• by Wendy Davis  @wendyndavis, July 12, 2021

Federal judges gave short shrift to privacy considerations in 2019, when they upheld an order requiring LinkedIn to allow analytics company hiQ to scrape users' data, the social networking company argues in new court papers.

LinkedIn says that in the last two years, the “grave threat to privacy ... from massive unauthorized data harvesting of the kind practiced by hiQ has become undeniable.”

The company makes the argument as part of a new attempt to convince the 9th Circuit Court of Appeals to lift an injunction requiring LinkedIn to allow hiQ to scrape publicly available pages.

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

The analytics company counters in papers filed Friday that the prior ruling was correct, given that the data it accessed was publicly available.

The battle between the companies dates to 2017, when LinkedIn accused hiQ of violating the Computer Fraud and Abuse Act -- a 1986 anti-hacking law -- and demanded that hiQ stop using automated tools to gather data about users.

LinkedIn argued both that it has the right to control its servers, and that HiQ was disregarding the privacy of LinkedIn users -- particularly the more than 50 million who used its "do not broadcast" tool, which allows people to change their profiles without having other users notified about the revision.

After LinkedIn sent a cease-and-desist letter to hiQ, the analytics company sued LinkedIn for allegedly acting anti-competitively. hiQ sought a declaratory judgment that it wasn't violating the Computer Fraud and Abuse Act, and asked for an injunction against blocking by LinkedIn.

U.S. District Court Judge Edward Chen in the Northern District of California said in his pro-hiQ ruling that the company faced the prospect of irreparable harm if it couldn't access publicly available data.

A three-judge panel of the 9th Circuit Court of Appeals upheld that injunction in 2019, ruling that hiQ's scraping probably didn't violate the federal anti-hacking law.

Last month, the U.S. Supreme Court ordered the 9th Circuit to take a new look at the case, in light of a separate ruling about the Computer Fraud and Abuse Act. That law prohibits anyone from accessing computer servers without authorization, as well as from exceeding their authorized access to servers.

hiQ says in its new papers that the data it gathered was publicly available online.

“Cease-and-desist letters do nothing to change that fact ... and do not convert such public information to non-public information,” hiQ writes.

The 9th Circuit hasn't yet said whether it will hold a new hearing, or decide the matter based solely on the papers filed Friday.