US: LinkedIn takes data scraping fight to Ninth Circuit

Weighing privacy rights against access to public data, a Ninth Circuit panel on Thursday, March 15, wrestled with whether a 1984 law permits LinkedIn to keep its website off limits to a company that mines its data to tell employers which workers are “flight risks.”

In August last year, US District Judge Edward Chen ruled that LinkedIn could not use the Computer Fraud and Abuse Act, a 1984 anti-hacking law, to block the company hiQ from deploying bots to scrape data from its public website.

HiQ sells information to clients, including CapitalOne, eBay and GoDaddy, on which employees may be seeking a new job, based on information culled primarily from public LinkedIn profiles.

During a hearing on Thursday, LinkedIn attorney Donald Verrilli Jr. warned that upholding Judge Chen’s ruling could have dire consequences for the free flow of information online.

“That’s going to create very substantial pressure for companies that now have public facing sites to pull them back behind password walls, which will inhibit the free flow of information,” said Verrilli, who served as US Solicitor General from 2011 to 2016.

Companies like Craigslist, the online advertising platform, filed amicus briefs arguing that networks like LinkedIn must be able to protect their public websites from unauthorized access and “bad actors.” The Electronic Privacy Information Center (EPIC), a digital privacy rights group, also filed a brief, saying LinkedIn users never expected their profile data would be “acquired and monetized by unknown third parties” when they joined the social media network.

But others, like digital civil liberties group Electronic Frontier Foundation, say a ruling in favor of LinkedIn would transform an anti-hacking law into a “tool for policing the use of publicly available information.”

During the hearing on Thursday, Verrilli compared LinkedIn’s website to a physical bookstore. “If I own a bookstore, it’s open to the public. Anybody can come in, and the information is available. But if somebody is shoplifting and I catch them, I can bar them from coming back,” Verrilli said.

US Circuit Judge Marsha Berzon challenged that analogy. She said hiQ claims it is merely viewing publicly available data, not stealing it.

The circuit judge added that she is “concerned” that letting LinkedIn block access to its public website could embolden other websites to restrict activities that might further learning and research.

Full Content: Courthouse News

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