Lawyers for LinkedIn Inc. and data-mining startup hiQ Labs Inc. jousted in court Thursday afternoon in a case that could determine the fate of hiQ.
Until recently, hiQ was using data from public LinkedIn profiles to create analytics tools for employers to identify valuable workers and map the skillset of their workforces. But in-house counsel for LinkedIn sent the company a cease-and-desist letter in late May claiming that hiQ’s scraping activities were prohibited under the site’s terms of service. LinkedIn set up technical barriers to block hiQ’s access and warned that any further efforts to access the site would risk violating the Computer Fraud and Abuse Act, a federal anti-hacking law passed in 1986 that carries civil and criminal penalties.
HiQ returned fire with counsel from Farella Braun + Martel earlier this month suing LinkedIn in federal court in San Francisco asking for a declaratory judgment allowing it to continue collecting information from publicly available LinkedIn profiles. The dispute pits the interest that social media companies like LinkedIn have in policing access to their sites against the ability of data-crunchers like hiQ to gather publicly available material on the web.
On Thursday afternoon, hiQ’s lawyers, Deepak Gupta and C. Brandon Wisoff of Farella, sparred with LinkedIn’s outside counsel, Jonathan Blavin of Munger, Tolles & Olson, over whether hiQ should be granted a temporary restraining order allowing it to resume its data-mining activities.
Blavin informed U.S. District Judge Edward Chen of the Northern District of California, who is overseeing the case, at the beginning of the hearing that LinkedIn was willing to extend a “standstill” period allowing hiQ to access the site until the case can proceed to the preliminary injunction phase. Chen, however, opted to move forward with the hearing since hiQ’s lawyers declined to immediately take up the offer. The parties ultimately agreed to a standstill late Friday evening, and noted in court papers that Thursday’s hearing would become part of the record on hiQ’s preliminary injunction motion.
Chen said early in Thursday’s hearing that the merits of the case are “a big deal” and that the issues presented are “all quite novel.” The judge said that it seemed reasonable that a website like LinkedIn would be able “to control certain levels of access” by bots and web crawlers. But at the same time, he said it was “troubling” to him that the CFAA might leave companies in hiQ’s position—that have been denied access to publicly available information—criminally culpable.
“I’m troubled by this notion both ways,” Chen said.
For LinkedIn’s part, Blavin said the company refuses 95 million automated attempts to access its site per day and the company can’t always distinguish commercial actors like hiQ from hackers with more nefarious intentions. He said that even though the site allows search engines such as Google and Bing to scan LinkedIn, users are given the ability to opt out of having their information indexed and appearing in search results. LinkedIn’s terms of service, he said, are clear that crawling the site and exploiting user data are both prohibited.
“The harm that they’re claiming was entirely foreseeable and preventable,” Blavin said.
In response, Farella’s Gupta pointed out that hiQ only gathers information from sections of LinkedIn’s site that users have designated to make public anyway. “They can’t police what third parties are doing with information” that’s already public, he said. Gupta’s partner, Brandon Wisoff, added that LinkedIn’s user agreement reserves the right for LinkedIn “to use the information in the same way they are precluding others from.” HiQ’s lawyers argued that free speech rights in California’s Constitution and state court precedent protect its right to access to the public profiles.
But Blavin said Thursday that in its scraping activity, hiQ was acting only as a listener, not as a speaker.
“These surveillance bots are not speaking on the LinkedIn website,” Blavin said.
Chen, however, pushed back on that point, calling Blavin’s approach “formalistic.” The right to receive information, Chen said, is “just as critical” as the right to provide it.