Constitutional Heavyweights Spar in Public LinkedIn Data Fight

SAN FRANCISCO — Is the Internet a public forum where all sorts of speech and information gathering are allowed under the First Amendment? Or is it more like a piece of real estate where websites can bar entry to trespassers as they see fit?

Those were among the meaty questions tackled Thursday afternoon by two of the country's pre-eminent constitutional advocates—Munger, Tolles & Olson partner Donald Verrilli and Harvard Law School professor Laurence Tribe—in a bet-the-company case that has the potential to shape the future of the web.

The pair squared off in a case pitting Verrilli's client, professional networking site LinkedIn Corp., against hiQ Labs Inc., a data analytics startup represented by Tribe and lawyers from Farella Braun + Martel.

Until recently, hiQ used data from publicly available LinkedIn user profiles to create analytic tools for employers to identify valuable workers and map the skills of their workforces. The 24-employee startup received $14.5 million in venture capital seed money and has worked for such companies as eBay, Capital One and GoDaddy. 

But in late May, in-house counsel for LinkedIn sent hiQ a cease-and-desist letter claiming the startup's data-scraping activities were prohibited under the site's terms of service. LinkedIn blocked hiQ's access and warned any further efforts to access the site would risk violating the Computer Fraud and Abuse Act, or CFAA, a federal anti-hacking law passed in 1986 that carries civil and criminal penalties.

The resulting legal tumult unfolding in front of U.S. District Judge Edward Chen of the Northern District of California has left hiQ in a bit of a tailspin. Farella's Deepak Gupta said at the hearing, where hiQ was asking for an injunction barring LinkedIn from blocking its access to public profiles, that the company was down to 15 employees and would struggle to find further funding without access to its primary data source.

Chen said the case presents "a number of cutting-edge issues" and grappled with just how to apply the CFAA and First Amendment to a public website such as LinkedIn, which in some ways functions as the 21st century equivalent of a town square.

Verrilli said the CFAA "squarely" addresses the sort of "computer trespass" at issue in the case. LinkedIn, he said, places conditions on accessing its public profiles in much the same way a public library makes information available. The library, he pointed out, can revoke access to someone trying to break in at 2 a.m., presenting a fake idea, or habitually keeping items past their due date. Likewise, museums that display art publicly often place restrictions on viewers, such as prohibiting flash photography.

Chen jumped in on the museum analogy: What if a museum had a sculpture located in an outdoor space open to the public and prohibited photographs altogether? Would taking a photograph in the public space constitute trespass?

Verrilli said the hiQ case was more like asking someone to leave for taking a photograph, then having them come back onto the museum grounds, a clear instance of trespass.

Tribe, for his part, seemed to persuade the judge that LinkeIn's reading of the CFAA may open the possibility that companies could bar access on all sorts of inappropriate grounds, such as race or religion. "We're talking about users that could be employing a forbidden criterion causing lots of harm with lots at stake," Tribe said.

Chen asked Verrilli to address Tribe's point, asking "Isn't that troubling?"

Verrilli said that the requirement that a company must show a $5,000 loss to maintain a cause of action under the CFAA weeds out those sorts of problematic cases.

The judge, Verrilli said, shouldn't make his decision based on "a far-fetched hypothetical that never comes up in the real world."

Chen took hiQ's preliminary injunction motion under submission at the end of the two-and-a-half-hour hearing. The judge nodded toward an expected appeal in the hearing's closing moments. "I've got a feeling it's not going to end here," Chen said.

Ross Todd is bureau chief of The Recorder in San Francisco. He writes about litigation in the Bay Area and around California. Contact Ross at rtodd@alm.com. On Twitter: @Ross_Todd.

Contributing Author

Ross Todd

Ross Todd is bureau chief of The Recorder in San Francisco. He writes about litigation in the Bay Area and around California. Contact Ross at...

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