Nope. The 'scam' in the flash boys (from the interviews - as per usual Slashdot expectations I haven't read the book) is that someone places a very large stock order for X at the current ask price that is routed to multiple markets. Let's call them A, B and C. From your trader the delays to those markets are 10ms, 100ms and 200ms respectively (which are ridiculously high numbers for this game). Your HFT trader has collocated servers at markets A,B,C, and minimal-latency links between their servers. So when the order arrives on market A and fills, they think 'Hmm, someone is looking for a shedload of X. They then place instructions to buy on the other markets, followed by orders to sell at a slightly increased price. They have 90ms (- the time for exchange A to match, fill, post market data etc., and the time for orders to be placed on other exchanges). It's like some slow moving person walking from stall to stall in a (physical) market buying all the oranges, and announcing loudly that they are doing so. Is it illegal to run to the next stalls, buying all the oranges and then offering them back to the slow moving guy?
All the information is public. The market data feeds are available to anyone. You pay for more up to date market data (which includes details of fills, not orders placed) - you don't pay for the 20-minute delayed stuff on google/yahoo, but you do if you want it faster. You pay for collocation. You pay for those low-latency connections. You used to pay for a trading desk on the stock exchange floor, guys in coloured blazers who could calculate and make decisions faster. The system has never been 'fair', but HFT doesn't necessarily make it worse.