(c), and the California common law of
trespass. The letter further stated that LinkedIn had
“implemented technical measures to prevent hiQ from
accessing, and assisting others to access, LinkedIn’s site,
through systems that detect, monitor, and block scraping
activity.”
HiQ’s response was to demand that LinkedIn recognize
hiQ’s right to access LinkedIn’s public pages and to threaten
to seek an injunction if LinkedIn refused. A week later, hiQ
filed an action, seeking injunctive relief based on California
law and a declaratory judgment that LinkedIn could not
lawfully invoke the CFAA, the DMCA, California Penal
Code § 502(c), or the common law of trespass against it. HiQ
7
The record does not specifically name Talent Insights, but at a
district court hearing on June 29, 2017, counsel for hiQ referenced
Mr. Weiner’s statements on CBS and stated that “in the past 24 hours
we’ve received word . . . that LinkedIn is launching a product that is
essentially the same or very similar to [hiQ’s] Skill Mapper, and trying
to market it head-to-head against us.” LinkedIn has since launched
Talent Insights, which, among other things, promises to help employers
“understand the . . . skills that are growing fastest at your company.”
See https://business.linkedin.com/talent-solutions/blog/product-updates/
2018/linkedin-talent-insights-now-available (last visited March 15,
2022).
14 HIQ LABS V. LINKEDIN
also filed a request for a temporary restraining order, which
the parties subsequently agreed to convert into a motion for
a preliminary injunction.
The district court granted hiQ’s motion. It ordered
LinkedIn to withdraw its cease-and-desist letter, to remove
any existing technical barriers to hiQ’s access to public
profiles, and to refrain from putting in place any legal or
technical measures with the effect of blocking hiQ’s access
to public profiles. LinkedIn timely appealed.
II.
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). All
four elements must be satisfied. See, e.g., Am. Trucking
Ass’n v. City of Los Angeles, 559 F.3d 1046, 1057 (9th Cir.
2009). We use a “sliding scale” approach to these factors,
according to which “a stronger showing of one element may
offset a weaker showing of another.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). So,
when the balance of hardships tips sharply in the plaintiff’s
favor, the plaintiff need demonstrate only “serious questions
going to the merits.” Id. at 1135.
Applying that sliding scale approach, the district court
granted hiQ a preliminary injunction, concluding that the
balance of hardships tips sharply in hiQ’s favor and that hiQ
raised serious questions on the merits. We review the district
court’s decision to grant a preliminary injunction for abuse
of discretion. The grant of a preliminary injunction
constitutes an abuse of discretion if the district court’s
HIQ LABS V. LINKEDIN 15
evaluation or balancing of the pertinent factors is “illogical,
implausible, or without support in the record.” Doe v. Kelly,
878 F.3d 710, 713 (9th Cir. 2017).
A. Irreparable Harm
We begin with the likelihood of irreparable injury to hiQ
if preliminary relief were not granted.
“[M]onetary injury is not normally considered
irreparable.” Los Angeles Mem’l Coliseum Comm’n v. Nat’l
Football League, 634 F.2d 1197, 1202 (9th Cir. 1980).
Nonetheless, “[t]he threat of being driven out of business is
sufficient to establish irreparable harm.” Am. Passage Media
Corp. v. Cass Commc’ns, Inc., 750 F.2d 1470, 1474 (9th Cir.
1985). As the Second Circuit has explained, “[t]he loss of
. . . an ongoing business representing many years of effort
and the livelihood of its . . . owners, constitutes irreparable
harm. What plaintiff stands to lose cannot be fully
compensated by subsequent monetary damages.” Roso Lino
Beverage Distributors, Inc. v. Coca Cola Bottling Co. of
New York, Inc., 749 F.2d 124, 125–26 (2d Cir. 1984) (per
curiam). Thus, showing a threat of “extinction” is enough to
establish irreparable harm, even when damages may be
available and the amount of direct financial harm is
ascertainable. Am. Passage Media Corp., 750 F.2d at 1474.
The district court found credible hiQ’s assertion that the
survival of its business is threatened absent a preliminary
injunction. The record provides ample support for that
finding.
According to hiQ’s CEO, “hiQ’s entire business depends
on being able to access public LinkedIn member profiles,”
as “there is no current viable alternative to LinkedIn’s
member database to obtain data for hiQ’s Keeper and Skill
16 HIQ LABS V. LINKEDIN
Mapper services.” Without access to LinkedIn public profile
data, the CEO averred, hiQ will likely be forced to breach its
existing contracts with clients such as eBay, Capital One,
and GoDaddy, and to pass up pending deals with prospective
clients. The harm hiQ faces absent a preliminary injunction
is not purely hypothetical. HiQ was in the middle of a
financing round when it received LinkedIn’s cease-and-
desist letter. The CEO reported that, in light of the
uncertainty about the future viability of hiQ’s business, that
financing round stalled, and several employees left the
company. If LinkedIn prevails, hiQ’s CEO further asserted,
hiQ would have to “lay off most if not all its employees, and
shutter its operations.”
LinkedIn maintains that hiQ’s business model does not
depend on access to LinkedIn data. It insists that alternatives
to LinkedIn data exist, and points in particular to the
professional data some users post on Facebook. But hiQ’s
model depends on access to publicly available data from
people who choose to share their information with the world.
Facebook data, by contrast, is not generally accessible, see
infra pp. 37, and therefore is not an equivalent alternative
source of data.
LinkedIn also urges that even if there is no adequate
alternative database, hiQ could collect its own data through
employee surveys. But hiQ is a data analytics company, not
a data collection company. Suggesting that hiQ could
fundamentally change the nature of its business, not simply
the manner in which it conducts its current business, is a
recognition that hiQ’s current business could not survive
without access to LinkedIn public profile data. Creating a
data collection system would undoubtedly require a
considerable amount of time and expense. That hiQ could
feasibly remain in business with no products to sell while
HIQ LABS V. LINKEDIN 17
raising the required capital and devising and implementing
an entirely new data collection system is at least highly
dubious.
In short, the district court did not abuse its discretion in
concluding on the preliminary injunction record that hiQ
currently has no viable way to remain in business other than
using LinkedIn public profile data for its Keeper and Skill
Mapper services, and that HiQ therefore has demonstrated a
likelihood of irreparable harm absent a preliminary
injunction.
