hiQ asked the court for a preliminary injunction to stop Linkedin from denying them access, won it, and this is the result of Linkedin's appeal of that injunction. This is not the end of the case.
The title is wrong. The 9th Circuit just ruled that hiQ has a decent enough argument to move forward. The question of whether them scraping a public site can violate the CFAA is not settled.
> 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
computer information for which authorization or access
permission, such as password authentication, is generally
required
> 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.
Note the tone of the language used in the ruling. The judge makes it pretty clear that nothing is final here.
I think you've mischaracterized the state of things. In the underlying case, LinkedIn asserted that HiQ violated the CFAA and HiQ said LinkedIn tortiously interfered with its business. The trial court said LinkedIn couldn't assert the CFAA. LinkedIn appealed, asking the appellate court to overturn the trial court and also to hold that the tortious interference claim is preempted by the CFAA. The appellate court said no, we agree with the trial court and there's no preemption, so now HiQ can go back to the trial court and proceed to trial with its tortious interference claim.
LinkedIn tried to use the CFAA as an argument against the preliminary injunction HiQ was seeking at the start of the trial (which would force LinkedIn to continue to provide access to the profiles). They claimed that HiQ was likely to fail under the CFAA and so do not deserve the injunction to be granted. When the preliminary injunction was granted, LinkedIn appealed. This is the ruling on that appeal:
> 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.
So yes, HiQ and LinkedIn need to go back and finish the trial, but the language used is in no way ruling on whether or not the CFAA preempts state law, just that even if there is pre-emption that hiQ still has a decent argument.
The court rules that hiQ has a good enough argument against the preemption claim that the preemption claim cannot be used to block the injuction:
>> 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 computer information for which authorization or access permission, such as password authentication, is generally required
I agree, but there's a difference between "hiQ has a strong case" and "Here is the final ruling on the hiQ case". I was trying to point out that the case is not over or ruled on at all. Just the preliminary injunction.
This ruling isn't on the actual case. The ruling is about the injunction being upheld while the case is tried.
Funnily enough the judge has a similar concern:
>> I write separately to express my concern that “in some cases, parties appeal orders granting or denying motions for preliminary injunctions in order to ascertain the views of the appellate court on the merits of the litigation.”
A preliminary injunction is considered very strong. So it's not that "nothing is final here", it's actually almost pretty much final unless something comes out of left field.
The injunction was to stop LinkedIn from blocking access while the case is ongoing, not to stop them from arguing that hiQ violated the CFAA. The trial court could hear the arguments and say "hiQ is wrong, they did violate the CFAA". Maybe that's not likely, but it also is not yet decided.
So what exactly did I misunderstand and why do you think this is final?
The 9th circuit uses a sliding-scale version of the preliminary injunction test. Because hiQ has more at stake, all hiQ needs is a serious question in this case, not a likelyhood of success on the merits.
It still might be case that hiQ has less than a 50% chance of winning in the eyes of the appeals court.
The title is wrong. The 9th Circuit just ruled that hiQ has a decent enough argument to move forward. The question of whether them scraping a public site can violate the CFAA is not settled.
> 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 computer information for which authorization or access permission, such as password authentication, is generally required
> 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.
Note the tone of the language used in the ruling. The judge makes it pretty clear that nothing is final here.