Using Linked for your job searches? Your employer may also be monitoring your LinkedIn profile to find out the same in order to take preemptive action. If this sounds like an HR remake of the sci-fi movie Minority Report, you wouldn’t be too far off.
In that movie, Tom Cruise played a detective in the “Precrime Unit.” The unit used psychics (called “precogs”) to make arrests before the crimes were committed. Here, however, the tech-start-up, HiQ Labs collects LinkedIn user data, analyzes it through an algorithm, and sells the analysis to employers to identify which employees may be looking to join a competitor.
According to hiQ Lab’s website, its “Keeper” tool provides organization with “predictive attrition insights about an organization’s employees … [and] turns those attrition insights into consumable, easy-to-deploy action plans so HR and business leaders can retain their key talent.”
But on May 23, 2017, LinkedIn sent hiQ Labs a cease-and-desist letter to stop accessing LinkedIn’s site. LinkedIn further threatened that its continued access would violate the Computer Fraud and Abuse Act, Digital Millennium Copyright Act, and California Penal Code § 502(c) and constitute common law trespass.
However, hiQ Labs preempted LinkedIn’s threatened litigation and sued for declaratory relief in California District Court. The suit, a copy is available here (hiQ Labs v Linked (PDF), essentially says, everything LinkedIn threatened is a certain waste product from a bull’s digestion system. Or if you prefer a more legalistic and euphemistic explanation:
hiQ seeks a declaration from the Court that hiQ has not violated and will not violate federal or state law by accessing and copying wholly public information from LinkedIn’s website. hiQ further seeks injunctive relief preventing LinkedIn from misusing the law to destroy hiQ’s business, and give itself a competitive advantage through unlawful and unfair business practices and suppression of California Constitutional free speech fair guarantees.
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… it has instead threatened to sue hiQ under federal and state laws pertaining to hacking and unauthorized computer and network access in order to intimidate hiQ and force it to stop accessing these public profiles. But LinkedIn cannot use those laws for an improper purpose to obtain exclusive proprietary control over wholly public data in which it otherwise has no exclusive interest and which hiQ, and anyone else, can freely access on the world wide web with no log-in credentials or password. … LinkedIn would not have that data on its website in the first place but for its promise to LinkedIn members that they can publicly disclose that information on LinkedIn for all the world to see and use.
Aside from the declaratory relief, hiQ has also sued for intentional interference with contracts and business advantages; unfair and fraudulent competition under California law; promissory estoppel; free speech violations under California law (which seems problematic but maybe the judge would see it differently).
On June 30, 2017, LinkedIn and hiQ Labs agreed hiQ may continue to operate, conduct searches, and sell the results like it did before the threatened litigation while the litigation proceeds or until further order.
LinkedIn and Employment Litigation
After an employee leaves his or her employment, LinkedIn provides a wealth of potential evidence. But this evidence is used in post-employment lawsuits, often involving non-compete disputes, trade secret misappropriation, or related claims between individuals and their former employers.
But hiQ Labs seeks to change this by arming companies with data to prevent or head-off such claims. hiQ Labs (unrealistically) argues that this insight is beneficial to LinkedIn and its members because an “employer using [its services] might give an employee a ‘stay bonus’ or a career development or internal mobility opportunity” to keep them from leaving. More likely, the employee is going to be immediately locked out of the employer’s network, fired, and lucky if no further legal action is taken.
And this is precisely why LinkedIn is concerned. It argued that if its members “knew that hiQ was accessing and collecting their data” to flag them to their current employers, “many would not update their profile.”
Also, this is yet another example of how the federal 1986 Computer Fraud and Abuse Act (CFAA) should be applied to advances in technology. Originally, this statute was targeted at criminal hackers. It was later amended to provide civil remedies. Having a federal criminal statute to use or contend with in civil litigation is a game-changer – and not always for the better. For policy considerations see Computer Fraud and Abuse Act: A Criminal Statute That Extends to the Employment Relationship?).
We will continue to monitor this case given the significant impact it has on companies and their employees. For more information, contact attorney Jason Shinn. Since 2001, he has focused on addressing non-compete and trade secret misappropriation claims. He routinely represents businesses and individuals involved in these claims in federal and Michigan Courts, and frequently writes and speaks about these legal issues. Mr. Shinn also routinely represents individuals and businesses involved in CFAA claims that arise from a prior employment relationship.