Ninth Circuit Limits CFAA to Digital “Breaking and Entering,” Finds LinkedIn Likely Has No …

On remand from the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit reaffirmed a California district court’s order preliminarily enjoining LinkedIn from denying hiQ Labs, a data analytics company, access to LinkedIn’s publicly available member profiles. The Ninth Circuit’s decision reaffirms its previous decision, after the Supreme Court remanded the case for further consideration in light of Van Buren v. United States, 141 S. Ct. 1648 (2021).  Likelihood of Success on CFAA Claim. The “pivotal” question for the Ninth Circuit was whether hiQ’s continued scraping and use of LinkedIn’s data, after a cease-and-desist letter, was “without authorization” within the meaning of the Computer Fraud and Abuse Act (“CFAA”). The Ninth Circuit found that a plain reading of the CFAA language forbidding “access without authorization” implies a baseline in which permission to access is ordinarily required and distinguished this from the LinkedIn scenario, in which the default is free access without authorization “to anyone with a web browser.”  The Ninth Circuit relied on the legislative history of the CFAA to confirm its plain reading of the statute. Specifically, the court cited the 1984 House Report’s comparison of section 1030 of the CFAA to criminal “breaking and entering,”…
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