‘Major decision for the open internet,” — Orin Kerr, law professor at the University of California at Berkeley

On September 9, in a 3-0 decision, the U.S. Court of Appeals let stand an August 2017 preliminary injunction that upheld HiQ’s right to analyze data scraped from LinkedIn’s profiles.

Until LinkedIn precipitously interfered with HiQ’s business model, HiQ used data to determine when employees might leave for another company, or what companies should invest in so that employees could be more productive and happier in their work environment. HiQ’s goal was to reduce employee turnover by motivating corporations to upgrade their workers’ skill sets.

The court’s decision has the following consequences:

1. HiQ could have access to LinkedIn data where there was little or no expectation of privacy.

2. Scraping public data does not violate anti-hacking laws.

The Ninth Circuit’s ruling updated and clarified the 1986 Computer Fraud and Abuse Act (CFAA). The court’s decision is a major win for research and innovation. Until now, CFAA could be used as a broad blocking weapon against anybody who uses a computer in a way a company or government disagrees with.

Circuit Judge Marsha Berzon said HiQ helps employers determine whether employees will stay or quit. HiQ argued it faced irreparable harm absent an injunction because it might go out of business without access. She also said giving companies such as LinkedIn “free rein” over who can use public data risked creating “information monopolies” that harm the public interest. The court opined that LinkedIn does not own the data. Instead, it collects and uses the data and makes it publicly available.

Orin Kerr, law professor at the University of California at Berkeley, a scholar on computer crime law, made the following prophetic statements: “It doesn’t establish that scraping websites is legal, but it goes a long way toward establishing that it is not a federal crime. While a hacker could be arrested for breaking into a website, a person cannot be arrested and prosecuted just for visiting it.”

At the hearing, HiQ’s attorneys pointed out that prior to the Microsoft acquisition of LinkedIn, HiQ and LinkedIn had an excellent working relationship. LinkedIn officials attended HiQ’s meetings with clients where they learned about HiQ’s business operations. Furthermore, HiQ even provided positive recognition to several LinkedIn officials.

What changed? HiQ’s lawyers raised the possibility that Microsoft wanted to start a company that would compete with HiQ.

Until now, the European Union (EU) has been the most aggressive jurisdiction to regulate and impose billion-dollar penalties on big tech. EU has repeatedly found that big tech stifled competition.

In July, the Justice Department announced it was launching a wide-ranging antitrust review of big tech companies. Its inquiry raised concerns about search, social media, and some retail services online. The Justice Department will study how major online platforms grew to have their big market power and whether they are acting in ways that have reduced competition, stifled innovation, or otherwise harmed consumers.

The Justice Department should expand its mission to determine whether it is in the public interest to force Microsoft to divest of LinkedIn. To date, the courts have ruled that Microsoft’s behavior has not only stifled competition but also inhibited American citizens’ rights to an open Internet. An open Internet facilitates the freedoms guaranteed by our Bill of Rights.

Small companies such as HiQ face formidable odds against behemoths such as Microsoft. We need to remember the words of Martin Luther King: “The moral arc of the universe is long, but it bends toward justice.” HiQ waited two years for justice.

That is a long time to reside on death row.

For full disclosure, I have investments in bot h HiQ and Microsoft.

Originally published in the Sarasota Herald-Tribune