U.S. judge says LinkedIn cannot block startup from public profile data

Though I disagree, I think basically understand your argument regarding why people should have to respect the wishes of a party when dealing with information that the party made public.

What I cannot understand is how such a system could reasonably be enforced. Let's say John Doe posts his resume on a job board. If I print out his resume, but he later updates it, am I now somehow in the wrong for retaining the old copy?

I am also a little puzzled by the notion that "persistence" is a new phenomenon. Of course there have been paper records and such for quite some time, but I'll put that aside for a moment. When I was younger, I was often cautioned to think carefully before acting, as a reputation decades in the making could be permanently ruined in just minutes. It seems to me that when it comes to mistakes and "bad" deeds, society's collective memory has always been rock solid.

Rather the persistence, I think the new factor is that things are less regional than before. You can't just pick up and move to a new town, because they basically have the same Internet everywhere.

In this case you go in and request the price and they tell you.

They can't stop you from sharing the price its public now.

I do find it odd that LinkedIn is fighting this considering they outright steal your contact list and will spam your friends and family for years.

Recently I was setting up my new phone and thought about installing their app and I thought to myself, why?

Eventually that thought came back to me when I was attempting to update my profile and simply decided to delete it entirely.

Agree. However, I think there is a difference between harvesting a database's contents and observing trends, data and creating algorithms based around that observed data.

Here's a page with what appears to be all the case filings:

https://www.hiqlabs.com/legal/

Today's Order is bad news for CFAA fans:

"In particular the Court is doubtful that the Computer Fraud and Abuse Act may be invoked by LinkedIn to punish HiQ for accessing publicly available data..."

This is the same judge who tried one of the early CFAA cases that LinkedIn cites in support of its position. He is no stranger to the statute. (Perhaps he disagreed with Breyer's ruling in 3Taps.)

In the past few years LinkedIn has updated their User Agreement and Privacy Policy and expanded permission for third parties to access member profiles. Access by third parties is not limited to only selected search engines.

They allegedly allow members to opt-out of these data sharing partnerships. Otherwise the sharing is on by default.

Whether they actually disclose the identities of these partners I am not sure.

The Court seems interested in what members actually want, instead of only what LinkedIn wants for its members.

It wants to know about how LinkedIn members can control access to their own information through settings versus how LinkedIn can control it, allegedly on it members' behalf.

The transcript of the hearing for the TRO, specifically the Court's comments and questions, gives some insight on Chen's thinking about this case. After today, I think he is on the side of users. A dismantling of the CFAA as a tool to intimidate potential competitors (including users) has been a long time coming.

LinkedIn is asked why they let the HiQ scraping continue for so long before sending a cease and desist. And they are asked how they know that scraping is harming user trust. Have any users actually complained?

They are also asked what happens if a member would want to "opt-in" to the HiQ scraping.

LinkedIn counsel starts rambling about the CFAA and the court cuts him off to go back this simple question.

"Why not give consumers an option?"

LinkedIn starts rambling about CFAA again, drawing comparisons to Nosal.

Court cuts him off. "... it seems completely different. I mean, I tried the Nosal case. That's getting into the interior mainframe of a company to steal trade secrets, not collecting data that is otherwise publicly available."

Court: "... if you think it's the same, you can think it's the same. It's not the same in my book."

Today's Order confirms this thinking. CFAA is out.

As for whether HiQ and Prof. Tribe can make raise a consitutional issue (which would be great for users IMHO):

"... once you say the CFAA arms private parties and sanctions private parties to block access to information that otherwise is now public and available to the public -- at least it now raise the specter, a higher specter of constitutional analysis than if it were purely private action."

It is still a longshot but the Court seems to recognise the constitutional question is possible if HiQ strengthens its arguments. Today's Order confirms this. Court stated it is not satisfied with HiQ's consitutional arguments "at this juncture." There is still time to refine these arguments.

Court to LinkedIn: "... I'm not moved by your argument that, well, you use a bot to receive information, that's totally outside the ambit of the First Amendment, assuming there's any First Amendment to apply here, which is the bigger threshold question, it seems to me."

Court to HiQ: "I don't know -- you're not making any technical U.S. Constitution First Amendment argument."

LinkedIn kept trying to argue Hicks as supporting their right to ban HiQ from access in spite of any possible First Amendment protections.

Court: "Frankly, I don't find Hicks exactly very helpful and informative to what we've got to deal with here."

The other interesting comments from the Court in the TRO hearing were that LinkedIn does not have a copyright violation to assert.

After today's Order, LinkedIn needs another theory given that CFAA is out. Based on the comments in the TRO hearing copyright infringement is probably not going to work either.