B. Balance of the Equities
Next, the district court “balance[d] the interests of all
parties and weigh[ed] the damage to each in determining the
balance of the equities.” CTIA - The Wireless Ass’n v. City
of Berkeley, Calif., 928 F.3d 832, 852 (9th Cir. 2019)
(internal quotation marks and citation omitted). Again, it did
not abuse its discretion in doing so.
On one side of the scale is the harm to hiQ just discussed:
the likelihood that, without an injunction, it will go out of
business. On the other side, LinkedIn asserts that the
injunction threatens its members’ privacy and therefore puts
at risk the goodwill LinkedIn has developed with its
members. As the district court observed, “the fact that a user
has set his profile to public does not imply that he wants any
third parties to collect and use that data for all purposes.”
LinkedIn points in particular to the more than 50 million
members who have used the “Do Not Broadcast” feature to
ensure that other users are not notified when the member
makes a profile change. According to LinkedIn, the
popularity of the “Do Not Broadcast” feature indicates that
many members—including members who choose to share
their information publicly—do not want their employers to
18 HIQ LABS V. LINKEDIN
know they may be searching for a new job. An employer
who learns that an employee may be planning to leave will
not necessarily reward that employee with a retention bonus.
Instead, the employer could decide to limit the employee’s
access to sensitive information or even to terminate the
employee.
There is support in the record for the district court’s
connected conclusions that (1) LinkedIn’s assertions have
some merit; and (2) there are reasons to discount them to
some extent. First, there is little evidence that LinkedIn users
who choose to make their profiles public actually maintain
an expectation of privacy with respect to the information that
they post publicly, and it is doubtful that they do. LinkedIn’s
privacy policy clearly states that “[a]ny information you put
on your profile and any content you post on LinkedIn may
be seen by others” and instructs users not to “post or add
personal data to your profile that you would not want to be
public.”
Second, there is no evidence in the record to suggest that
most people who select the “Do Not Broadcast” option do so
to prevent their employers from being alerted to profile
changes made in anticipation of a job search. As the district
court stated, there are other reasons why users may choose
that option—most notably, many users may simply wish to
avoid sending their connections annoying notifications each
time there is a profile change. In any event, employers can
always directly consult the profiles of users who chose to
make their profiles public to see if any recent changes have
been made. Employees intent on keeping such information
from their employers can do so by rejecting public exposure
of their profiles and eliminating their employers as contacts.
Finally, LinkedIn’s own actions undercut its argument
that users have an expectation of privacy in public profiles.
HIQ LABS V. LINKEDIN 19
LinkedIn’s “Recruiter” product enables recruiters to
“follow” prospects, get “alert[ed] when prospects make
changes to their profiles,” and “use those [alerts] as signals
to reach out at just the right moment,” without the prospect’s
knowledge. 8 And subscribers to LinkedIn’s “talent
recruiting, marketing and sales solutions” can export data
from members’ public profiles, such as “name, headline,
current company, current title, and location.”
In short, even if some users retain some privacy interests
in their information notwithstanding their decision to make
their profiles public, we cannot, on the record before us,
conclude that those interests—or more specifically,
LinkedIn’s interest in preventing hiQ from scraping those
profiles—are significant enough to outweigh hiQ’s interest
in continuing its business, which depends on accessing,
analyzing, and communicating information derived from
public LinkedIn profiles.
Nor do the other harms asserted by LinkedIn tip the
balance of harms with regard to preliminary relief. LinkedIn
invokes an interest in preventing “free riders” from using
profiles posted on its platform. But LinkedIn has no
protected property interest in the data contributed by its
users, as the users retain ownership over their profiles. And
as to the publicly available profiles, the users quite evidently
intend them to be accessed by others, including for
commercial purposes—for example, by employers seeking
to hire individuals with certain credentials. Of course,
LinkedIn could satisfy its “free rider” concern by eliminating
8
Recruiter does not provide alerts about profile changes made by
LinkedIn members who select the “Do Not Broadcast” setting.
20 HIQ LABS V. LINKEDIN
the public access option, albeit at a cost to the preferences of
many users and, possibly, to its own bottom line.
We conclude that the district court’s determination that
the balance of hardships tips sharply in hiQ’s favor is not
“illogical, implausible, or without support in the record.”
Kelly, 878 F.3d at 713.
C. Likelihood of Success
Because hiQ has established that the balance of
hardships tips decidedly in its favor, the likelihood-of-
success prong of the preliminary injunction inquiry focuses
on whether hiQ has raised “serious questions going to the
merits.” Alliance for the Wild Rockies, 632 F.3d at 1131. It
has.
As usual, we consider only the claims and defenses that
the parties press on appeal. We recognize that the companies
have invoked additional claims and defenses in the district
court, and we express no opinion as to whether any of those
claims or defenses might ultimately prove meritorious. Thus,
while hiQ advanced several affirmative claims in support of
its request for preliminary injunctive relief, here we consider
only whether hiQ has raised serious questions on the merits
of its claims either for intentional interference with contract
or unfair competition, under California’s Unfair
Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.
Likewise, while LinkedIn has asserted that it has “claims
under the Digital Millennium Copyright Act and under
trespass and misappropriation doctrines,” it has chosen for
present purposes to focus on a defense based on the CFAA,
so that is the sole defense to hiQ’s claims that we address
here.
HIQ LABS V. LINKEDIN 21
1. Tortious Interference with Contract
HiQ alleges that LinkedIn intentionally interfered with
hiQ’s contracts with third parties. “The elements which a
plaintiff must plead to state the cause of action for intentional
interference with contractual relations are (1) a valid contract
between plaintiff and a third party; (2) defendant’s
knowledge of this contract; (3) defendant’s intentional acts
designed to induce a breach or disruption of the contractual
relationship; (4) actual breach or disruption of the
contractual relationship; and (5) resulting damage.” Pac.
Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal. 3d 1118,
1126 (1990). 9
HiQ has shown a sufficient likelihood of establishing
each of these elements. First, LinkedIn does not contest
hiQ’s evidence that contracts exist between hiQ and some
customers, including eBay, Capital One, and GoDaddy.
Second, hiQ will likely be able to establish that LinkedIn
knew of hiQ’s scraping activity and products for some time.
9
Under California law, tortious interference with contract claims are
not limited to circumstances in which the defendant has caused the third
party with whom the plaintiff has contracted to breach the agreement.
