During a recent federal injunction hearing, Harvard law professor Laurence Tribe defended his client's right to scrape data from LinkedIn.
Tribe told U.S. District Judge Edward Chen, that by excluding someone from sites such as LinkedIn, Facebook and Twitter, is the equivalent to excluding them from the modern version of a town square.
As an expert in constitutional law, Tribe was defending his client HiQ's right to track changes LinkedIn members make to their profiles, including changes which they choose not to make public. Once obtained, HiQ then uses the information to alert its clients, including eBay, GoDaddy among others, which of their employees are looking for a new job.
According to LinkedIn attorney Donald Verrilli, over 10,000 of LinkedIn's members are employed by companies which are clients of HiQ. Verrilli said, “HiQ is ratting them out to their employers, broadcasting the very information they don’t want broadcasted.”
The San Francisco startup, HiQ, claims it has a First Amendment right to gather information from LinkedIn's members who opt 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.
On the other hand, LinkedIn attorney Donald Verrilli Jr. said his client can decide who should be privy to its website and can place conditions on that access, under the Computer Fraud and Abuse Act of 1986.
LinkedIn claims HiQ is cat-fishing its members by using anonymous, automated bots to bypass security measures and scrape data from its website, undermining LinkedIn’s privacy commitments to its members.
HiQ attorney Deepak Gupta stated that his client is not arguing against LinkedIn’s right to stop malicious intruders to its site, that instead, they feel that those security measures must be “narrowly tailored.”
Judge Chen said that if all websites were forced to meet a standard like that, it 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.”