• by Wendy Davis  @wendyndavis, July 19, 2021

The Reporters Committee for Freedom of the Press and dozens of news organizations are urging a federal court to rule that scraping data from publicly available websites does not violate the federal anti-hacking law.

In papers filed Friday with the 9th Circuit Court of Appeals, the Reporters Committee, New York Times Company, Dow Jones, Gannett and others argue that interpreting the Computer Fraud and Abuse Act to prohibit scraping could “outlaw a significant amount of journalism in the public interest.”

The groups are weighing in on the long-running battle between social networking service LinkedIn and the analytics company hiQ, which 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.

In 2017, LinkedIn accused hiQ of violating the Computer Fraud and Abuse Act -- which prohibits anyone from accessing computer servers without authorization -- 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 -- especially the 50 million people who used its "do not broadcast" tool, which allows users to change their profiles without having others notified about the revision.

After LinkedIn sent a cease-and-desist letter to hiQ, the analytics company sued LinkedIn for allegedly acting anticompetitively. 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 granted hiQ the injunction, and a panel of the 9th Circuit upheld that decision in 2019.

Earlier this year, 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.

LinkedIn recently urged the 9th Circuit to lift the injunction, arguing that a ban on scraping protects users' privacy.

The Reporters Committee and news publishers say they aren't taking a position on the outcome of the dispute between LinkedIn and hiQ, noting the case could turn on a variety of factors. But the groups are urging the 9th Circuit to reject LinkedIn's contention that the Computer Fraud and Abuse Act enables companies to prohibit their publicly available pages from being scraped.

“Many websites now routinely purport to forbid scraping -- or otherwise using the information they host for journalistic or research purposes -- in their terms of service, even as the information remains on public display,” the Reporters Committee argues. “If violating those private preferences were the measure of ... liability, it would be up to the subject of an exposé to decide whether to criminalize routine investigative reporting techniques in any particular case.”