“The most general application of the rule is to cases where the party with
whom the plaintiff has entered into an agreement has been induced to
breach it, but the rule is also applicable where the plaintiff’s performance
has been prevented or rendered more expensive or burdensome and
where he has been induced to breach the contract by conduct of the
defendant, such as threats of economic reprisals.” Lipman v. Brisbane
Elementary Sch. Dist., 55 Cal. 2d 224, 232 (1961), abrogated on other
grounds by Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 753 n.37 (1989);
see also Pac. Gas & Elec. Co., 50 Cal. 3d at 1129 (“We have recognized
that interference with the plaintiff’s performance may give rise to a claim
for interference with contractual relations if plaintiff’s performance is
made more costly or more burdensome.”).
22 HIQ LABS V. LINKEDIN
LinkedIn began sending representatives to hiQ’s Elevate
conferences in October 2015. At those conferences, hiQ
discussed its business model, including its use of data from
external sources to predict employee attrition. LinkedIn’s
director of business operations and analytics, who attended
several Elevate conferences, specifically “recall[s] someone
from hiQ stating [at the April 2017 conference] that they
collected skills data from public professional profiles in
order to provide hiQ’s customers information about their
employees’ skill sets.” Additionally, LinkedIn
acknowledged in its cease-and-desist letter that “hiQ has
stated during marketing presentations that its Skill Mapper
product is built on profile data from LinkedIn.” Finally, at a
minimum, LinkedIn knew of hiQ’s contracts as of May 31,
2017, when hiQ responded to LinkedIn’s cease-and-desist
letter and identified both current and prospective hiQ clients.
Third, LinkedIn’s threats to invoke the CFAA and
implementation of technical measures selectively to ban hiQ
bots could well constitute “intentional acts designed to
induce a breach or disruption” of hiQ’s contractual
relationships with third parties. Pac. Gas & Elec. Co.,
50 Cal. 3d at 1126; cf. Winchester Mystery House, LLC v.
Global Asylum, Inc., 210 Cal. App. 4th 579, 597 (2012)
(indicating that “cease-and-desist letters . . . refer[ring] to a[]
contractual or other economic relationship between plaintiff
and any third party” could “establish . . . the . . . intent
element[] of the interference claim[]”).
Fourth, the contractual relationships between hiQ and
third parties have been disrupted and “now hang[] in the
balance.” Without access to LinkedIn data, hiQ will likely
be unable to deliver its services to its existing customers as
promised.
HIQ LABS V. LINKEDIN 23
Last, hiQ is harmed by the disruption to its existing
contracts and interference with its pending contracts.
Without the revenue from sale of its products, hiQ will likely
go out of business. See supra pp. 15–17.
LinkedIn does not specifically challenge hiQ’s ability to
make out any of these elements of a tortious interference
claim. Instead, LinkedIn maintains that it has a “legitimate
business purpose” defense to any such claim. Cf. Quelimane
Co. v. Stewart Title Guar. Co., 19 Cal. 4th 26, 57 (1998), as
modified (Sept. 23, 1998). That contention is an affirmative
justification defense for which LinkedIn bears the burden of
proof. See id.Under California law, a legitimate business purpose can
indeed justify interference with contract, but not just any
such purpose suffices. See id. at 55–56. Where a contractual
relationship exists, the societal interest in “contractual
stability is generally accepted as of greater importance than
competitive freedom.” Imperial Ice Co. v. Rossier, 18 Cal.
2d 33, 36 (1941). Emphasizing the “distinction between
claims for the tortious disruption of an existing contract and
claims that a prospective contractual or economic
relationship has been interfered with by the defendant,” the
California Supreme Court instructs that we must “bring[] a
greater solicitude to those relationships that have ripened
into agreements.” Della Penna v. Toyota Motor Sales,
U.S.A., Inc., 11 Cal. 4th 376, 392 (1995). Thus, interference
with an existing contract is not justified simply because a
competitor “seeks to further his own economic advantage at
the expense of another.” Imperial Ice, 18 Cal. 2d at 36; see
id. at 37 (“A party may not . . . under the guise of
competition . . . induce the breach of a competitor’s contract
in order to secure an economic advantage.”). Rather,
interference with contract is justified only when the party
24 HIQ LABS V. LINKEDIN
alleged to have interfered acted “to protect an interest that
has greater social value than insuring the stability of the
contract” interfered with. Id. at 35.
Accordingly, California courts apply a balancing test to
determine whether the interests advanced by interference
with contract outweigh the societal interest in contractual
stability:
Whether an intentional interference by a third
party is justifiable depends upon a balancing
of the importance, social and private, of the
objective advanced by the interference
against the importance of the interest
interfered with, considering all circumstances
including the nature of the actor’s conduct
and the relationship between the parties.
Herron v. State Farm Mut. Ins. Co., 56 Cal. 2d 202, 206
(1961). Considerations include whether “the means of
interference involve no more than recognized trade
practices,” Buxbom v. Smith, 23 Cal. 2d 535, 546 (1944), and
whether the conduct is “within the realm of fair
competition,” Inst. of Veterinary Pathology, Inc. v. Cal.
Health Labs., Inc., 116 Cal. App. 3d 111, 127 (Cal. Ct. App.
1981). The “determinative question” is whether the business
interest is pretextual or “asserted in good faith.” Richardson
v. La Rancherita, 98 Cal. App. 3d 73, 81 (Cal. Ct. App.
1979).
Balancing the interest in contractual stability and the
specific interests interfered with against the interests
advanced by the interference, we agree with the district court
that hiQ has at least raised a serious question on the merits
of LinkedIn’s affirmative justification defense. First, hiQ has
a strong commercial interest in fulfilling its contractual
HIQ LABS V. LINKEDIN 25
obligations to large clients like eBay and Capital One. Those
companies benefit from hiQ’s ability to access, aggregate,
and analyze data from LinkedIn profiles.
Second, LinkedIn’s means of interference is likely not a
“recognized trade practice” as California courts have
understood that term. “Recognized trade practices” include
such activities as “advertising,” “price-cutting,” and
“hir[ing] the employees of another for use in the hirer’s
business,” Buxbom, 23 Cal. 2d at 546–47—all practices
which may indirectly interfere with a competitor’s contracts
but do not fundamentally undermine a competitor’s basic
business model. LinkedIn’s proactive technical measures to
selectively block hiQ’s access to the data on its site are not
similar to trade practices previously recognized as
acceptable justifications for contract interference.
