‘LinkedIn Can’t Have Its Cake and Eat It, Too’ Says Influential Digital Rights Nonprofit

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Dec 26, 2017

LinkedIn’s current legal battle with hiQ, which would ultimately make it illegal for the startup to scrape publicly available profile information from the professional networking site, has captured the attention of the Electronic Frontier Foundation. Unfamiliar with EFF? You’re not alone, but the 27-year-old organization carries a lot of weight among those who care deeply about keeping the Internet open and safe from legislation seeking to restrict said openness.

You’ve been hearing a lot about “net neutrality” lately, for example, which is one issue the nonprofit is fighting for, both by legal means, fundraising, and public awareness. In addition to being around almost as long as the Internet itself, the organization employs around 50 people and claimed income of $17.1 million in 2015. In short, this is no lightweight, and LinkedIn’s latest defense against sites looking to scrape user profile data from their site has caught their attention.

In a recent post authored by Jamie Lee Williams, staff attorney at the Electronic Frontier Foundation, entitled “EFF to Court: Accessing Publicly Available Information on the Internet Is Not a Crime,” EFF takes on LinkedIn, saying the company is trying to “take advantage of [a] poorly drafted federal computer crime statute for commercial advantage.”

A little background before diving into EFF’s opinion.

In 1986, the federal government passed the Computer Fraud and Abuse Act. The law sought to criminalize breaking into private computer systems in order to access non-public information as a felony. It’s worth noting there was no Internet-as-we-know-it in 1986. LinkedIn is hoping to use this law and make it a “hacking” felony if anyone violates its corporate policy against using automated scripts to access public information on its website.

I’m not a legal expert, but the law has apparently been used in some instances to enforce a website’s terms of service, enabling them to take action on anyone who doesn’t follow them. Additionally, since 2016, the law has been used to criminalize using someone else’s username and password to access an account that isn’t yours, even if that person willingly shared that information.

According to Williams, within weeks after the decisions were reached, LinkedIn began using these two decisions to use the CFAA to enforce its terms of service prohibition on scraping and thereby block competing services from perfectly legal uses of publicly available data on its website. No doubt this argument will be central to LinkedIn’s appeal against hiQ as we head into 2018.

“HiQ is grateful for EFF’s support,” said Mark Weidick, hiQ’s CEO. “The EFF has a long history of defending the public’s civil liberties in the digital world. They’ve sized up this situation and come out quite clearly on the side of hiQ.  Quite simply, LinkedIn does not own this data, their members do.”

The Problems With LinkedIn’s Position

Williams breaks down the ways EFF believes LinkedIn is in the wrong and will ultimately lose its strategy of keeping out bots from accessing user profile information.

  • Bending the law into something it wasn’t meant to do. Accessing public information on the open Internet cannot — and should not — give rise to liability under a law meant to target breaking into private computers to access non-public information.
  • Throwing the baby out with the bathwater. Williams argues that imposing CFAA liability for accessing publicly available information via automated scripts would potentially criminalize all automated “scraping” tools, including a wide range of valuable tools and services that Internet users, journalists, and researchers around the world rely on every day. Google, as well as a lot of other services, can’t exist without bots.
  • Rule of Lenity. By potentially criminalizing everyday online tools, LinkedIn’s position violates this long-held rule, which requires criminal statutes be interpreted to give clear notice of what conduct is criminal.
  • Old laws can’t do new tricks. A 1986 law is too blunt to be paramount in a complicated digital rights case in 2017. EFF believes doing so will undermine open access to information on the Internet for everyone.
  • Siding with LinkedIn won’t actually protect privacy. Profiles that are inherently posted publicly will never enjoy widespread privacy. The data will still be freely available on the open Internet for malicious actors and anyone not within the jurisdiction of the United States to access and use however they wish. It’s just an illusion of privacy.
  • LinkedIn can’t have its SEO cake and eat it, too. LinkedIn’s success has been supported by organic search traffic from engines like Google and Bing, which index pages on LinkedIn through bots. Essentially, the nonprofit doesn’t think LinkedIn can be open in some ways, but closed in others. The organization also notes that LinkedIn profiles are public by default.

Many in the employment industry are watching the case involving LinkedIn and hiQ closely, and they should, but this case has consequences well beyond our world of recruiting and HR. EFF’s involvement and interest highlights this fact.

“The web crawlers that power tools we all rely on every day, including Google Search and Amici DuckDuckGo and Internet Archive, are Internet bots,” wrote Williams. “News aggregation tools, including Google’s Crisis Map, which aggregated critical information about the California’s October 2016 wildfires, are Internet bots.

“ProPublica journalists used automated scrappers to investigate Amazon’s algorithm for ranking products by price and uncovered that Amazon’s pricing algorithm was hiding the best deals from many of its customers. The researchers who studied racial discrimination on Airbnb also used bots, and found that distinctively African American names were 16 percent less likely to be accepted relative to identical guests with distinctively white names.”

I initially touted LinkedIn vs. hiQ as a David vs. Goliath dogfight, pitting a chihuahua against a pit bull. However, seeing how much impact the decision could have on major corporations, as well as the common good, means this is likely turning into a heavyweight title fight. Grab ya’ popcorn.

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