• by Wendy Davis  @wendyndavis, December 1, 2017

The analytics company HiQ should be free to scrape publicly available data about LinkedIn's users, the digital rights group Electronic Frontier Foundation and others argue in new court papers.

"Open access is a hallmark of today’s Internet, and one of the main reasons the Internet has become our 'modern public square,'" the EFF, search engine Duck Duck Go and the nonprofit Internet Archive say in papers submitted this week to the 9th Circuit Court of Appeals. The EFF and others add that LinkedIn shouldn't be allowed to use a criminal anti-hacking law to restrict the use of publicly available information online.

The EFF and others are urging the 9th Circuit to uphold injunction requiring LinkedIn to allow publicly available data about its users to be scraped by HiQ.

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.

U.S. District Court Judge Edward Chen in the Northern District of California sided with HiQ earlier this year, ruling that an injunction was necessary in order to protect the company from irreparable harm while its dispute with LinkedIn is in court. Chen 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."

The EFF, Internet Archive and Duck Duck Go counter in a friend-of-the-court brief that many the criminal anti-hacking law wasn't meant to cover scraping data from public sites.

"The public LinkedIn data hiQ accessed was not protected by any code-based access limitation," the groups argue. "And without such barrier to entry, everyone on the Internet was and is 'authorized' to access the data."

They also say that a victory for LinkedIn could chill journalists and other researchers from using automated tools online. "If LinkedIn’s position prevails, a website that disagrees with a researcher’s purpose or manner of access could render that research criminal by merely updating in terms of use and sending a cease and desist letter," the EFF and others write.

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.

LinkedIn has until December 11 to reply to the latest round of arguments.