Further, LinkedIn’s conduct may well not be “within the
realm of fair competition.” Inst. of Veterinary Pathology,
116 Cal. App. 3d at 127. HiQ has raised serious questions
about whether LinkedIn’s actions to ban hiQ’s bots were
taken in furtherance of LinkedIn’s own plans to introduce a
competing professional data analytics tool. There is evidence
from which it can be inferred that LinkedIn knew about hiQ
and its reliance on external data for several years before the
present controversy. Its decision to send a cease-and-desist
letter occurred within a month of the announcement by
LinkedIn’s CEO that LinkedIn planned to leverage the data
on its platform to create a new product for employers with
some similarities to hiQ’s Skill Mapper product. If
companies like LinkedIn, whose servers hold vast amounts
of public data, are permitted selectively to ban only potential
competitors from accessing and using that otherwise public
data, the result—complete exclusion of the original
innovator in aggregating and analyzing the public
26 HIQ LABS V. LINKEDIN
information—may well be considered unfair competition
under California law. 10
Finally, LinkedIn’s asserted private business interests—
“protecting its members’ data and the investment made in
developing its platform” and “enforcing its User
Agreements’ prohibitions on automated scraping”—are
relatively weak. LinkedIn has only a non-exclusive license
to the data shared on its platform, not an ownership interest.
Its core business model—providing a platform to share
professional information—does not require prohibiting
hiQ’s use of that information, as evidenced by the fact that
hiQ used LinkedIn data for some time before LinkedIn sent
its cease-and-desist letter. As to its members’ interests in
their data, for the reasons already explained, see supra
pp. 17–20, we agree with the district court that members’
privacy expectations regarding information they have shared
in their public profiles are “uncertain at best.” Further, there
is evidence that LinkedIn has itself developed a data
analytics tool similar to HiQ’s products, undermining
LinkedIn’s claim that it has its members’ privacy interests in
mind. Finally, LinkedIn has not explained how it can enforce
its user agreement against hiQ now that its user status has
been terminated.
For all these reasons, LinkedIn may well not be able to
demonstrate a “legitimate business purpose” that could
justify the intentional inducement of a contract breach, at
10
The district court determined that LinkedIn’s legitimate business
purpose defense overlapped with hiQ’s claim under California’s Unfair
Competition Law (“UCL”), which the district court found raised serious
questions on the merits: “hiQ has presented some evidence supporting
its assertion that LinkedIn’s decision to revoke hiQ’s access to its data
was made for the purpose of eliminating hiQ as a competitor in the data
analytics field, and thus potentially ‘violates [the UCL].’”
HIQ LABS V. LINKEDIN 27
least on the record now before us. We therefore conclude
that hiQ has raised at least serious questions going to the
merits of its tortious interference with contract claim.
Because such a showing on the tortious interference claim is
sufficient to support an injunction prohibiting LinkedIn from
selectively blocking hiQ’s access to public member profiles,
we do not reach hiQ’s unfair competition claim. 11
2. Computer Fraud and Abuse Act (CFAA)
Our inquiry does not end, however, with the state law
tortious interference claim. LinkedIn argues that even if hiQ
can show a likelihood of success on any of its state law
causes of action, all those causes of action are preempted by
the CFAA, 18 U.S.C. § 1030, which LinkedIn asserts that
hiQ violated.
The CFAA states that “[w]hoever . . . intentionally
accesses a computer without authorization or exceeds
authorized access, and thereby obtains . . . information from
any protected computer . . . shall be punished” by fine or
11
LinkedIn also advances a business interest in “asserting its rights
under federal and state law.” That interest depends upon the scope of
LinkedIn’s rights under the CFAA and California’s CFAA analogue,
California Penal Code § 502. Similarly, LinkedIn argues that there can
be no tortious interference because hiQ’s contracts are premised on
unauthorized access to LinkedIn data and are therefore illegal. Under
California law, “[i]f the central purpose of the contract is tainted with
illegality, then the contract as a whole cannot be enforced.” Marathon
Ent., Inc. v. Blasi, 42 Cal. 4th 974, 996 (2008), as modified (Mar. 12,
2008); see also Cal. Civ. Code § 1598 (“Where a contract has but a single
object, and such object is unlawful, whether in whole or in part, or wholly
impossible of performance . . . the entire contract is void.”). As we
explain next, however, hiQ has raised at least serious questions in
support of its position that its activities are lawful under the CFAA.
28 HIQ LABS V. LINKEDIN
imprisonment. 18 U.S.C. § 1030(a)(2)(C). 12 The term
“protected computer” refers to any computer “used in or
affecting interstate or foreign commerce or communication,”
18 U.S.C. § 1030(e)(2)(B)—effectively any computer
connected to the Internet, see United States v. Nosal (Nosal
II), 844 F.3d 1024, 1050 (9th Cir. 2016), cert. denied, 138 S.
Ct. 314 (2017)—including servers, computers that manage
network resources and provide data to other computers.
LinkedIn’s computer servers store the data members share
on LinkedIn’s platform and provide that data to users who
request to visit its website. Thus, to scrape LinkedIn data,
hiQ must access LinkedIn servers, which are “protected
computer[s].” See Nosal II, 844 F.3d at 1050.
The pivotal CFAA question here is whether once hiQ
received LinkedIn’s cease-and-desist letter, any further
scraping and use of LinkedIn’s data was “without
authorization” within the meaning of the CFAA and thus a
violation of the statute. 18 U.S.C. § 1030(a)(2). If so,
LinkedIn maintains, hiQ could have no legal right of access
to LinkedIn’s data and so could not succeed on any of its
state law claims, including the tortious interference with
12
Additionally, “[a]ny person who suffers damage or loss by reason
of a violation” of that provision may bring a civil suit “against the
violator to obtain compensatory damages and injunctive relief or other
equitable relief,” subject to certain conditions. 18 U.S.C. § 1030(g). Van
Buren reviewed the statutory definitions of “damage” and “loss” and
concluded that this civil remedies provision requires a showing of
“technological harms—such as the corruption of files—of the type
unauthorized users cause to computer systems and data.” 141 S. Ct.
at 1659–60 (interpreting 18 U.S.C. § 1030(e)(8), (e)(11), (g)). LinkedIn
has not alleged that hiQ’s scraping of public profiles caused any such
technological harms.
