SAN FRANCISCO (CN) — Harvard law professor Laurence Tribe defended a company’s right to scrape data from LinkedIn at a federal injunction hearing Thursday, saying barring it would be no different than barring speakers from a public square.
“If you exclude someone from sites like LinkedIn, Facebook and Twitter, you are excluding them from the modern version of the town square,” Tribe told U.S. District Judge Edward Chen.
Tribe, an expert in constitutional law, was defending the right of his client, HiQ, to track changes LinkedIn members make to their profiles, even changes they choose not to publicize. HiQ uses that information to alert its clients — including CapitalOne, eBay and GoDaddy — which of their employees might be seeking a new job.
“More than 10,000 of our members work for employers that are HiQ clients,” LinkedIn attorney Donald Verrilli said. “HiQ is ratting them out to their employers, broadcasting the very information they don’t want broadcasted.”
LinkedIn claims HiQ uses anonymous, automated bots to bypass security measures and scrape data from its website, undermining LinkedIn’s privacy commitments to its members.
HiQ, a 3-year-old San Francisco startup, says it has a First Amendment right to collect information from the web pages of LinkedIn members who choose to make their profiles public.
“To choke off speech and the precursor of speech, the gathering of facts and the analysis of information, is a dangerous path down which we should not go,” Tribe told the judge.
But LinkedIn attorney Donald Verrilli Jr. said his client can choose who has access to its website and place conditions on that access, under the Computer Fraud and Abuse Act of 1986.
“Routinely, information is made public with conditions,” Verrilli said, drawing comparisons with public libraries that limit access and public museums that prohibit taking photos of art.
Chen asked if such conditions could be placed on information presented in a more public setting, such as the worldwide web or a town center.
“What if the museum had a display outside in the public square?” Chen asked. “Could they say, ‘No photos’?”
Verrilli said the government is subject to higher constitutional scrutiny than a private company liked LinkedIn. He added that if someone were ordered to leave a property, as HiQ had been told through a cease-and-desist letter, the person could be charged with trespassing if they return.
But HiQ attorneys said it would be outrageous to charge someone with a crime for visiting a public website.
“To say to one of billions of people, ‘You can’t type in our URL and visit this website or you’ll be criminally charged,’ that would be an absurd result,” HiQ attorney Carl Wisoff said.
But Verrilli said HiQ is not merely viewing the site, but using automated bots to scrape data from hundreds of thousands of webpages. LinkedIn must be allowed to stop such bots to protect its members and servers, he said.
HiQ attorney Deepak Gupta said his client does not dispute LinkedIn’s right to stop malicious intruders to its site, but those security measures must be “narrowly tailored.”
Chen said that forcing all websites to meet a standard like that could pose problems.
“Any website on the internet that wanted to block bots would have to stand up to constitutional scrutiny,” Chen said. “That would be quite a burden: a narrowly tailored review for every website.”
HiQ says that scrutiny is necessary to prevent LinkedIn and other firms from using the law as “a weapon” to stifle competition. HiQ claims that LinkedIn’s true motivation for revoking its access is to cut out a competitor — not to protect its members’ privacy.
If LinkedIn can block a competitor’s access to public data without scrutiny, it could do the same to others based on their race, gender or political beliefs, Tribe told the judge.
Verrilli replied that Chen should not consider such hypothetical situations.
“The court can reserve for another day what to do in a case where those circumstances are present,” Verrilli said.
Tribe countered that failing to analyze whether the revocation of access stands up to constitutional scrutiny could empower companies liked LinkedIn to discriminate.
“He [Verrilli] says, ‘Let’s not worry about excluding people because of race because it hasn’t happened yet,’” Tribe said. “Well, this case hasn’t happened yet.”
In a previous hearing, Chen said the case could have “serious implications” for privacy rights and freedom to access public information on the web.
LinkedIn and HiQ struck an agreement this month to give HiQ access to LinkedIn’s site until Chen issues his ruling on the request for a preliminary injunction.
HiQ says it has lost 10 of its 24 employees since LinkedIn blocked its access, and that the company will likely go under if it cannot regain access to its primary data source.
LinkedIn claims it will face irreparable harm in the form of loss of its members’ trust, which it calls an integral part of its business model, if Chen grants the injunction.
“I have a feeling this is not going to end here,” Chen said at the end of Thursday’s three-hour hearing, adding that he would try to issue a ruling “quickly.”
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