• by Wendy Davis  @wendyndavis, September 6, 2017

LinkedIn is appealing a court order that requires the company to allow the startup HiQ Labs to access publicly available data about users.

The Microsoft-owned social networking site, which Tuesday filed paperwork to appeal, hasn't yet made substantive arguments to the 9th Circuit Court of Appeals.

The order was issued last month by U.S. District Court Judge Edward Chen in the Northern District of California. He ruled that HiQ's business could suffer "irreparable harm" if prevented from accessing information about LinkedIn's members.

"In the absence of an injunction ... it will likely be driven out of business," Chen wrote when he issued the order.

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 in its complaint that LinkedIn was acting anti-competitively.

LinkedIn contended that HiQ's scraping violated the Computer Fraud and Abuse Act, which 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.

The social networking service elaborated that even users who make their profiles public have a privacy interest in preventing third parties from analyzing the information. The company said that more than 50 million people have used its "do not broadcast" tool, which enables users to change their profiles without having other users notified of the revision.

Chen discounted LinkedIn's objections when issuing the injunction. "The asserted harm LinkedIn faces ... is tied to its users' expectations of privacy and any impact on user trust in LinkedIn," he wrote. "However, those expectations are uncertain at best, and in any case, LinkedIn's own actions do not appear to have zealously safeguarded those privacy interests."

The ruling appears to run contrary to a 2013 decision by U.S. District Court Judge Charles Breyer in the Northern District of California, who ruled that Craigslist could proceed with claims that the data scraper 3Taps violated the Computer Fraud and Abuse Act by scraping publicly available listings.

Chen's decision was cheered by the digital rights group Electronic Frontier Foundation, which has argued against a broad reading of the Computer Fraud and Abuse Act -- an anti-hacking law passed more than 30 years ago.

"Scraping publicly available data in violation of a company’s terms of use comes nowhere near Congress’s original intent of punishing those who break into protected computers to steal data or cause damage," the EFF wrote late last month in a blog post. "Judge Chen’s order is reassuring, and hopefully a harbinger of how courts going forward will react to efforts to use to the CFAA to limit access to public data."