HIQ LABS V. LINKEDIN 29
contract claim we have held otherwise sufficient for
preliminary injunction purposes.
We have held in another context that the phrase
“‘without authorization’ is a non-technical term that, given
its plain and ordinary meaning, means accessing a protected
computer without permission.” 13 Nosal II, 844 F.3d at 1028.
Nosal II involved an employee accessing without permission
an employer’s private computer for which access
permissions in the form of user accounts were required. Id.
at 1028–29. Nosal II did not address whether access can be
“without authorization” under the CFAA where, as here,
prior authorization is not generally required, but a particular
person—or bot—is refused access. HiQ’s position is that
Nosal II is consistent with the conclusion that where access
is open to the general public, the CFAA “without
authorization” concept is inapplicable. At the very least, we
conclude, hiQ has raised a serious question as to this issue.
First, the wording of the statute, forbidding “access[] . . .
without authorization,” 18 U.S.C. § 1030(a)(2), suggests a
baseline in which access is not generally available and so
permission is ordinarily required. “Authorization” is an
affirmative notion, indicating that access is restricted to
those specially recognized or admitted. See, e.g., Black’s
Law Dictionary (11th ed. 2019) (defining “authorization” as
13
Van Buren observed that “[w]hen interpreting statutes, courts take
note of terms that carry ‘technical meaning[s],’” 141 S. Ct. at 1657
(quoting A. Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 73 (2012)), and stated that “‘[a]ccess’ is one such term,”
which, in the “computing context, . . . references the act of entering a
computer ‘system itself’ or a particular ‘part of a computer system,’ such
as files, folders, or databases,” id. Although we rely on the plain meaning
of “without authorization,” we apply the specialized meaning of “access”
in interpreting the CFAA.
30 HIQ LABS V. LINKEDIN
“[o]fficial permission to do something; sanction or
warrant”). Where the default is free access without
authorization, in ordinary parlance one would characterize
selective denial of access as a ban, not as a lack of
“authorization.” Cf. Blankenhorn v. City of Orange,
485 F.3d 463, 472 (9th Cir. 2007) (characterizing the
exclusion of the plaintiff in particular from a shopping mall
as “bann[ing]”).
Second, even if this interpretation is debatable, the
legislative history of the statute confirms our understanding.
“If [a] statute’s terms are ambiguous, we may use . . .
legislative history[] and the statute’s overall purpose to
illuminate Congress’s intent.” Jonah R. v. Carmona,
446 F.3d 1000, 1005 (9th Cir. 2006).
The CFAA was enacted to prevent intentional intrusion
onto someone else’s computer—specifically, computer
hacking. See United States v. Nosal (Nosal I), 676 F.3d 854,
858 (9th Cir. 2012) (citing S. Rep. No. 99-432, at 9 (1986)
(Conf. Rep.)).
The 1984 House Report on the CFAA explicitly
analogized the conduct prohibited by section 1030 to forced
entry: “It is noteworthy that section 1030 deals with an
‘unauthorized access’ concept of computer fraud rather than
the mere use of a computer. Thus, the conduct prohibited is
analogous to that of ‘breaking and entering’ . . . .’” H.R.
Rep. No. 98-894, at 20 (1984); see also id. at 10 (describing
the problem of “‘hackers’ who have been able to access
(trespass into) both private and public computer systems”).
Senator Jeremiah Denton similarly characterized the CFAA
as a statute designed to prevent unlawful intrusion into
otherwise inaccessible computers, observing that “[t]he bill
makes it clear that unauthorized access to a Government
computer is a trespass offense, as surely as if the offender
HIQ LABS V. LINKEDIN 31
had entered a restricted Government compound without
proper authorization.” 14 132 Cong. Rec. 27639 (1986)
(emphasis added). And when considering amendments to the
CFAA two years later, the House again linked computer
intrusion to breaking and entering. See H.R. Rep. No. 99-
612, at 5–6 (1986) (describing “the expanding group of
electronic trespassers,” who trespass “just as much as if they
broke a window and crawled into a home while the
occupants were away”).
In recognizing that the CFAA is best understood as an
anti-intrusion statute and not as a “misappropriation statute,”
Nosal I, 676 F.3d at 857–58, we rejected the contract-based
interpretation of the CFAA’s “without authorization”
provision adopted by some of our sister circuits. Compare
Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1067
(9th Cir. 2016), cert. denied, 138 S. Ct. 313 (2017) (“[A]
violation of the terms of use of a website—without more—
cannot establish liability under the CFAA.”); Nosal I,
676 F.3d at 862 (“We remain unpersuaded by the decisions
of our sister circuits that interpret the CFAA broadly to cover
violations of corporate computer use restrictions or
violations of a duty of loyalty.”), with EF Cultural Travel
BV v. Explorica, Inc., 274 F.3d 577, 583–84 (1st Cir. 2001)
(holding that violations of a confidentiality agreement or
other contractual restraints could give rise to a claim for
unauthorized access under the CFAA); United States v.
Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010) (holding
that a defendant “exceeds authorized access” when violating
policies governing authorized use of databases). Van Buren,
interpreting the CFAA’s “exceeds authorized access” clause,
14
The CFAA originally prohibited only unauthorized access to
government computers.
32 HIQ LABS V. LINKEDIN
approved of Nosal I and abrogated EF Cultural Travel and
Rodriguez. 141 S. Ct. at 1653–54 & n.2.
We therefore look to whether the conduct at issue is
analogous to “breaking and entering.” H.R. Rep. No. 98-894,
at 20. Significantly, the version of the CFAA initially
enacted in 1984 was limited to a narrow range of
computers—namely, those containing national security
information or financial data and those operated by or on
behalf of the government. See Counterfeit Access Device
and Computer Fraud and Abuse Act of 1984, Pub. L. No. 98-
473, § 2102, 98 Stat. 2190, 2190–91. None of the computers
to which the CFAA initially applied were accessible to the
general public; affirmative authorization of some kind was
presumptively required.
When section 1030(a)(2)(C) was added in 1996 to extend
the prohibition on unauthorized access to any “protected
computer,” the Senate Judiciary Committee explained that
the amendment was designed “to increase protection for the
privacy and confidentiality of computer information.”
