• by Wendy Davis  @wendyndavis, July 17, 2020

A recent court ruling that requires LinkedIn to allow its site to be scraped by a potential competitor will prevent web companies from protecting their users' privacy, LinkedIn argues in new Supreme Court papers.

“Because of the decision below, anyone can now deploy automated 'bots' to scrape and exploit massive quantities of personal information from public-facing websites -- even over the objection of website operators and in disregard of the limitations that internet users have placed upon the dissemination and use of their data,” LinkedIn writes in its latest attempt to convince the Supreme Court to intervene in a dispute with analytics company hiQ.

The battle between the two companies dates to 2017, when LinkedIn demanded that hiQ stop scraping data.

hiQ gathers data about users from LinkedIn's publicly available pages, analyzes the information to determine which employees are at risk of being poached, and sells the findings to employers.

LinkedIn contended that the scraping violates the Computer Fraud and Abuse Act -- a 1986 law that makes it illegal to access computer services without authorization.

After LinkedIn sent a cease-and-desist letter to hiQ, the analytics company sued LinkedIn for allegedly acting anti-competitively. hiQ also sought a declaratory judgment that it wasn't violating the anti-hacking law, and asked for an injunction requiring LinkedIn to allow access to its site.

LinkedIn argued both that it has the right to control its servers, and that hiQ was disregarding LinkedIn users' privacy. The Microsoft-owned social networking service added that more than 50 million people have used a "do not broadcast" tool, which lets users change their profiles without notifying other people in their networks.

U.S. District Court Judge Edward Chen in the Northern District of California sided with hiQ and granted the company a preliminary injunction, ruling that its business could suffer irreparable harm if it couldn't access publicly available data.

LinkedIn appealed to the 9th Circuit, where the company argued it's entitled to protect the data on its servers, and that hiQ has no valid antitrust claim.

Last year, a three-judge panel of the 9th Circuit upheld the injunction, ruling that hiQ's scraping probably didn't violate the Computer Fraud and Abuse Act because LinkedIn profiles are not password-protected.

Earlier this year, LinkedIn asked the Supreme Court to review that ruling.

hiQ opposed the request, arguing that the data it collects is already public.

LinkedIn counters in its newest papers that hiQ's scraping deprives LinkedIn users of their ability to control how their data is shared, or to remove their data altogether.

“LinkedIn’s members have chosen to make their information available for viewing on LinkedIn’s website,” the company argues. “They have done so in part because of the agreement they enter with LinkedIn, which places limitations on the use of that information, including the rights that LinkedIn grants them to restrict access to or remove their information. When hiQ scrapes that data on massive scale and makes it available elsewhere, however, LinkedIn’s members lose their ability to control where and with whom their personal information is shared, and to remove it from the Internet.”

LinkedIn also calls the judges' attention to Clearview, a controversial facial recognition company that reportedly built its database by scraping photos from social media services.

“To appreciate the implications of the Ninth Circuit’s decision beyond LinkedIn, one need look only at Clearview,” LinkedIn writes. “Clearview deploys bots to engage in systemic scraping of social media and other websites, without consent of the operators or their users, to amass a massive facial-recognition database.”

The Supreme Court is expected to decide later this year whether to take up the case.