• by Wendy Davis  @wendyndavis, December 12, 2017

Pushing back against arguments that its website is public, LinkedIn says it's entitled to prevent outside companies that violate its policies from visiting its server and gathering data.

"LinkedIn is a private company that has every right to revoke access to its property when another company violates its policies and seeks to free-ride on its investment and damage its business," LinkedIn argues in new court papers filed Monday with the 9th Circuit Court of Appeals.

The Microsoft-owned social networking company makes the argument as part of its effort to convince the 9th Circuit to lift an injunction that requires LinkedIn to allow publicly available data about its users to be scraped by analytics company HiQ Labs.

The 5-year-old HiQ scrapes data from 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.

Earlier this year, LinkedIn wrote to HiQ and demanded the comapny stop scraping data. LinkedIn also put up technical barriers aimed at preventing HIQ's scraping.

HiQ then successfully sought a court order requiring LinkedIn to withdraw its cease-and-desist letter, and to remove any technical blocks preventing HiQ from accessing the site.

LinkedIn now argues that the injunction was improper. The company contends 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 argues that HiQ disregarded LinkedIn users' privacy and that HiQ's products could harm LinkedIn users.

HiQ, backed by digital rights groups, argues that the Criminal Fraud and Abuse Act 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 wrote in papers filed late last month.

HiQ adds that the anti-hacking law would be unconstitutional if it could be used to stop others from viewing information that is publicly available online. The company argued that LinkedIn's attempt to prevent the scraping of its data was comparable to a billboard owner deciding who could read the message, or a store owner preventing people from seeing signs in windows.

But LinkedIn counters that HiQ's data-scraping goes beyond passively viewing a website. "To obtain the massive amount of data HiQ seeks, it must dispatch thousands of bots to access those servers, and copy the data housed there," LinkedIn argues.

The company adds that businesses can leave their property "generally open to the public," but still ban visitors who violate the company's rules.

"For example, a bookstore may bar visitors who copy books or act rowdily," LinkedIn argues. "Further access by these rule-breakers would be trespass."

The 9th Circuit is expected to hold a hearing on the matter next year.