S. Rep. No. 104-357, at 7 (emphasis added). 15 The
15
At the same time, Congress added the word “nonpublic” to section
1030(a)(3), the section prohibiting unauthorized access of “any
nonpublic computer” belonging to the United States government.
LinkedIn maintains that Congress’s decision not to include the word
“nonpublic” in section 1030(a)(2)(C) confirms that that section’s
prohibition on unauthorized access applies to public websites. We
disagree. The Senate Judiciary Committee explained that the
“nonpublic” modifier was meant to increase protection for government
computers by making clear that “a person who is permitted to access
publicly available Government computers, for example, via an agency’s
World Wide Web site, may still be convicted under (a)(3) for accessing
without authority any nonpublic Federal Government computer.” S. Rep.
No. 104-357, at 9. Congress’s concern about protecting government
computers, even though some government computers may be “publicly
HIQ LABS V. LINKEDIN 33
legislative history of section 1030 thus makes clear that the
prohibition on unauthorized access is properly understood to
apply only to private information—information delineated
as private through use of a permission requirement of some
sort. As one prominent commentator has put it, “an
authentication requirement, such as a password gate, is
needed to create the necessary barrier that divides open
spaces from closed spaces on the Web.” Orin S. Kerr, Norms
of Computer Trespass, 116 Colum. L. Rev. 1143, 1161
(2016). Moreover, elsewhere in the statute, password fraud
is cited as a means by which a computer may be accessed
without authorization, see 18 U.S.C. § 1030(a)(6), 16
bolstering the idea that authorization is only required for
password-protected sites or sites that otherwise prevent the
general public from viewing the information.
We therefore conclude that hiQ has raised a serious
question as to whether the reference to access “without
authorization” limits the scope of the statutory coverage to
computers for which authorization or access permission,
such as password authentication, is generally required. Put
differently, the CFAA contemplates the existence of three
kinds of computer systems: (1) computers for which access
is open to the general public and permission is not required,
available,” id., does not imply that Congress also intended the
prohibition of unauthorized access to privately owned protected
computers to extend to the publicly available websites on such
computers.
16
18 U.S.C. § 1030(a)(6) provides: “Whoever . . . knowingly and
with intent to defraud traffics . . . in any password or similar information
through which a computer may be accessed without authorization, if—
(A) such trafficking affects interstate or foreign commerce; or (B) such
computer is used by or for the Government of the United States; . . . shall
be punished as provided in subsection (c) of this section.”
34 HIQ LABS V. LINKEDIN
(2) computers for which authorization is required and has
been given, and (3) computers for which authorization is
required but has not been given (or, in the case of the
prohibition on exceeding authorized access, has not been
given for the part of the system accessed). Public LinkedIn
profiles, available to anyone with an Internet connection, fall
into the first category. With regard to websites made freely
accessible on the Internet, the “breaking and entering”
analogue invoked so frequently during congressional
consideration has no application, and the concept of
“without authorization” is inapt.
The reasoning of Van Buren reinforces our interpretation
of the CFAA, although it did not directly address the
statute’s “without authorization” clause. Van Buren held that
a police sergeant did not violate the CFAA when he “ran a
license-plate search in a law enforcement computer database
in exchange for money.” 141 S. Ct. at 1652. Interpreting the
“exceeds authorized access” clause of section 1030(a)(2),
the Court held that the CFAA “covers those who obtain
information from particular areas in the computer—such as
files, folders, or databases—to which their computer access
does not extend. It does not cover those who, like Van Buren,
have improper motives for obtaining information that is
otherwise available to them.” Id.
Van Buren found the “interplay between the ‘without
authorization’ and ‘exceeds authorized access’ clauses of
subsection (a)(2) . . . particularly probative.” Id. at 1658.
“The ‘without authorization’ clause . . . protects computers
themselves by targeting so-called outside hackers—those
who ‘acces[s] a computer without any permission at all.’” Id.
(quoting LVRC Holdings LLC v. Brekka, 581 F.3d 1127,
1133 (9th Cir. 2009)). The “‘exceeds authorized access’
clause . . . provide[s] complementary protection for certain
HIQ LABS V. LINKEDIN 35
information within computers . . . by targeting so-called
inside hackers—those who access a computer with
permission, but then ‘“exceed” the parameters of authorized
access by entering an area of the computer to which [that]
authorization does not extend.’” Id. (quoting United States
v. Valle, 807 F.3d 508, 524 (2d Cir. 2015)). “[L]iability
under both clauses stems from a gates-up-or-down inquiry—
one either can or cannot access a computer system, and one
either can or cannot access certain areas within the system.”
Id. at 1658–59.
Van Buren’s “gates-up-or-down inquiry” is consistent
with our interpretation of the CFAA as contemplating three
categories of computer systems. See supra p. 33–34.
Discussing the “without authorization” clause, Van Buren
explained that a computer user who has “authorization” is
one who “can . . . access a computer system,” 141 S. Ct. at
1658, where “access” means “the act of entering a computer
‘system itself,’” id. at 1657 (citation omitted). In other
words, a user with “authorization” is not subject to
“limitations on access,” whether those limitations are “code-
based” or “contained in contracts or policies.” Id. at 1659
n.8. Van Buren stated that the CFAA’s password-trafficking
provision, section 1030(a)(6), which also uses the word
“authorization,” “contemplates a ‘specific type of
authorization—that is, authentication,’ which turns on
whether a user’s credentials allow him to proceed past a
computer’s access gate, rather than on other, scope-based
restrictions.” Id. at 1659 n.9 (quoting Patricia L. Bellia, A
Code-Based Approach to Unauthorized Access Under the
Computer Fraud and Abuse Act, 84 Geo. Wash. L. Rev.
1442, 1470 (2016)).
Van Buren’s distinction between computer users who
“can or cannot access a computer system,” id. at 1658,
36 HIQ LABS V. LINKEDIN
suggests a baseline in which there are “limitations on access”
that prevent some users from accessing the system (i.e., a
“gate” exists, and can be either up or down). The Court’s
“gates-up-or-down inquiry” thus applies to the latter two
categories of computers we have identified: if authorization
is required and has been given, the gates are up; if
authorization is required and has not been given, the gates
are down. As we have noted, however, a defining feature of
public websites is that their publicly available sections lack
limitations on access; instead, those sections are open to
anyone with a web browser. In other words, applying the
“gates” analogy to a computer hosting publicly available
webpages, that computer has erected no gates to lift or lower
in the first place. 17 Van Buren therefore reinforces our
conclusion that the concept of “without authorization” does
not apply to public websites.
