Case: 17-16783, 09/09/2019, ID: 11424311, DktEntry: 73-1, Page 1 of 38
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`HIQ LABS, INC.,
`Plaintiff-Appellee,
`
`
`
`
`
`v.
`
`No. 17-16783
`
`D.C. No.
`3:17-cv-03301-EMC
`
`
`OPINION
`
`
`LINKEDIN CORPORATION,
`Defendant-Appellant.
`
`Appeal from the United States District Court
`for the Northern District of California
`Edward M. Chen, District Judge, Presiding
`
`Argued and Submitted March 15, 2018
`San Francisco, California
`
`Filed September 9, 2019
`
`Before: J. Clifford Wallace and Marsha S. Berzon, Circuit
`Judges, and Terrence Berg,* District Judge.
`
`Opinion by Judge Berzon;
`Concurrence by Judge Wallace
`
`
`
`
`
`* The Honorable Terrence Berg, United States District Judge for the
`Eastern District of Michigan, sitting by designation.
`
`

`

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`HIQ LABS V. LINKEDIN
`
`SUMMARY**
`
`2
`
`
`
`
`
`Preliminary Injunction / Computer Fraud and
`Abuse Act
`
`
`The panel affirmed the district court’s preliminary
`
`injunction forbidding the professional networking website
`LinkedIn Corp. from denying plaintiff hiQ, a data analytics
`company, access to publicly available LinkedIn member
`profiles.
`
` Using automated bots, hiQ scrapes information that
`LinkedIn users have included on public LinkedIn profiles.
`LinkedIn sent hiQ a cause-and-desist letter, demanding that
`hiQ stop accessing and copying data from LinkedIn’s server.
`HiQ filed suit, seeking injunctive relief based on California
`law and a declaratory judgment that LinkedIn could not
`lawfully invoke the Computer Fraud and Abuse Act
`(“CFAA”),
`the Digital Millennium Copyright Act,
`California Penal Code § 502(c), or the common law of
`trespass against it.
`
` Affirming the district court’s grant of the preliminary
`injunction in favor of hiQ, the panel concluded that hiQ
`established a likelihood of irreparable harm because the
`survival of its business was threatened. The panel held that
`the district court did not abuse its discretion in balancing the
`equities and concluding that, even if some LinkedIn users
`retain some privacy
`interests
`in
`their
`information
`notwithstanding their decision to make their profiles public,
`
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

`

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`3
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`HIQ LABS V. LINKEDIN
`
`
`
`those interests did not outweigh hiQ’s interest in continuing
`its business. Thus, the balance of hardships tipped decidedly
`in favor of hiQ.
`
`The panel further held that hiQ raised serious questions
`
`going to (1) the merits of its claim for tortious interference
`with contract, alleging that LinkedIn intentionally interfered
`with its contracts with third parties, and (2) the merits of
`LinkedIn’s legitimate business purpose defense. HiQ also
`raised a serious question as to whether its state law causes of
`action were preempted by the CFAA, which prohibits
`intentionally accessing a computer without authorization, or
`exceeding authorized access, and
`thereby obtaining
`information from any protected computer. LinkedIn argued
`that, once hiQ received its cause-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 had raised a serious question as to
`whether
`the CFAA’s
`reference
`to access “without
`authorization” limits the scope of statutory coverage to
`computer information for which authorization or access
`permission, such as password authentication, is generally
`required.
`
`Finally, the panel held that the district court’s conclusion
`
`that the public interest favored granting the preliminary
`injunction was appropriate.
`
`Specially concurring, Judge Wallace wrote that he
`
`concurred in the majority opinion. He wrote separately to
`express his concern about appealing from a preliminary
`injunction to obtain an appellate court’s view of the merits.
`
`
`
`

`

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`HIQ LABS V. LINKEDIN
`
`COUNSEL
`
`4
`
`
`
`Donald B. Verrilli Jr. (argued) and Chad I. Golder, Munger
`Tolles & Olson LLP, Washington, D.C.; Jonathan H. Blavin,
`Rosemarie T. Ring, Nicholas D. 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.; Brian P. Goldman,
`Orrick Herrington & Sutcliffe LLP, San Francisco,
`California; for Defendant-Appellant.
`
`C. Brandon Wisoff (argued), Deepak Gupta, Jeffrey G. Lau,
`and Rebecca H. Stephens, Farella Braun & Martel LLP, San
`Francisco, California; Aaron M. Panner, Gregory G.
`Rapawy, and T. Dietrich Hill, Kellogg Hansen Todd Figel &
`Frederick PLLC, Washington, D.C.; 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.
`
`Marc Rotenberg and Alan Butler, Electronic Privacy
`Information Center, Washington, D.C., for Amicus Curiae
`Electronic Privacy Information Center.
`
`Thomas V. Christopher, Law Offices of Thomas V.
`Christopher, San Francisco, California, for Amicus Curiae
`3taps Inc.
`
`
`

