Tech’s fight for the upper hand on open data

Rana Foroohar at the Financial Times: “One thing that’s becoming very clear to me as I report on the digital economy is that a rethink of the legal framework in which business has been conducted for many decades is going to be required. Many of the key laws that govern digital commerce (which, increasingly, is most commerce) were crafted in the 1980s or 1990s, when the internet was an entirely different place. Consider, for example, the US Computer Fraud and Abuse Act.

This 1986 law made it a federal crime to engage in “unauthorised access” to a computer connected to the internet. It was designed to prevent hackers from breaking into government or corporate systems. …While few hackers seem to have been deterred by it, the law is being used in turf battles between companies looking to monetise the most valuable commodity on the planet — your personal data. Case in point: LinkedIn vs HiQ, which may well become a groundbreaker in Silicon Valley.

LinkedIn is the dominant professional networking platform, a Facebook for corporate types. HiQ is a “data-scraping” company, one that accesses publicly available data from LinkedIn profiles and then mixes it up in its own quantitative black box to create two products — Keeper, which tells employers which of their employees are at greatest risk of being recruited away, and Skill Mapper, which provides a summary of the skills possessed by individual workers. LinkedIn allowed HiQ to do this for five years, before developing a very similar product to Skill Mapper, at which point LinkedIn sent the company a “cease and desist” letter, and threatened to invoke the CFAA if HiQ did not stop tapping its user data.

..Meanwhile, a case that might have been significant mainly to digital insiders is being given a huge publicity boost by Harvard professor Laurence Tribe, the country’s pre-eminent constitutional law scholar. He has joined the HiQ defence team because, as he told me, he believes the case is “tremendously important”, not only in terms of setting competitive rules for the digital economy, but in the realm of free speech. According to Prof Tribe, if you accept that the internet is the new town square, and “data is a central type of capital”, then it must be freely available to everyone — and LinkedIn, as a private company, cannot suddenly decide that publicly accessible, Google-searchable data is their private property….(More)”.