• by Wendy Davis  @wendyndavis, November 22, 2017

Analytics company HiQ Labs is asking the 9th Circuit Court of Appeals to uphold an injunction requiring LinkedIn to allow publicly available data about its users to be scraped.

HiQ argues that the order, issued earlier this year by U.S. District Court Judge Edward Chen in the Northern District of California, is necessary to protect the company from "irreparable harm" while its dispute with LinkedIn plays out in court.

The 5-year-old HiQ scrapes LinkedIn's publicly available pages, analyzes the information to determine which employees are at risk of being poached, and then sells its findings to employers.

HiQ sought an injunction against LinkedIn this summer, shortly after receiving demands to stop scraping data about its users. HiQ alleged that LinkedIn was planning to roll out a commercial service that would compete with HiQ's, and that LinkedIn's demands to stop collecting data were anti-competitive.

LinkedIn contended that HiQ's scraping violated the Computer Fraud and Abuse Act -- a criminal law that prohibits companies from accessing computer servers without authorization. LinkedIn also argued that HiQ disregarded LinkedIn users' privacy and that HiQ's products could harm LinkedIn users.

Chen sided with HiQ and ordered LinkedIn to withdraw its cease-and-desist letter, and to remove any technical blocks preventing HiQ from accessing the site.

LinkedIn recently asked appellate judges to lift that injunction, arguing that it has the right to protect the data on its servers from outside parties, and that HiQ lacks a valid antitrust claim. The advocacy group Electronic Privacy Information Center sided with LinkedIn, arguing that users didn't necessarily know that their data "would be acquired by others to build profiles that would be sold back to their employers."

HiQ this week asked the court to preserve the injunction. Among other arguments, HiQ says that the Criminal Fraud and Abuse Act -- an anti-hacking statute that prohibits anyone from accessing computer servers without authorization -- shouldn't be interpreted to allow website operators to stop users from accessing public content.

"Public webpages are, by definition, available worldwide and without restriction," HiQ writes. "No one needs 'authorization' to access them. A website owner cannot revoke a user’s authorization to view public pages because there is no authorization to revoke."

HiQ adds that the anti-hacking law would be unconstitutional if it could be used to stop companies from viewing publicly available information.

"The government could no more enact such a statute than it could authorize someone delivering a speech on the sidewalk to select which passersby could pause to listen, or give a billboard owner to the power to decide who could read a message posted in plain view," HiQ argues.

Four years ago, a different federal district court judge rejected arguments similar to HiQ's in a lawsuit brought by Craigslist against the data scraper 3Taps. In that case, the judge allowed Craigslist to proceed with claims that 3Taps violated the Computer Fraud and Abuse Act by scraping publicly available listings.

HiQ is asking the 9th Circuit to rule that the decision in the Craigslist matter was wrong. HiQ argues that the earlier ruling "rested on the faulty premise that users are inherently 'authorized' to view public content, and that owners of that content can revoke this general permission as to specific users."

LinkedIn has until December 11 to reply to HiQ's latest arguments.