Data-Scraping: Is it Legal?

LinkedIn is asking the US Supreme Court to ban firms from harvesting data publicly available on its massive professional social media website. (licensed iStock photo)

Social media giant LinkedIn is asking the US Supreme Court to prohibit third parties from harvesting and then re-selling data publicly available on its massive website. See court application here. Otherwise, third party resellers may break the proverbial data bank of large data websites.

If the Supreme Court accepts this review, it must resolve the conflict between the Ninth and First Circuits which differ on how to apply the federal Computer Fraud and Abuse Act which frankly may not have been intended to apply to this novel situation.

Billions of dollars and entire business models of tech companies depend on the resolution of this dispute. Yet to resolve this issue of great importance in favor of LinkedIn depends on a strained interpretation of the law which merely makes it illegal to "intentionally access a computer without authorization”. Interpreting this law on its face, the Ninth Circuit previously held 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.”

A better approach should be the passage of new state or federal legislation that focuses laser-like on the new issues caused by supervening technologies. This may be slow and businesses may not want to wait. The alternative is for the Supreme Court to step in and conduct a reinterpretation of case law in favor on banning the practice of data-scraping. The downside of this is that 9 judges may also get it wrong. But the worst is relying on a law that may not address this issue on its face will only undercut the formulation of clear legal & regulatory standards.