Microsoft Corp.’s LinkedIn lost an appeal Monday against a company that scrapes its member data in a case that could have implications for privacy laws and fair use across the internet.

The case related to an analytics and data science machine learning company called hiQ Labs Inc. that scrapes data from public profiles of LinkedIn users to help companies better understand their own employees.

LinkedIn sent hiQ a cease-and-desist demand concerning the member scraping in 2017 claiming that the company was violating the Computer Fraud and Abuse Act. HiQ responded with legal action, seeking both an order banning LinkedIn from interfering with its scraping activity and a ruling that its activities did not constitute hacking under the Act.

HiQ won the case in 2018 and LinkedIn appealed. In a 3-0 decision, the San Francisco appeals court ruled that hiQ was in the right. Circuit Judge Marsha Berzon said hiQ showed it faced irreparable harm absent an injunction because it might go out of business without access.

“LinkedIn has no protected property interest in the data contributed by its users, as the users retain ownership over their profiles,” Berzon wrote in the ruling, according to Reuters. “And as to the publicly available profiles, the users quite evidently intend them to be accessed by others.”

In an interesting twist, Berzon also wrote that giving LinkedIn “free rein” over who can use public data risked creating “information monopolies” that harm the public interest. Berzon also raised questions over LinkedIn attempting to use a hacking law to prevent access when no hacking took place.

LinkedIn responded to the finding by saying that it was disappointed and was evaluating its options.

The ruling confirms that companies with publicly available data cannot prevent others from scraping it. Privacy has become a huge issue among tech companies over the last few years not only because of numerous data leaks and hacking scandals but also because access to data has been sold to third parties, the Cambridge Analytica case being the most prominent.

LinkedIn claims that it was opposing hiQ on the grounds of protecting member data, but the question is: How protected is publicly available data to begin with, data that LinkedIn members have opted to make public at that?

The reference to “information monopolies” in the ruling also raises some related points. Closed data silos and a lack of data portability have been identified as problems in the past but it has been up to the goodwill of major players to allow that to happen.

Even when data portability is provided, in 2019 users have little choice in competing services they can port their data to anyway. Whether allowing scrapping facilitates data portability or opens the door in that direction is another matter.

Image: Pixabay