LinkedIn-HiQ spat raises big questions
Mark Weidick thought it had to be some kind of mistake.
In late May, the CEO of HiQ Labs, a data analytics startup in San Francisco, received a letter from LinkedIn, ordering his company to stop using data from user profiles. LinkedIn, the Sunnyvale professional networking company now owned by Microsoft, might as well have told Weidick to just fold up HiQ, because the startup relies on that information in its algorithm to help businesses identify and retain talent.
“I thought we were on good
terms,” Weidick told me, noting that LinkedIn employees even attended a recent conference organized by HiQ. “They knew perfectly well what we are doing. We were doing it in the broad light of day.”
Without that data, “we are in deep trouble,” he said.
HiQ’s situation is only the latest example of how Silicon Valley stalwarts have been cracking down on firms they suspect of “data scraping,” the practice of extracting user data from social media accounts or websites like Yelp or Wikipedia for business purposes. Companies like LinkedIn, Twitter and Facebook view scraping of the data generated by their users not just as theft — they sometimes charge to license data — but a violation of their users’ privacy, because some information can be limited so not all users can view it.
In 2009, Facebook successfully sued Power Ventures for copying updates and profile information from its pages. And for years, LinkedIn, which charges recruiters, salespeople and job hunters for higher levels of access to profile data, has gone after makers of software bots that scraped information off user profiles.
“Our members control the information that they make available to others on LinkedIn,” the company said. “We are confident the court will support the actions we take to stop unlawful scraping of our members’ profile data.”
Data scraping sounds nefarious, but such information is often public — just not formatted in a way that computer programs find easy to process. Wikipedia, for example, makes pages from the free online encylopedia available for some uses.
Last month, a federal judge granted HiQ’s request for a temporary restraining order against LinkedIn.
HiQ’s situation is not merely a dispute between two companies. Though early, the case could well end up in the U.S. Supreme Court. A decision would ultimately guide courts on how to meld high-minded ideas about freedom forged in the 18th century with the 21st century digital economy.
But don’t take my word for it.
The case could very well establish “a lasting precedent on applying constitutional principles to social media,” famed Harvard law Professor Laurence Tribe told me.
As constitutional scholars go, Tribe is perhaps the nation’s most preeminent authority on the subject. As you can imagine, Tribe is in high demand these days: He has argued and won more than 30 cases before the Supreme Court and has taught or mentored people like former President Barack Obama and U.S. Chief Justice John Roberts.
Tribe tells me he accepts probably 1 in 100 requests for his help on cases. He is advising HiQ because of the important constitutional and economic issues the case poses.
“For a long time, this has been a central concern for me,” Tribe said. “Today, social media is the new equivalent of the public square. (LinkedIn’s actions present) a serious challenge to free expression in the modern world.”
“Freedom of speech is not just about flag burning,” he said. “It’s about how you use information in the digital economy. Data is the new form of capital in creating products and services.”
In other words, the case doesn’t merely concern itself with abstract principles argued by law students in classrooms. Data analytics — a general term describing companies using powerful software to collect and analyze information in order to spot patterns and made predictions— has become a crucial industry for Silicon Valley.
Research firm IDC predicts that global revenue from data analytics will reach $150.8 billion this year, an increase of 12.4 percent over 2016. The company expects the market to grow at an annual rate of 11.9 percent through 2020.
Data analytics can be just about anything, from retail sales information to the performance of components in an industrial plant. Many of the software tools created to manipulate and analyze information on such a huge scale, though, originated at tech companies like Google, Facebook and LinkedIn, which collect data generated by billions of Internet users. LinkedIn engineers even created a tool called — I’m not making this up — Gobblin. It’s designed to ingest massive amounts of data from internal and external sources.
That’s why it’s not surprising that companies like LinkedIn, which harbors plans for its own data analytics business, want to control that information.
“It seems like the crux of the dispute is a business decision on LinkedIn’s part about building out their analytics functionality, and they view HiQ as a competitor (or) threat,” Scott Shackelford, chairman of the cybersecurity program at Indiana University in Bloomington, wrote in an email. “I’m all for protecting the privacy of users who demand it, but it seems like the question here is how (far) ... can firms go to guard against data scraping of public profiles.”
What particularly irks free speech advocates is the way LinkedIn is trying to do so.
LinkedIn argues that HiQ’s actions violate two federal laws: the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act.
Nate Cardozo, a senior staff attorney for the Electronic Frontier Foundation in San Francisco, said copyright law doesn’t apply to this case because information from LinkedIn profiles, like when someone worked at a particular company, are facts, not creative works like music or films.
But the use of the fraud act, a law meant to prevent hacking, is especially galling, Cardozo said. HiQ, LinkedIn argues, is stealing information from people even though users have already made the data available for all to see.
“I think it’s BS,” Cardozo said.
Even worse, LinkedIn’s theory cynically distorts the law’s intention: to prevent outside parties with malicious intent from illegally accessing computer systems, Tribe said.
“They are perverting the whole point of the statute,” he said. “They are using a blunt instrument of the law to try to cordon off the information marketplace from competitors.”
Cardozo said the case is still in its early stages. But should it advance through the courts, the foundation, too, plans to weigh in because of its impact on Silicon Valley and the broader economy.
“Today, social media is the new equivalent of the public square. (LinkedIn’s actions present) a serious challenge to free expression in the modern world.” Laurence Tribe, Harvard law professor