When the Bots Invaded LinkedIn: A HR Analytics Company Goes to Court to Stop Its Shutdown

hiQ is a people analytics firm that gathers information that is available on the Web and creates software for use by human resources departments (or talent development departments).  The software provides HR departments with a summary of thee credentials and skills of their workforce but also provides them with information as to who is at risk for leaving the company. One of hiQ’s fundamental resources for this software development is LinkedIn, the Microsoft company that  has 500 million people with skills and credential profiles.

hiQ received an e-mail from LinkedIn’s lawyer requesting that it stop doing business because it was using LinkedIn’s proprietary information.  hiQ filed suit seeking a court order that prohibited LinkedIn from telling it to go out of business and allowed it to continue operating while the issues underling the use of LinkedIn’s public data is reviewed. hiQ Labs, Inc. v. LinkedIn Corp, 2017 WL 3473663 (N.D. Cal. 2017).

The court granted hiQ a preliminary injunction that has permitted it to stay in business while the issues related to their rights to LinkedIn data are reviewed for possible violations of various federal and state laws, including the Computer Fraud and Abuse Act (CFAA) which provides two ways of committing the crime of improperly accessing a protected computer: (1) obtaining access without authorization, and (2) obtaining access with authorization but then using that access improperly. LinkedIn is focusing on the second means as criminal action on the part of hiQ. In addition, LinkedIn has argued that hiQ’s use violates the terms users of LinkedIn agree to when they sign up for the site. 

Another argument in the privacy issue raised by LinkedIn, which is that users' information is being used for a purpose that they did not anticipate.  However, LinkedIn users have a choice about which information about them is available publicly.

LinkedIn has also argued that their intent was to have users browse the site but not to have a "bot brigade copying data at scale."  Drake Bennett, "Big Brother vs. Little Brother," Bloomberg Business, November 20, 2017. 

The case brings to mind the Supreme Court precedent in United States v. Jones, 565 U.S. 400 (2012) in which the court held that police attaching a GPS tracking device to a car was a violation of the driver's privacy even thought a police officer driving behind such a driver meant the officer was able to accomplish the same thing and was not a violation of privacy.  LinkedIn is arguing that casual surfing of a website for information is different from bot invasion for purposes of copying the data. 

An appeal to the 9th Circuit is pending.  The court of appeals, and possibly the U.S. Supreme Court, have the task of deciding what constitutes privacy and permissive use in an era in which technology moves faster than our laws and court decisions.

DISCUSSION STARTERS

Make the arguments pro and con on hiQ's use.

Discussion the implications of hiQ's use.