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An Important Legal Victory in the Boing Boing Case



The Ninth Court of Appeals affirmed that the Computer Fraud and Abuse Act (the hacking act of 1986, enacted after the movie Moral Panic Wargames ) does not prohibit access to public information from websites, even if do so against the wishes of the website operator.

The case involves Linkedin and Hiq, a company that does "employer analysis" and scrapes Linkedin's public profiles to do so. Linkedin launched a competitive service and threatened to judge Hiq under the CFAA; and Hiq responded, requesting a declaratory judgment that the CFAA did not access publicly available information.

The CFAA defines hacking broadly: "exceeding the permission" of someone else's computer is prohibited under the plain language of the act. But, as the court of appeals found, the CFAA seeks to cover "computer intrusions" rather than violations of the terms of service that you are permitted to use.

The Court of Appeal also ordered Linkedin not to interfere with the scraping of Hiq, as this would remove Hiq from work before the case was heard. It remains to be seen whether Linkedin will continue to judge Hiq according to other legal theories or will seek other actions that might allow it to block Hiq's scrapers.

"None of the computers to which the CFAA originally applied was accessible to the general public," the court wrote. "An affirmative permit of some kind is supposedly required."

When the bill was extended to more computers in 1

996, the Senate report stated that its purpose was "to enhance the protection of confidentiality and confidentiality of computer information." As a result of the 9th Circuit, "the unauthorized access ban has been correctly understood to apply only to private information – information designated as private using any authorization requirement".

In contrast, hiQ only scrapes information from LinkedIn public profiles. By definition, every user of the public is allowed to access this information. LinkedIn claims that it may selectively revoke this permission using a termination and denial letter. But the Ninth Circuit found this unconvincing. Ignoring a termination and denial letter is not analogous to hacking on a private computer system.

Scratching the web does not violate the law on hacking, the rules of the court of appeal [Timothy B Lee/Ars Technica]

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Cory Doctorow

I'm writing books. My most recent are: a graphic novel by YA called In Real Life (with Jen Wang); science fiction book about the arts and the internet called Information Doesn't Want to Be Free: The Laws of the Internet Age (with an introduction by Neil Gaiman and Amanda Palmer) and a YA science fiction novel called "Homeland" (this is the sequel to "Little Brother" "), I talk everywhere and I tweet and I shake too.

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