Supreme Court Resuscitates LinkedIn’s Attempt To Leverage Anti-Hacking Law To Hide Public Data From Rival

On Monday, the U.S. Supreme Court threw out a lower court ruling that had prevented the business social media platform, LinkedIn, from denying access to publicly-available user data by hiQ Labs, its rival.

With this decision, LinkedIn — which is owned by Microsoft — now has “another chance to try to stop rival hiQ Labs from harvesting personal data from the professional networking platform’s public profiles — a practice that LinkedIn contends threatens the privacy of its users,” according to CNBC.

This debate is centered on whether or not companies can use the Computer Fraud and Abuse Act — federal anti-hacking legislation which is designed to prevent unauthorized access to computers or relevant stored data — to “block competitors from harvesting or ‘scraping’ vast amounts of customer data from public-facing parts of a website.”

The debate between competitors LinkedIn and hiQ Labs now goes back to the 9th U.S. Circuit Court of Appeals in San Francisco. The Court will now “reconsider in light of their June 4 ruling that limited the type of conduct that can be criminally prosecuted under the same law. In that case, the justices found that a person cannot be guilty of violating that law if they misuse information on a computer that they have permission to access.”

As CNBC pointed out, this case highlights the debate surrounding the access and profitability of “personal” and yet “publicly available” information online. This case began when LinkedIn threatened hiQ with legal action in 2017 for “scraping LinkedIn’s public profiles.” HiQ then responded by suing LinkedIn in federal court, “accusing LinkedIn of anti-competitive conduct,” and arguing that “public data must remain public and innovation on the internet should not be stifled by anti-competitive hoarding of public data by a small group of powerful companies.”

As Yahoo! Finance reported, the Computer Fraud and Abuse Act (CFAA) was “once dubbed the ‘worst law’ in the technology law books by critics who have long argued that its outdated and vague language failed to keep up with the pace of the modern internet.”

“LinkedIn’s expansive interpretation of the CFAA would exacerbate the law’s chilling effects—not only for the security research community, but also for journalists, discrimination researchers, and others who use automated tools to support their socially valuable work. Similar lawsuits are already starting to pop up across the country, including one by airline RyanAir alleging that Expedia’s fair scraping violated the CFAA,” argued the Electronic Frontier Foundation (EFF) in December 2017.

The EFF described the CFAA as “an old, blunt instrument,” and that “trying to use it to solve a modern, complicated dispute between two companies will undermine open access to information on the Internet for everyone.

“The power to limit access to publicly available information on the Internet under color of the law should be dictated by carefully considered rules that balance the various competing policy interests. These rules should not allow the handful of companies that collect massive amounts of user data to reap the benefits of making that information publicly available online—i.e., more Internet traffic and thus more data and more eyes for advertisers—while at the same time limiting use of that public information via the force of criminal law,” the EFF wrote in their amicus brief.

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