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Data scraper must reveal business plan to advance lawsuit against LinkedIn

A company that previously tussled with Craigslist over the right to scrape data from public websites wants a federal judge to declare that LinkedIn can’t stop it from systematically scouring user profiles.

SAN FRANCISCO (CN) — A data scraping firm must explain how it plans to profit from LinkedIn’s member profiles before it can sue the social network on claims it tried to block its access to public information, a federal judge said Thursday.

“How’s this data going to be used? What’s the plan,” U.S. District Judge Edward Chen asked during a virtual hearing on LinkedIn’s motion to dismiss a lawsuit brought by a notorious data scraping firm called 3taps Inc.

This isn’t the first time 3taps has found itself fighting a major online corporation in federal court. The data scraper got embroiled in years of litigation with another online behemoth, Craigslist, about 10 years ago. The San Francisco-based classifieds giant sued 3taps in 2012 for scraping information from its online advertisements and reposting the data on other websites. The lawsuit ended with a settlement in 2015 in which 3taps and co-defendant PadMapper, an online property rental ads firm, paid $1 million to be donated by Craigslist to a digital privacy rights group.

3taps sued LinkedIn in 2018, a few months after Judge Chen issued a preliminary injunction barring the network from blocking another data scraping firm hiQ’s access to its public member profiles. Chen found the Computer Fraud and Abuse Act of 1986 does not prevent a company or person from collecting information from public websites, despite LinkedIn’s argument that hiQ used automated bots to bypass its technological safeguards and track changes to profiles that users choose not to broadcast, undermining its privacy commitment to members.

In its lawsuit, 3taps complained that LinkedIn refused to accept Chen’s interpretation of the law, which was later affirmed by the Ninth Circuit. Responding to a letter in which 3taps announced its intention to start scraping LinkedIn data in January 2018, LinkedIn’s lawyers wrote the law still forbids that activity.

LinkedIn says the lawsuit must be dismissed because 3taps hasn’t shown it will suffer immediate and concrete harm if it engages in “some unspecified hypothetical future scraping activity.”

On Thursday, Judge Chen sympathized with LinkedIn’s position, expressing his view that the data scraper hasn’t adequately explained how it plans to harvest data or if it’s ready to start collecting data immediately — both prerequisites to showing it would suffer imminent financial harm if LinkedIn cut off its access.

“In hiQ, they had a business plan,” Chen said, referring to that company’s program of analyzing recent changes to LinkedIn profiles and telling employers which of their workers might be “flight risks” seeking a new job.

“How do I know this is a real part of this business,” Chen asked. “How’s this data going to be used? What’s the plan?”

Representing 3taps, attorney Thomas Christopher said his client could not reveal the business plan in open court because LinkedIn might use that information to poach potential clients.

“They could destroy our business,” Christopher said.

Chen suggested 3taps submit a redacted complaint with attorneys’-eyes-only information that LinkedIn’s lawyers would be prohibited from sharing with their client.

But LinkedIn’s attorney Annette Hurst implored Chen to exercise his discretion and squash the lawsuit for good. She called it a wasteful use of court resources to spend time resolving disputes over hypothetical harms based on actions not yet taken in real life.

“For businesses to say, ‘OK, we might have a dispute if we do this, and I’m going to run to court every time’ is not a good use of either the court or the litigants’ resources,” Hurst said.

The LinkedIn lawyer accused 3taps of selectively seeking relief for its theoretical scraping plans without tackling other important aspects of the dispute - including whether such activities might violate the social network’s terms of service.

“They’re not trying to address all the disputes here,” Hurst said. “Instead what they’re doing is seeking a safe harbor from an existing permanent injunction.”

Christopher replied that his client is more concerned about the Computer Fraud and Abuse Act and related state laws, which could result in “catastrophic business-destroying damages." He said 3taps is less worried about a breach-of-contract claim “for which LinkedIn has absolutely no damages.”

Judge Chen said he would dismiss 3taps complaint with leave to amend and let the data scraper submit an amended complaint with redacted, attorneys’-eyes-only details describing how it plans to turn a profit from LinkedIn’s public data.

“I guess we will meet again,” Chen said.

LinkedIn manages the largest online professional network on the planet, with more than 810 million members in over 200 countries, according to its website. Microsoft bought the social network for $26.2 billion in 2016.

Follow @NicholasIovino
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