Additionally, neither of the cases LinkedIn principally
relies upon casts doubt on our interpretation of the statute.
LinkedIn first cites Nosal II, 844 F.3d 1024. As we have
already stated, Nosal II held that a former employee who
used current employees’ login credentials to access company
computers and collect confidential information had acted
“‘without authorization’ in violation of the CFAA.” 844 F.3d
at 1038. The computer information the defendant accessed
in Nosal II was thus plainly one which no one could access
without authorization.
So too with regard to the system at issue in Power
Ventures, 844 F.3d 1058, the other precedent upon which
Of course, even computers and servers hosting public websites
17
may contain areas that require authorization to access. Accessing those
areas “without authorization” would violate the CFAA. 18 U.S.C.
§ 1030(a)(2)(C).
HIQ LABS V. LINKEDIN 37
LinkedIn relies. In that case, Facebook sued Power
Ventures, a social networking website that aggregated social
networking information from multiple platforms, for
accessing Facebook users’ data and using that data to send
mass messages as part of a promotional campaign. Id.at 1062–63. After Facebook sent a cease-and-desist letter,
Power Ventures continued to circumvent IP barriers and gain
access to password-protected Facebook member profiles. Id.
at 1063. We held that after receiving an individualized cease-
and-desist letter, Power Ventures had accessed Facebook
computers “without authorization” and was therefore liable
under the CFAA. Id. at 1067–68. But we specifically
recognized that “Facebook has tried to limit and control
access to its website” as to the purposes for which Power
Ventures sought to use it. Id. at 1063. Indeed, Facebook
requires its users to register with a unique username and
password, and Power Ventures required that Facebook users
provide their Facebook username and password to access
their Facebook data on Power Ventures’ platform.
Facebook, Inc. v. Power Ventures, Inc., 844 F. Supp. 2d
1025, 1028 (N.D. Cal. 2012). While Power Ventures was
gathering user data that was protected by Facebook’s
username and password authentication system, the data hiQ
was scraping was available to anyone with a web browser.
In sum, Nosal II and Power Ventures control situations
in which authorization generally is required and has either
never been given or has been revoked. As Power Ventures
indicated, the two cases do not control the situation present
here, in which information is “presumptively open to all
comers.” Power Ventures, 844 F.3d at 1067 n.2. As to the
computers at issue in those cases, the authorization gate was
“down.”
38 HIQ LABS V. LINKEDIN
Our understanding that the CFAA is premised on a
distinction between information presumptively accessible to
the general public and information for which authorization
is generally required is consistent with our interpretation of
a provision of the Stored Communications Act (“SCA”),
18 U.S.C. § 2701 et seq., 18 nearly identical to the CFAA
provision at issue. Compare 18 U.S.C. § 2701(a)
(“[W]hoever—(1) intentionally accesses without
authorization a facility through which an electronic
communication service is provided; or (2) intentionally
exceeds an authorization to access that facility; and thereby
obtains . . . unauthorized access to a wire or electronic
communication . . . shall be punished . . . .”) with 18 U.S.C.
§ 1030(a)(2)(C) (“Whoever . . . intentionally accesses a
computer without authorization or exceeds authorized
access, and thereby obtains . . . information from any
protected computer . . . shall be punished . . . .”). “The
similarity of language in [the SCA and the CFAA] is a strong
indication that [they] should be interpreted pari passu.”
Northcross v. Bd. of Educ. of Memphis City Schs., 412 U.S.
427, 428 (1973); see also United States v. Sioux, 362 F.3d
1241, 1246 (9th Cir. 2004).
Addressing the “without authorization” provision of the
SCA, we have distinguished between public websites and
non-public or “restricted” websites, such as websites that
“are password-protected . . . or require the user to purchase
access by entering a credit card number.” Konop v.
Hawaiian Airlines, Inc., 302 F.3d 868, 875 (9th Cir. 2002);
18
The Stored Communications Act, enacted as part of the Electronic
Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat.
1848, provides privacy protections for e-mail and other electronic
communications by limiting the ability of the government to compel
disclosure by internet service providers.
HIQ LABS V. LINKEDIN 39
see also id. at 879 n.8. As we explained in Konop, in enacting
the SCA, “Congress wanted to protect electronic
communications that are configured to be private” and are
“‘not intended to be available to the public.’” Id. at 875
(quoting S. Rep. No. 99-541, at 35–36 (1986)). The House
Committee on the Judiciary stated, with respect to the
section of the SCA at issue, section 2701, that “[a] person
may reasonably conclude that a communication is readily
accessible to the general public if the . . . means of access are
widely known, and if a person does not, in the course of
gaining access, encounter any warnings, encryptions,
password requests, or other indicia of intended privacy.”
H.R. Rep. No. 99-647, at 62 (1986). The Committee further
explained that “electronic communications which the
service provider attempts to keep confidential would be
protected, while the statute would impose no liability for
access to features configured to be readily accessible to the
general public.” Id. at 63.
Both the legislative history of section 1030 of the CFAA
and the legislative history of section 2701 of the SCA, with
its similar “without authorization” provision, then, support
the district court’s distinction between “private” computer
networks and websites, protected by a password
authentication system and “not visible to the public,” and
websites that are accessible to the general public.
Finally, the rule of lenity favors our narrow
interpretation of the “without authorization” provision in the
CFAA. The statutory prohibition on unauthorized access
applies both to civil actions and to criminal prosecutions—
indeed, “§ 1030 is primarily a criminal statute.” LVRC
Holdings, 581 F.3d at 1134. “Because we must interpret the
statute consistently, whether we encounter its application in
a criminal or noncriminal context, the rule of lenity applies.”