`

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`HIQ LABS V. LINKEDIN
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`5
`
`
`
`Jamie Williams, Corynne McSherry, Cindy Cohn, and
`Nathan Cardozo, Electronic Frontier Foundation, San
`Francisco, California, for Amici Curiae Electronic Frontier
`Foundation, DuckDuckGo, and Internet Archive.
`
`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.
`
`
`
`OPINION
`
`BERZON, Circuit Judge:
`
`May LinkedIn, the professional networking website,
`prevent a competitor, hiQ, from collecting and using
`information that LinkedIn users have shared on their public
`profiles, available for viewing by anyone with a web
`browser? HiQ, a data analytics company, obtained a
`preliminary injunction forbidding LinkedIn from denying
`hiQ access to publicly available LinkedIn member profiles.
`At this preliminary injunction stage, we do not resolve the
`companies’ legal dispute definitively, nor do we address all
`the claims and defenses they have pleaded in the district
`court. Instead, we focus on whether hiQ has 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.
`
`I.
`
`Founded in 2002, LinkedIn is a professional networking
`website with over 500 million members. Members post
`resumes and
`job
`listings and build professional
`“connections” with other members. LinkedIn specifically
`
`

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`HIQ LABS V. LINKEDIN
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`6
`
`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.1 This
`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
`
`
`1 Direct connections (or first-degree connections) are people to
`whom a LinkedIn member is connected by virtue of having invited them
`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).
`
`

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`HIQ LABS V. LINKEDIN
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`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.
`
`7
`
`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
`LinkedIn for bot access.2 LinkedIn also employs several
`technological systems to detect suspicious activity and
`
`2 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 July 12, 2019). 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 July 12, 2019). 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 July 12, 2019). 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 July 12,
`2019); cf. Assoc. Press, 931 F. Supp. 2d at 563 (S.D.N.Y. 2013).
`
`
`
`

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`HIQ LABS V. LINKEDIN
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`8
`
`restrict automated scraping.3 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;4 and its
`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,5
`including through scraping.
`
`HiQ is a data analytics company founded in 2012. Using
`automated bots, it scrapes information that LinkedIn users
`
`
`3 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 July 12, 2019). Scraping
`can be done manually, but as in this case, it is typically done by a web
`robot or “bot.” See supra note 2.
`
`4 “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 Dictionary,
`https://www.merriam-webster.com/dictionary/IP%20address
`(last
`visited July 12, 2019).
`
`5 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.
`
`

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`HIQ LABS V. LINKEDIN
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`
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`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.
`
`9
`
`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
`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
`
`

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`HIQ LABS V. LINKEDIN
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`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,
`which analyzes LinkedIn data to provide companies with
`such data-driven information.6
`
`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 Computer
`Fraud and Abuse Act (“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.”
`
`
`6 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/201
`8/linkedin-talent-insights-now-available (last visited July 12, 2019).
`
`

`

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`HIQ LABS V. LINKEDIN
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`
`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 suit, 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 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.
`
`

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`HIQ LABS V. LINKEDIN
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`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
`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.
`
`is not normally considered
`injury
`“[M]onetary
`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
`
`

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`injunction. The record provides ample support for that
`finding.
`
`13
`
`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
`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 p. 31, 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
`
`

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`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
`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
`
`

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`15
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`HIQ LABS V. LINKEDIN
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`
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`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
`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 noted, 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
`
`

`

`Case: 17-16783, 09/09/2019, ID: 11424311, DktEntry: 73-1, Page 16 of 38
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`HIQ LABS V. LINKEDIN
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`16
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`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.
`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
`to LinkedIn’s “talent
`knowledge.7 And subscribers
`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
`
`7 Recruiter does not provide alerts about profile changes made by
`LinkedIn members who select the “Do Not Broadcast” setting.
`
`

`

`Case: 17-16783, 09/09/2019, ID: 11424311, DktEntry: 73-1, Page 17 of 38
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`17
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`HIQ LABS V. LINKEDIN
`
`
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`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
`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
`
`

`

`Case: 17-16783, 09/09/2019, ID: 11424311, DktEntry: 73-1, Page 18 of 38
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`HIQ LABS V. LINKEDIN
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`18
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`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.
`
`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).8
`
`HiQ has shown a sufficient likelihood of establishing
`each of these elements. First, LinkedIn does not contest
`
`
`8 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