HiQ scrapes web pages nearly thousands of employees of public LinkedIn pages, then packages the information for marketing to employers annoyed about their employees leaving. LinkedIn, which was obtained by Microsoft last year, sent hiQ a cease-and-desist letter threatening that this scraping broke the Computer Fraud and Abuse Act, the contentious 1986 law that makes PC hacking a crime. HiQ sued, asking governments to rule that its actions did not, in fact, break the CFAA.
James Grimmelmann, an educator at Cornell Law School, told News that the palings here go well exceeding the fate of one little-known company.
“Lots of companies are formed for connecting data from a lot of sources,” Grimmelmann said. He explained that scraping is a key way that businesses bootstrap themselves into “becoming the scale to do something exciting with that data.” If scraping without permission becomes illegal, startups like hiQ will have a difficult time getting off the ground.
But the law may be on the side of LinkedIn particularly in Northern California, where the lawsuit is being tried. In a 2016 ruling, the 9th Circle Court of Appeals, which has authority over California, decided that a startup called Power Ventures had infringed the CFAA when it remained to access Facebook’s servers notwithstanding a cease-and-desist letter from Facebook.
Some aspects of that situation were different Power Ventures was giving out private messages with the consent and cooperation of Facebook users, while hiQ is scraping data on public web pages. But experts told News that the Power Ventures model is likely to be bad news for hiQ because it implies that proceeding to access a site after implying asked to stop is enough to trigger the anti-hacking law.
The CFAA presents it a crime to “access a network without permission or exceed authorized access.” Courts have been struggling to decide what this involves ever since Congress passed it more than 30 years ago.
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