• by Wendy Davis  @wendyndavis, October 5, 2017

Social networking service LinkedIn is asking appellate judges to lift an order requiring it to allow data to be scraped by HiQ Labs. 

The injunction, issued in August, "ignored bedrock antitrust principles by imposing on LinkedIn a duty to assist a would-be competitor," LinkedIn argues in papers filed this week with the 9th Circuit Court of Appeals.

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. The dispute between LinkedIn and HiQ dates to May, when LinkedIn demanded that HiQ stop scraping data from the service.

LinkedIn argued that HiQ's scraping violates the Computer Fraud and Abuse Act, an anti-hacking law that prohibits companies from accessing computer servers without authorization. The social networking service, now owned by Microsoft, also implemented technical measures aimed at blocking HiQ. The users' information remained publicly accessible.

HiQ then sued LinkedIn for allegedly acting anti-competitively. HiQ sought a declaratory judgment that it wasn't violating the anti-hacking law, and asked for an injunction requiring LinkedIn to stop blocking HiQ.

LinkedIn countered that it has the right to control its servers, and that HiQ was disregarding LinkedIn users' privacy. The social networking service said 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.

U.S. District Court Judge Edward Chen in the Northern District of California sided with HiQ. He granted the startup an injunction on the grounds that HiQ's business could suffer "irreparable harm" if prevented from accessing publicly available information about LinkedIn's members.

LinkedIn is now asking the 9th Circuit to vacate Chen's order. LinkedIn company argues that it has the right to protect the data on its servers from outside parties, and that HiQ has no valid antitrust claim.

"Rather than putting in the effort to build its own business, hiQ expropriates member data from LinkedIn’s servers on a massive scale, and then turns around and sells that data to companies that wish to furtively monitor their employees," LinkedIn says in its appellate papers.

LinkedIn adds that it doesn't have an obligation to "assist hiQ by allowing hiQ’s bots to expropriate data from LinkedIn’s servers."

Chen's ruling also appeared to reject LinkedIn's position that a company can violate the Computer Fraud and Abuse Act by accessing publicly available web pages. But in 2013, a different federal judge -- Charles Breyer in the Northern District of California -- ruled that Craigslist could proceed with claims that the data scraper 3Taps violated the Computer Fraud and Abuse Act by scraping publicly available listings.

HiQ is expected to respond to LinkedIn's arguments by October 31.