40 HIQ LABS V. LINKEDIN
Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004). As we
explained in Nosal I, we therefore favor a narrow
interpretation of the CFAA’s “without authorization”
provision so as not to turn a criminal hacking statute into a
“sweeping Internet-policing mandate.” 676 F.3d at 858; see
also id. at 863. 19
For all these reasons, it appears that the CFAA’s
prohibition on accessing a computer “without authorization”
is violated when a person circumvents a computer’s
generally applicable rules regarding access permissions,
such as username and password requirements, to gain access
to a computer. It is likely that when a computer network
generally permits public access to its data, a user’s accessing
that publicly available data will not constitute access without
authorization under the CFAA. The data hiQ seeks to access
is not owned by LinkedIn and has not been demarcated by
LinkedIn as private using such an authorization system. HiQ
has therefore raised serious questions about whether
LinkedIn may invoke the CFAA to preempt hiQ’s possibly
meritorious tortious interference claim. 20
19
Van Buren identified similar concerns, stating that “[i]f the
‘exceeds authorized access’ clause criminalizes every violation of a
computer-use policy, then millions of otherwise law-abiding citizens are
criminals.” 141 S. Ct. at 1661.
20
LinkedIn asserts that the illegality of hiQ’s actions under the
CFAA is also grounds for holding (1) that hiQ’s injuries are not
cognizable as irreparable harm, (2) that hiQ’s contracts are illegal and so
their breach cannot give rise to a cognizable tortious interference with
contract claim, and (3) that LinkedIn has a legitimate business interest in
asserting its rights under federal law that justifies its interference with
hiQ’s contracts. See supra n.11. These contentions are insufficient at this
stage for the same reasons LinkedIn’s CFAA preemption position does
not preclude preliminary injunctive relief.
HIQ LABS V. LINKEDIN 41
Entities that view themselves as victims of data scraping
are not without resort, even if the CFAA does not apply: state
law trespass to chattels claims may still be available. 21 And
other causes of action, such as copyright infringement,
misappropriation, unjust enrichment, conversion, breach of
contract, or breach of privacy, may also lie. See, e.g.,
Associated Press v. Meltwater U.S. Holdings, Inc., 931 F.
Supp. 2d 537, 561 (S.D.N.Y. 2013) (holding that a software
21
LinkedIn’s cease-and-desist letter also asserted a state common
law claim of trespass to chattels. Although we do not decide the question,
see supra p. 20, it may be that web scraping exceeding the scope of the
website owner’s consent gives rise to a common law tort claim for
trespass to chattels, at least when it causes demonstrable harm. Compare
eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1070 (N.D. Cal.
2000) (finding that eBay had established a likelihood of success on its
trespass claim against the auction-aggregating site Bidder’s Edge
because, although eBay’s “site is publicly accessible,” “eBay’s servers
are private property, conditional access to which eBay grants the public,”
and Bidder’s Edge had exceeded the scope of any consent, even if it did
not cause physical harm); Register.com, Inc. v. Verio, Inc., 356 F.3d 393,
437–38 (2d Cir. 2004) (holding that a company that scraped a
competitor’s website to obtain data for marketing purposes likely
committed trespass to chattels, because scraping could—although it did
not yet—cause physical harm to the plaintiff’s computer servers); Sw.
Airlines Co. v. FareChase, Inc., 318 F. Supp. 2d 435, 442 (N.D. Tex.
2004) (holding that the use of a scraper to glean flight information was
unauthorized as it interfered with Southwest’s use and possession of its
site, even if the scraping did not cause physical harm or deprivation),
with Ticketmaster Corp. v. Tickets.Com, Inc., No. 2:99-cv-07654-HLH-
VBK, 2003 WL 21406289, at *3 (C.D. Cal. Mar. 7, 2003) (holding that
the use of a web crawler to gather information from a public website,
without more, is insufficient to fulfill the harm requirement of a trespass
action); Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1364 (2003) (holding
that “trespass to chattels is not actionable if it does not involve actual or
threatened injury” to property and the defendant’s actions did not
damage or interfere with the operation of the computer systems at issue).
42 HIQ LABS V. LINKEDIN
company’s conduct in scraping and aggregating copyrighted
news articles was not protected by fair use).
D. Public Interest
Finally, we must consider the public interest in granting
or denying the preliminary injunction. Whereas the balance
of equities focuses on the parties, “[t]he public interest
inquiry primarily addresses impact on non-parties rather
than parties,” and takes into consideration “the public
consequences in employing the extraordinary remedy of
injunction.” Bernhardt v. Los Angeles Cnty., 339 F.3d 920,
931–32 (9th Cir. 2003) (citations omitted).
As the district court observed, each side asserts that its
own position would benefit the public interest by
maximizing the free flow of information on the Internet. HiQ
points out that data scraping is a common method of
gathering information, used by search engines, academic
researchers, and many others. According to hiQ, letting
established entities that already have accumulated large user
data sets decide who can scrape that data from otherwise
public websites gives those entities outsized control over
how such data may be put to use.
For its part, LinkedIn argues that the preliminary
injunction is against the public interest because it will invite
malicious actors to access LinkedIn’s computers and attack
its servers. As a result, the argument goes, LinkedIn and
other companies with public websites will be forced to
choose between leaving their servers open to such attacks or
protecting their websites with passwords, thereby cutting
them off from public view.
Although there are significant public interests on both
sides, the district court properly determined that, on balance,
HIQ LABS V. LINKEDIN 43
the public interest favors hiQ’s position. We agree with the
district court that giving companies like LinkedIn free rein
to decide, on any basis, who can collect and use data—data
that the companies do not own, that they otherwise make
publicly available to viewers, and that the companies
themselves collect and use—risks the possible creation of
information monopolies that would disserve the public
interest.
Internet companies and the public do have a substantial
interest in thwarting denial-of-service attacks 22 and blocking
abusive users, identity thieves, and other ill-intentioned
actors. But we do not view the district court’s injunction as
opening the door to such malicious activity. The district
court made clear that the injunction does not preclude
LinkedIn from continuing to engage in “technological self-
help” against bad actors—for example, by employing “anti-
bot measures to prevent, e.g., harmful intrusions or attacks
on its server.” Although an injunction preventing a company
from securing even the public parts of its website from
malicious actors would raise serious concerns, such concerns
are not present here. 23
The district court’s conclusion that the public interest
favors granting the preliminary injunction was appropriate.
22
In a denial-of-service (DoS) attack, an attacker seeks to prevent
legitimate users from accessing a targeted computer or network,
typically by flooding the target with requests and thereby overloading
the server.
23
We note that LinkedIn has not specifically challenged the scope
of the injunction.
44 HIQ LABS V. LINKEDIN
CONCLUSION
We AFFIRM the district court’s determination that hiQ
has established the elements required for a preliminary
injunction and remand for further proceedings.