On The Case

Data scraper’s case v. LinkedIn pits free speech against CFAA, DMCA

(Reuters) - A data-crunching startup called hiQ relies entirely on the public profiles of LinkedIn users. HiQ sells “people analytics” to companies including eBay, Capital One and GoDaddy, scrutinizing employees’ LinkedIn profiles to advise clients on managing their workforces. HiQ employs 24 people and has raised $14.5 million in venture capital on the premise of access to information that LinkedIn users have agreed to allow the world to see.

LinkedIn does not want hiQ to access that information. On May 23, LinkedIn sent hiQ a cease and desist letter accusing hiQ of violating LinkedIn’s user agreement by scraping and copying data from other users. The letter demanded that hiQ stop using information gleaned from LinkedIn and informed the data cruncher that LinkedIn has blocked its access. If hiQ tries to circumvent the block, LinkedIn said, it will be in breach of the federal Computer Fraud and Abuse Act, the Digital Millennium Copyright Act and California trespass law.

HiQ brought in Deepak Gupta of Farella Braun & Martel, who reminded LinkedIn counsel Abhishek Bajoria in a phone conversation that LinkedIn allows other companies, including Google, Yahoo and Bing, to use automated software to access and index its users’ public profiles. Gupta asked, according to his sworn statement, whether LinkedIn had cut off hiQ because it intends to develop competing products. According to Gupta, Bajoria said he did not know.

HiQ now contends in a declaratory judgment suit in San Francisco federal court that LinkedIn is abusing the CFAA, DMCA and California state laws in an attempt to shut down a competitor. In a parallel motion for a temporary restraining order, hiQ argues that the California Constitution and state court precedent guarantees hiQ’s free speech right of access to LinkedIn users’ public profiles. (HiQ withdrew the TRO motion for settlement talks with LinkedIn. According to a joint stipulation filed last week, those talks have failed and hiQ will file a renewed TRO application on Thursday.)

The case is shaping up as a big test of how much control a social media site can wield over information its users have deemed to be public. LinkedIn, which is represented by Munger Tolles & Olson, hasn’t yet filed any response to hiQ’s assertions, but its May 23 letter to hiQ says its user agreement – which hiQ touts as its justification for accessing users’ public profiles – specifically prohibits scraping and copying user information, as well as trading and selling information related to LinkedIn user data. LinkedIn appears to be poised to argue that even though its users want at least some of their information to be publicly available, LinkedIn is entitled to block access to the data.

The LinkedIn letter cites the 9th U.S. Circuit Court of Appeals’ December 2016 ruling in Power Ventures v. Facebook, in which the 9th Circuit held (among other things) that the social media site Power Ventures had violated the CFAA by continuing to access Facebook after Facebook rescinded its authorization to do so. Under Power Ventures, LinkedIn suggested in its letter to hiQ, hiQ will be on the hook for CFAA liability if it attempts to defy LinkedIn’s revocation of access.

HiQ claims LinkedIn’s supposed threats are not only anticompetitive but also a violation of the data scraper’s free speech rights. The company’s lawyers, who now include Harvard law professor Laurence Tribe, argued that under the California Supreme Court’s 1979 decision in Robins v. Pruneyard Shopping Center and its progeny, LinkedIn cannot restrict the flow of public information. In Pruneyard, the state high court held that high school students collecting signatures for a petition protesting a United Nations resolution had a free speech right to approach shoppers at a privately-owned outdoor mall. HiQ argued in its withdrawn TRO brief that LinkedIn is, essentially, an electronic equivalent of the Pruneyard shopping center, “a marketplace of ideas on a previously unimaginable scale,” the TRO said.

“LinkedIn refers to itself as a ‘community’ and expressly holds itself out as a place ‘to meet, exchange ideas (and) learn,’” the brief said. “When a private property owner opens its property to the public, constitutional principles of free and open speech and access to information must be fully respected.”

HiQ’s brief is refreshingly candid, which seems appropriate for company relying on its free speech rights. The data scraper said it will go under without access to information from LinkedIn’s public user profiles – access that, hiQ points out, does not actually require LinkedIn membership. The company contends it is on the verge of a new financing agreement and is in talks to enter client relationships with Bank of New York Mellon, Chevron, Groupon, Honeywell and IBM. “All of these deals are endangered by LinkedIn’s conduct,” hiQ claims.

I emailed LinkedIn lawyer Jonathan Blavin of Munger Tolles but didn’t hear back. We’ll see what his client has to say about hiQ’s free speech argument on June 26, when LinkedIn is scheduled to respond to the data scraper’s TRO motion. HiQ lawyer Deepak Gupta declined to comment.